CHRISTY L. BRANDON, Trustee v. Gmac Mortgage, LLC

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTY L. BRANDON, Trustee,
Plaintiff - Appellant,
v.
GMAC MORTGAGE, LLC; MOUNTAIN
WEST BANK, N.A.; DOUGLAS W.
KIKKERT; CHERYL KIKKERT;
MILODRAGOVICH, DALE,
STEINBRENNER & NYGREN, P.C.;
MURIEL J. SIMMONS,
Defendants - Appellees.
No. 12-35968
D.C. No. 9:12-cv-00099-DWM
ORDER AND MEMORANDUM *
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted April 10, 2014
Seattle, Washington
Before: KOZINSKI, Chief Judge, and RAWLINSON and BEA, Circuit Judges.
We review this question of Montana law de novo, Fourth Investment LP v.
United States, 720 F.3d 1058, 1066 (9th Cir. 2013), and affirm.
FILED
MAY 08 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Under Montana law, the “statute’s plain language controls our interpretation
if we can discern the legislative intent from the plain meaning of the statute’s
words.” State v. Merry, 191 P.3d 428, 430 (Mont. 2008). The plain meaning of
Mont. Code Ann. (“MCA”) § 71-1-321 is clear: trust indentures are “considered to
be mortgages” if the trust indentures are “not executed in conformity” with the
Small Tract Financing Act (“STFA”). Thus, the district court did not err in
affirming the bankruptcy court’s determination that the defective trust indentures
should be treated as mortgages.
Moreover, Amsterdam Lumber v. Dyksterhouse, 586 P.2d 705 (Mont. 1978),
does not control this case because MCA § 71-1-321 was not enacted until after
Amsterdam Lumber was decided. Likewise, Earls v. Chase Bank of Texas, N.A.,
59 P.3d 364 (Mont. 2002), does not govern the effect of a purported STFA trust
indenture on a property greater than 40 acres. Finally, because MCA § 71-1-321 is
unambiguous, there is no reason to engage in a discussion of its legislative history.
Alvarado v. Cajun Operating Co., 588 F.3d 1261, 1268 (9th Cir. 2009).
The Plaintiff-Appellant’s motion to have a question certified to the Montana
Supreme Court is DENIED.
AFFIRMED.
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