_____________

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 and

operate a family farm in Roberts County, South Dakota. In 1979, the

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 Birchems' prolonged failure to make payments on their loan,

the FmHA filed this foreclosure action. There being no dispute about the

Birchems' default, the district court granted the FmHA's motion for summary

judgment and ordered foreclosure. See United States v. Birchem,
-2-

883 F. Supp. 1334, 1342-43 (D. S.D. 1995). The Birchems appeal and we

affirm.

The FmHA commenced foreclosure proceedings 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 failure to take advantage of the

FmHA's loan service programs should be excused because the "FmHA failed to

provide notice [of the programs] by certified mail delivered personally to

[them]." Contrary to the Birchems' view, however, neither the statutory

scheme 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 the FmHA "provide[s] notice

by certified mail to each borrower." 7 U.S.C. § 1981d(a). As the district

court observed, the FmHA complied with the notice requirements of both the

statute and the regulations. See Birchem, 883 F. Supp. at 1336-37, 1341-

42. Because the Birchems were conducting their farming operation under a

confirmed chapter eleven bankruptcy plan, the FmHA initially sent a notice

about the loan service programs to the Birchems' attorney of record in

their bankruptcy case. Several months went by with 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 Birchems

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 with the certified mailing to

the Birchems' attorney, the FmHA mailed a copy of the notice to the

Birchems by certified mail. By reading this notice, the Birchems would

have learned about the loan service programs and realized the relevant

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 receipt for the FmHA's notice,

but states he misplaced the notice and never gave it to his parents. Even

so, the FmHA bears no responsibility for Chad's oversight. Like the

district court, we conclude the FmHA complied with the notice requirement

prescribed in § 1981d(a). See Birchem, 883 F. Supp. 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 district

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 likewise reject the Birchems' contention that the FmHA's failure

to give them personal notice violated their constitutional right to due

process. Due process only required the FmHA to use a notice procedure that

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 also

mailed the same notice to the Birchems' home mailing address. The delivery

of this notice to the Birchems' home satisfied the requirements of due

process. See Tulsa Prof'l Collection Servs., Inc. v. Pope, 485 U.S. 478,

490 (1988).

Next, the Birchems contend that even if the district court's decision

to order foreclosure was correct, the district court improperly ordered

their farm sold without a right of redemption. See S.D. Codified Laws

§§ 21-52-1 to 21-52-32 (Michie 1987). Although the Seventh and Ninth

Circuits have reached different conclusions about the application of state

redemption statutes to an FmHA foreclosure, see United States v. Einum, 992

F.2d 761, 761-63 (7th Cir. 1993); United States v. Ellis, 714 F.2d 953,

955-57 (9th Cir. 1983), the issue is not before us because the Birchems

waived any redemption rights they may have had under South Dakota law.

Even though state law prohibits the use of redemption waiver
-4-

clauses, see S.D. Codified Laws § 44-1-8 (Michie 1983), Congress has

authorized the Secretary of Agriculture to establish the terms of the

FmHA's loan instruments. See 7 U.S.C. § 1989. Along these lines, we have

recognized that Congress's authorization permits a federal agency to

include a waiver of state redemption rights in a borrower's mortgage. See

United States v. Great Plains Gasification Assocs., 813 F.2d 193, 196 (8th

Cir. 1987). But see Ellis, 714 F.2d at 957. The Birchems are bound by the

provision in their real estate mortgage that waives the benefits from any

state laws "allowing any right of redemption or possession following any

foreclosure sale." 

 

The Birchems' remaining challenges to the district court's summary

judgment order do not warrant an extended discussion. Although the

Birchems contend the grant of summary judgment was inappropriate because

there had been no meaningful opportunity for discovery, the Birchems

neither asked for a delayed ruling on the motion nor filed an affidavit

under Rule 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, 717

F.2d 1233, 1235 (8th Cir. 1983). We also reject the Birchems' contention

that the FmHA's supporting affidavits did not comply with Rule 56(e). The

affidavit by the FmHA's county supervisor was based on the information

contained in the FmHA's business records and the Assistant United States

Attorney's affidavit repeated the information contained in the district

court's file. See Birchem, 883 F. Supp. at 1342. Anyway, the Birchems

have not pointed out any factual disputes that would preclude summary

judgment. Adams v. Erwin Weller Co., 87 F.3d 269, 271 (8th Cir. 1996).

Having rejected the Birchems' contentions, we affirm the judgment of

the district court.
-5-

A true copy.

Attest:

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