Gustafson v. Poitra

20070301 Darrel Gustafson, Plaintiff and Appellee
v.
Raymond A. Poitra; Linus F. Poitra;
United States of America; and all persons
unknown, claiming any estate or interest
in, or lien or encumbrance upon, the
real estate described in the Complaint, Defendants
-----------------
Raymond A. Poitra, Defendant and Appellant
Appeal from: District Court, Northeast Judicial District, Rolette County
Judge Michael G. Sturdevant
Nature of Action: Foreclosure
Counsel:
Appellant: Pro se
Appellee: Pringle & Herigstad, P.C.
Term: 06/2008   Argument: 06/09/2008  01:30pm
ND cite: 2008 ND 159
NW cite: 755 N.W.2d 479

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Issues: Appellant's Statement of the Issues:
1. Can Appellee file an action in State District Court when the statute of limitations has not been toll in a foreclosure action?
2. Can Appellee file an action in State District Court when the overlying debt encumbering the real estate has been discharged in a bankruptcy proceeding in U.S. Bankruptcy Court?
3. Does a State District Court have jurisdiction to hear an action on a foreclosure action when the overlying debt has been discharged in a bankruptcy proceeding in U.S. Bankruptcy Court?
4. Must a Court provide a defendant due process with a notice of a hearing date prior to issuing a default judgment when Defendant has made a special appearance with a motion for dismissal and submitted evidence that the Court lacks subject matter jurisdiction?

Appellant's Supplemental Brief Issue

Must a State District Court grant a new trial after the North Dakota Supreme Court has granted Appellant's motion and issued an order remanding the case back to the District Court for a new trial?

Appellee's Statement of the Issues:
1. Defendant/Appellant Raymond Poitra failed to plead the statute of limitations as an affirmative defense; thus, the defense is deemed waived.
2. A bankruptcy discharge is no bar to a subsequent foreclosure; the discharge only relieves the bankrupt debtor from personal liability.
3. Defendant/Appellant Raymond Poitra was afforded due process.

Appellee's Supplemental Brief Issues

1.The Trial Court did not abuse its discretion when it denied Raymond Poitra's (herein R. Poitra) motion for new trial.
2.R. Poitra's appeal regarding the trial court's denial of his motion for new trial is frivolous; thus, Darrel Gustafson (herein Gustafson) should be awarded just damages and double costs, including reasonable attorney fees.

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Docket entries:
110/10/2007 NOTICE OF APPEAL: 10/04/2007
211/01/2007 RECORD ON APPEAL
311/19/2007 Clerk's Supplemental Cert. of Record on Appeal dated November 15, 2007, with entries 55-59 attach
411/20/2007 MOT. EXT/TIME APPELLANT BRIEF
511/20/2007 MOTION to Dismiss & Brief in Support
611/20/2007 E-FILED MOTION (Mot/Ext/ATB)
711/20/2007 Clerk's Supplemental Cert. of Record on Appeal dated November 16, 2007, with entries 60-65 attach.
811/21/2007 ACTION BY CHIEF JUSTICE (Mot/Ext/ATB). Granted: 12/13/2007
911/21/2007 ACTION BY CHIEF JUSTICE (Mot/Dismiss). Denied
1012/13/2007 APPELLANT BRIEF
1112/13/2007 APPELLANT APPENDIX
1212/14/2007 Certificate of Service of ATB & ATA on Mr. Rockstad & Mr. Soderstrom
1312/31/2007 Rec'd docket sheet, Judgment, & NOA for ATA
1412/31/2007 DISK NONCOMPLIANCE - ATB
1501/07/2008 MOT. EXT/TIME APPELLEE BRIEF
1601/07/2008 E-FILED MOTION - MAE
1701/08/2008 ACTION BY CLERK - MAE. Granted: 02/11/2008
1801/09/2008 Affidavit in Support of Mot/Ext/AEB (E-filed)
1902/04/2008 Letter from Reed Soderstrom dated 2-1-08 RE: Matthew Olson will be arguing for Appellee
2002/08/2008 APPELLEE BRIEF
2102/08/2008 E-FILED BRIEF - AEB
2202/08/2008 APPELLEE APPENDIX
2302/11/2008 Received $25 surcharge for AEB (Receipt 18008)
2402/14/2008 Received 7 copies of AEB from Central Duplicating
2502/28/2008 MOTION TO ALLOW NEWLY DISCOVERED EVIDENCE
2602/28/2008 NO ACTION TAKEN (Mot. to Allow Newly Discovered Evidence)
2703/12/2008 MOTION FOR REMAND W/ATTACHMENTS
2803/12/2008 ACTION BY CHIEF JUSTICE (Mot/Remand). Granted
2903/12/2008 ORDER OF REMAND
3003/12/2008 Order of Remand Mailed to Parties
3103/12/2008 Brief in Opposition to Appellant's Motion for Remand (e-filed)
3203/12/2008 EFILED RESPONSE (Brief in Opposition to Appellant's Mot. for Remand)
3303/17/2008 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
3403/20/2008 Refiled Record on Appeal After Remand (4 Supp & ROA)
3503/26/2008 5th Supplemental Clerk's Certificate dated 3-23-08 (Entry nos. 78-81)
3604/14/2008 6th Supplemental Clerk's Certificate dated 4-9-08 (Entry Nos. 82-86)
3704/14/2008 2nd NOA (filed in trial court 4-8-08)
3805/01/2008 Supplemental Appellant's Brief
3905/01/2008 Supplemental Appellant's Appendix
4005/02/2008 Certificate of Service of Supplemental Appellant's Brief
4105/08/2008 DISK NONCOMPLIANCE - Supplemental Appellant's Brief
4205/08/2008 Copies of Second Notice of Appeal and Order for Supplemental Appellant's Appendix
4305/23/2008 Supplemental Appellee's Brief (e-filed)
4405/23/2008 E-FILED BRIEF - SUPPLEMENTAL APPELLEE'S BRIEF
4505/23/2008 Supplemental Appellee's Appendix
4605/30/2008 Received 7 copies of Supplemental AEB from Central Duplicating.
4706/09/2008 APPEARANCES: Raymond A. Poitra; Matthew H. Olson
4806/09/2008 ARGUED: Poitra; Olson
4906/09/2008 ORAL ARGUMENT WEBCAST
5008/28/2008 DISPOSITION: AFFIRMED
5108/28/2008 UNANIMOUS OPINION: Kapsner, Carol Ronning
5208/28/2008 Costs on appeal taxed in favor of appellee
5308/29/2008 Judgment Mailed to Parties
5409/08/2008 Mot. Ext/Time Petition for Rehearing
5509/08/2008 E-FILED MOTION (MPR)
5609/08/2008 ACTION BY CHIEF DEPUTY CLERK. Granted: 09/25/2008
5710/06/2008 PETITION FOR REHEARING
5810/06/2008 Addendum to Petition for Rehearing
5910/07/2008 DISK NONCOMPLIANCE (PER) Letter from Poitra dated 10-6-08
6010/24/2008 ACTION BY SUPREME COURT (PER). Denied
6111/07/2008 MANDATE
6211/14/2008 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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