Tamarack Foreclosure Order Granted
Judge Owen today granted Credit Suisse's decree of foreclosure. He also granted a Rule 56(b) certificate, which means that the time for any party who is dissatisfied with any of the other rulings on priority or validity of liens and mortgages now has 42 days to appeal to the Idaho Supreme Court. Credit Suisse made clear that it is not seeking to have the Sheriff's sale process start until the 42-day appeal period has expired.
Most of us who have observed the course of the case see this as a milestone. It means that the path for a prospective buyer to obtain clear title to the ski hill assets and the remainder of the development land has become less cluttered.
We still do not know who will appeal. Credit Suisse will argue that any party who appeals should post an appeal bond in an amount sufficient to protect Credit Suisse's loss - Credit Suisse may argue that an appeal bond should be well over $300 million.
An appeal bond is necessary if an appealing party wants to stop Credit Suisse from coming into possession of the property. The appealing party appeals, posts bond and requests that the judgment be "stayed" pending appeal. If a party appeals but does not post a bond, Credit Suisse may still proceed with a Sheriff's sale.
The Sheriff's sale process starts with issuance of a writ of execution. Credit Suisse then takes the writ to the Sheriff along with adequate fees for the Sheriff to start publication of notice. Credit Suisse also provides notice to claimants whose liens and interests will be foreclosed. Twenty days after the Sheriff first publishes notice, the Sheriff can conduct an auction, called a sheriff's sale in Idaho lien and mortgage law.
At the Sheriffs sale/auction, Credit Suisse can enter a credit bid - other parties would need to bring cash. The Sheriff issues a certificate of sale to the successful bidder/buyer, which entitles the buyer to possession. At that point, the one-year period of redemption begins. Issuance of the certificate also forecloses - that is, eliminates - both the judgment debtor's ownership and the liens of junior creditors.
Redemption can be made by the judgment debtor or any junior creditor whose lien of record was foreclosed by the Sheriff's certificate.
Judge Owen also announced that he has at hand a decision on the other motions for decrees of foreclosure and hinted that he is likely to grant at least some of them. Those include the BAG Fairmont parcels (motion filed by BAG Holdings), the Lake Wing (motion filed by MHTN), Trillium Townhomes (motion filed by EZA/OZ Architects), and the Village Plaza (motions filed by Tri-State Electric and Banner Sabey).