_____________ No. 95-2519SD

_____________ United States of America, * * Plaintiff-Appellee, * * v. * * Dennis L. Birchem, also known * as Dennis Lee Birchem; Connie * Appeal from the United States R. Birchem, also known as * District Court for the District Constance Rae Birchem; * of South Dakota. * Defendants-Appellants,* * Henry P. Birchem; Evelyn C. * Birchem; Chad Birchem; Roberts * County, South Dakota, a * political subdivision of the * State of South Dakota, * * Defendants. *

_____________ Submitted: October 23, 1996 Filed: November 14, 1996

_____________ Before FAGG, BOWMAN, and HANSEN, Circuit Judges.

_____________ FAGG, Circuit Judge.

Dennis L. Birchem and Connie R. Birchem (the Birchems) own an d operat e a family farm in Roberts County, South Dakota. In 1979, th e Birchems obtained a large loan from the Farmers Home Administration (FmHA)

. As security, the Birchems gave the FmHA a junior mortgage on their farm. Following the Birchem s' prolonged failure to make payments on their loan, the FmHA filed this f oreclosure action. There being no dispute about the Birchems' default, the district court granted the FmHA's motion for summar y judgment and ordered foreclosure. See United States v. Birchem ,

### -2-

883 F. S upp. 1334, 1342-43 (D. S.D. 1995). The Birchems appeal and w e affirm.

The FmHA commenced foreclosure proce edings after the Birchems failed to make a timely request for loan servicing. See 7 U.S.C. § 1981d(e ) (1988). According to the Birchems, their failur e to take advantage of the FmHA's loan service programs should be excused b ecause the "FmHA failed to provide notice [of the programs] by certified ma il delivered personally to [them]." Contrary to the Birchems' view, however, neither the statutory sch eme nor the implementing regulations require personal notice. See 7 U.S.C. § 1981d(a); 7 C.F.R. §§ 1951.907(d), .907(f) (1989). Instead, the statute's notice requirement is satisfied when t he FmHA "provide[s] notice by certified mail to each borrower." 7 U.S.C. § 1981d(a). As the distric t court observed, the FmHA complied with the notic e requirements of both the statute and the regul ations. See Birchem , 883 F. Supp. at 1336-37, 1341- 42. Because the Birc hems were conducting their farming operation under a confirmed chapter eleven bankruptcy plan, the Fm HA initially sent a notice about the loan service programs to the Birchems' attorney of record i n their bankruptcy case. Several months went by w ith no response. The FmHA then sent the notice and the necessary forms to the Birchems' attorney by certified mail. See 7 C.F.R. § 1951.907(d). Although the Birchem s currently assert their attorney was no longer representing them when the notices were mailed, the Birchems' premailing conversations with the FmHA suggest otherwise. Regardless, coincidental wit h the certified mailing to the Birch ems' attorney, the FmHA mailed a copy of the notice to th e Birchems by certified mail. By reading this notice, the Birchems woul d have learned about the loan service programs and realized the relevan t forms that needed to be completed within the next forty-five days were in the hands of their attorney. Nevertheless, the Birchems did not respond to the FmHA's notice until several months later. To justify their delay, the Birchems rely on the affidavit of their college-aged son, Chad Birchem

. In

### -3-

his affidavit, Chad admits signing a postal rece ipt for the FmHA's notice, but states he misplaced the notice and never gav e it to his parents. Even so, the FmHA bears no responsibility for Chad's oversight. Like th e district court, we co nclude the FmHA complied with the notice requirement prescribed in § 1981d(a). See Birchem , 883 F. S upp. at 1339, 1341-42. We will not consider the Birchems' argument that the FmHA failed strictly to comply with § 1981d(b). Instead of raising this issue in the distric t court or their opening brief, the Birchems made the argument for the first time in a footnote to their reply brief. See United States v. Davis , 52 F.3d 781, 783 (8th Cir. 1995).

We likewi se reject the Birchems' contention that the FmHA's failure to give them personal notice violated their constitutional right to du e process. Due process only required the FmHA to use a notice procedure tha t
was reasonably calculated to inform the Birchems of their preforeclosure options. See Mennonite Bd. of Missions v. Adams , 462 U.S. 791, 795 (1983)

. Aside from the notices mailed to the Birchems' attorney, the FmHA als o mailed the same notice to the Birchems' home mailing address. The deliver y of th is notice to the Birchems' home satisfied the requirements of du e process. See Tulsa P rof'l Collection Servs., Inc. v. Pope , 485 U.S. 478, 490 (1988).

Next, the Birchems contend that even if the district court's de cision to ord er foreclosure was correct, the district court improperly ordere d their farm sold without a right of redemption. See S.D. Codified Law s §§ 21-52-1 to 21-52-32 (Michie 1987). Although the Seventh and Nint h Circuits have reached different conclusions abou t the application of state redemption statutes to an FmHA foreclosure, see United States v. Einum , 99 2 F.2d 761, 761-63 (7th Cir. 1993); United States v. Ellis , 714 F.2d 953 , 955-57 (9 th Cir. 1983), the issue is not before us because the Birchem s waive d any redemption rights they may have had under South Dakota law

. Even though state law prohibits the use of redemption waiver

### -4-

clau ses, see S.D. Codified Laws § 44-1-8 (Michie 1983), Congress ha s authori zed the Secretary of Agriculture to establish the terms of th e FmHA's loan instruments. See 7 U.S.C. § 1989. Along these lines, we have
re cognized that Congress's authorization permits a federal agency t o include a waiver of state redemption rights in a borrower's mortgage. See United States v. Great Plains Gasification Assoc s. , 813 F.2d 193, 196 (8th Cir. 1987). But see Ellis , 714 F.2d at 957. The Birchems are bound by th e provision in their re al estate mortgage that waives the benefits from any state laws "allowing any right of redemption or possession following any foreclosure sale."

Th e Birchems' remaining challenges to the district court's summar y judgment order do not warrant an extended discussion. Although th e Birchems contend the grant of summary judgment was inappropriate because there had been no meaningful opportunity for discovery, the Birchem s neither a sked for a delayed ruling on the motion nor filed an affidavi t under R ule 56(f) of the Federal Rules of Civil Procedure. See Allen v

. Bridgestone/Firestone , Inc. , 81 F.3d 793, 797 (8th Cir. 1996). Thus, the Birchems "cannot complain that the district court did not provide [them]

an adequate opportunity to conduct discovery." Cassidy, Inc. v. Hantz , 71 7 F.2d 1233, 1235 (8th Cir. 1983). We also reject the Birchems' contention that the FmHA's supporting affidavits did not co mply with Rule 56(e). The affidavit by the FmHA's county supervisor was based on the informatio n contained in the FmHA's business records and the Assistant United States Attorney's affidavit repeated the information contained in the distric t court's file. See Birchem , 883 F. Supp. at 1342. Anyway, the Birchem s have no t pointed out any factual disputes that would preclude summar y judgment. Adams v. Erwin Weller Co. , 87 F.3d 269, 271 (8th Cir. 1996).
Having rejected the Birchems' conten tions, we affirm the judgment of the district court.

### -5- A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.