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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Jourdan v. Nationsbanc Mortgage Corp. (03/08/2002) sp-5545

Jourdan v. Nationsbanc Mortgage Corp. (03/08/2002) sp-5545

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878.


AVA JOURDAN,                  )
                              )    Supreme Court No. S-9194
             Appellant,            )
                              )    Superior Court No.
     v.                       )    3AN-94-1356 CI
LOAN MORTGAGE            )    [No. 5545 - March 8, 2002]
& CRABTREE; PACIFIC           )
and CHARLES R. ELDER, JR.,         )
             Appellees.            )

          Appeal  from the Superior Court of the  State
          of    Alaska,    Third   Judicial   District,
          Anchorage,   Karen   L.  Hunt,   Judge,   and
          Stephanie E. Joannides, Judge pro tem.

          Appearances:  Ava Jourdan, pro se, Anchorage,
          Appellant.    Richard   Ullstrom,   Routh   &
          Crabtree,   APC,  Anchorage,  for   Appellees
          Nationsbanc  Mortgage  Corporation,   Federal
          Home   Loan  Mortgage  Corporation,   Richard
          Ullstrom,  Richard  Crabtree,  and  Routh   &
          Crabtree.  No appearance by Appellees Pacific
          Northwest   Title  Company,   Stewart   Title
          Company and Charles R. Elder, Jr.
          Before:    Fabe,  Chief  Justice,   Matthews,
          Bryner,  and Carpeneti, Justices.  [Eastaugh,
          Justice, not participating.]

          FABE, Chief Justice.


          Ava   Jourdan   brings  this  action  challenging   the

foreclosure  of her residence.  Jourdan claims that the  superior

court improperly granted summary judgment, arguing both that  the

foreclosure  was  procedurally  flawed  and  that  there  existed

material  issues  of  factual dispute.   Jourdans  various  legal

challenges  have  been heard before a number  of  superior  court

judges.  We affirm all of the decisions of the superior court.


          In December 1985 Charles Elder executed a deed of trust

against  a  residence located at 1725 Amherst Circle in Anchorage

to  secure  a  note  payable to Alaska Mutual Bank.   Elder  then

deeded the property to Royalty Company, which was wholly owned by

Ava  Jourdan.  The note and deed of trust were then  assigned  by

the  bank  to the Federal Home Loan Mortgage Corporation (Freddie

Mac).1   A  non-judicial foreclosure was initiated in 1991  after

the  payments on the note went into default.  Jourdan stayed  the

foreclosure   by   putting  Royalty  Company  into   Chapter   11

bankruptcy.  Royalty Companys bankruptcy was later converted to a

Chapter  7  bankruptcy when Jourdan filed a  personal  Chapter  7

bankruptcy.  Freddie Mac was able to obtain relief from the  stay

and  recommence the foreclosure action.  The foreclosure sale was

conducted on February 10, 1994.

          In  early  February 1994 Jourdan received a copy  of  a

facsimile  from  Freddie  Mac  indicating  that  the  amount   of

arrearages  was  approximately $35,000.  Freddie Mac  offered  to

accept one-half of the amount immediately and the other half over

the course of the next six months in exchange for terminating the

foreclosure  proceedings.  Jourdan responded by offering  to  pay

$15,000 immediately and another $15,000 at the end of six months.

This  was  unacceptable to Freddie Mac.  On  February  10,  1994,

shortly  before the foreclosure sale, Jourdan delivered a  letter

to  Richard Ullstrom and Richard Crabtree, the attorneys handling

the  foreclosure, stating that she wished to accept Freddie  Macs

          offer of a workout agreement, but adding additional conditions.

Ullstrom  and  Crabtree  did not consider  this  to  be  a  valid

acceptance and proceeded with the foreclosure sale.  Freddie  Mac

was the successful bidder at the sale.

          On February 14, 1994, Jourdan filed a complaint seeking

a  temporary restraining order to halt the recording of the  deed

of  trust.   Superior  Court Judge Milton M. Souter  granted  the

restraining  order and later issued a preliminary  injunction  on

February 25 on the condition that Jourdan pay $17,500 by February

28,  in  line with the workout agreement Freddie Mac had  offered

Jourdan.  Judge Souter ordered that the injunction was to  expire

on  its  own terms on February 28 if the necessary money was  not

paid.   When Jourdan failed to pay, Freddie Mac moved for partial

summary  judgment.   On September 26, 1994, the  superior  court,

Judge  Souter  again presiding, granted summary  judgment  as  to

contractual  interference, punitive damages, bad  faith  dealing,

injunctive  relief, and disparate treatment.   Jourdan  moved  in

January  1995 to amend her complaint to repeat the two  surviving

counts   breach  of  contract and specific performance   and  add

claims  of defective foreclosure, constructive eviction, invasion

of  privacy, unlawful forced entry, and intentional infliction of

emotional  distress.  In a second motion to amend her  complaint,

Jourdan  attempted to add claims of violating her right to  enjoy

her   home,   misuse  of  process,  disparagement  of  character,

deprivation   of   civil  rights,  malicious   prosecution,   and

disparagement  of title.  This second amended complaint  was  not

ruled upon by the trial court.

          Oral  argument  was  set for September  29,  1995,  but

Jourdan moved for and was granted an open-ended continuance based

on an affidavit from her psychiatrist that for the time being she

was unable to deal with complex legal matters.  In September 1996

Freddie  Mac  moved  to require Jourdan to show  cause  why  oral

arguments should not proceed.  Jourdan responded that the  burden

was  on  Freddie  Mac  to demonstrate that Jourdan  was  able  to

proceed.   After  Freddie  Mac moved  for  the  imposition  of  a

conservatorship, Superior Court Judge Karen L.  Hunt  ruled  that

Jourdan  was  competent to conduct her own legal  affairs.   This

order  further  required Jourdan to reactivate her pending  civil

litigation.  When Jourdan failed to comply, Freddie Mac moved  to

proceed  with oral argument, which was held before Judge Hunt  on

March  26, 1998 with Jourdan participating.  On August 27,  1998,

Judge  Hunt  granted partial summary judgment against Jourdan  on

the  amended  complaint.   A  request for  partial  judgment  for

possession of the real property was granted, effective August  1,

1999.   Jourdan  filed  a motion for reconsideration,  which  was

denied  by Superior Court Judge Stephanie E. Joannides.   Jourdan

now appeals.


          We   review  summary  judgment  orders  de  novo.2   In

reviewing  a grant of summary judgment, this court must determine

whether any genuine issue of material fact exists and whether  on

the established facts the moving party is entitled to judgment as

a  matter  of law.3  We use our independent judgment in reviewing

conclusions  of law.4  Findings of fact will only be reversed  if

clearly  erroneous.5   A  genuine  issue  of  fact  exists   when

reasonable  jurors  could differ on their interpretation  of  the



     A.   The Superior Court Properly Granted Summary Judgment on
          the Absence of a Workout Agreement.
          As  a  threshold issue, this court must decide  whether

the  alleged  workout agreement between Jourdan and  Freddie  Mac

concerning  the February 10, 1994 foreclosure sale precluded  the

entry  of  summary  judgment  against  Jourdan  with  regard   to

possession of the house.  Judge Hunt ruled that while there was a

genuine  issue of material fact as to whether a workout  contract

existed,  Jourdan  did not have the ability to  perform  on  that

contract.   This  conclusion  was based  in  part  upon  Jourdans

inability to pay the $17,500 owed after the injunction was issued

          and the sale forestalled to give her the opportunity to pay.

Under  Alaska law, a plaintiff cannot collect damages in a breach

of contract action without showing the willingness to perform his

or  her  own obligation,7 which in this case would be to pay  the

amount owed under the alleged workout agreement.  Because Jourdan

was  given  the opportunity to pay her outstanding debt  and  did

not,  she  cannot  bring an action for breach of contract  here.8

Consequently,  the  summary judgment order  against  Jourdan  was

properly granted.9

     B.   The Notice of Foreclosure Was Valid.

          Jourdan alleges that the foreclosure action was invalid

primarily due to the extended length of time between when  notice

of  the  sale was given and the sale itself.  Jourdan notes  that

three years passed between the initial publication notice of  the

sale in the Anchorage Times10 in August through September of 1991

and  the foreclosure sale on February 10, 1994.  However,  notice

of  the  sale  was posted in the Alaska Journal of Commerce  from

November  15  to December 6, 1993, only a short time  before  the

foreclosure sale.  Because of the subsequent publication,  it  is

not  necessary  for  us  to  reach the  issue  of  the  potential

invalidity of a notice published two and a half years before  the

actual sale took place.

          Jourdan  then  claims that the place of publication  of

the   second   notice   was  insufficient   to   meet   statutory

requirements.   Jourdan concedes the validity of  publication  in

the  Anchorage Times, but disputes the validity of the subsequent

publication  of notice in the Alaska Journal of Commerce  on  the

grounds  that it did not have a large enough readership.   Alaska

statutes  require a notice of sale to be published in a newspaper

that  has  a  total paid circulation or paid distribution  of  at

least  500 copies, or 10 percent of the total population  of  the

judicial district, whichever is less.11  By Jourdans own figures,

the  Alaska  Journal  of  Commerce satisfies  both  requirements.

Jourdan  stipulates that the journal has 4,100 paid  subscribers,

          well over the 500 subscriber threshold, and reaches ten percent

of  Anchorages  population.12  Therefore, her objection  here  is

without merit.

          Jourdan  also  objects to the physical posting  of  the

notice of sale, claiming the notice did not list the date of  the

foreclosure sale and was not posted at the courthouse.   However,

this  requirement is not contained in the statute on sale of real

property.13  Notice was posted on November 9, 1993, though it  is

unclear  what  the stated date of sale was.14  Any delay  in  the

posting from the stated date to the actual February 10, 1994 sale

date  was  not only minimal, but also due to Jourdans  own  legal


     C.   Jordans Other Eviction Claims Are Without Merit.

          Jourdan  raises  a  variety of  other  eviction-related

claims,  such  as unlawful forcible entry, defective foreclosure,

constructive   eviction,   invasion   of   privacy,   intentional

infliction of emotional distress, and punitive damages.   All  of

these  claims are based either on rightful possession of property

or  on  inappropriate government action.  In both instances  they

must be dismissed.

          Jourdan  did  not  have  rightful  possession  of   her

property  and thus cannot claim harms based on the mere  fact  of

her  eviction.   For example, Jourdan claims that  the  procedure

used to evict her was illegal because she did not have a landlord-

tenant relationship with her creditor.  However, a forcible entry

and   detainer   action   is  not  limited   to   landlord-tenant

relationships but rather is meant to cover all possession of real

property.  Jourdan cites Modrok v. Marshall15 and AS 09.45.06016 to

support  her  argument.  These authorities, though,  specifically

grant   entry  where  appropriate  legal  procedures  have   been

followed.   Indeed,  Modrok addressed a situation  other  than  a

landlord-tenant relationship  an attempt to evict a husband  from

a  marital  home following a divorce settlement   and  held  that

forcible detainer actions applied.17

          As to the manner of her eviction, Jourdan cannot in the

present suit sue government officials for their official conduct.

Jourdan  claims in several places that in executing the  writ  of

assistance  to  evict her, the Anchorage Police  Department  used

excessive force when they entered her house on November 5,  1999.

The  individual  police officers are not parties to  the  present

suit, nor is the Anchorage Police Department.  Consequently, this

case  cannot  address  claims in which government  officials  are

being  sued for their official conduct.  Jourdan further  alleges

that  the  police  officers  were acting  via  instructions  from

Ullstrom and Crabtree.  Though the police officers were executing

a  court  order  for a motion brought by Freddie Macs  attorneys,

they  were  not operating as agents of Ullstrom and Crabtree  but

rather were carrying out standard police functions.

     D.   Jourdans Status as a Pro Se Litigant Was Given Adequate
          Jourdan  suggests that the superior court  should  have

given her special consideration because she is a pro se litigant.

She cites several cases to support her claim.18  However, Jourdan

does  not  make clear what accommodations she feels she  deserved

but  was  denied.   Jourdan was allowed to present  evidence  and

affidavits in her defense.  Jourdan seems to claim primarily that

Judge Joannides erred by not ruling on her second motion to amend

her  complaint.  Jourdan presents no argument explaining why  the

failure to rule was due to Jourdans status as a pro se litigant.

          The  record  does not support Jourdans claim  that  her

status as a pro se litigant was not given adequate accommodation.

Jourdan  was allowed to file an amended complaint on January  10,

1995.  Her second attempt to amend her complaint came three years

later  on  January  21, 1998.  The court, after  several  delays,

scheduled oral argument for March 26, 1998.  The trial court  did

not address the request to amend the complaint a second time, but

it  did  address  Jourdans late-filed response  to  Freddie  Macs

request  for  admissions filed in 1995, and  Jourdans  late-filed

request  for  admission of new evidence.   In  the  interests  of

          resolving disputes on the merits and making sure that Jourdan had

a  fair hearing, the court accepted both of these motions.  Thus,

it  does  appear that the court was willing to show some leniency

to Jourdan, perhaps because of her pro se status.

          Brown v. Ely gives the trial court broad discretion  in

deciding  whether or not to allow a party to amend a complaint.19

The fact that amended complaints are potentially allowed, though,

does  not  mean  that the court is required to allow  them.   The

allegations contained in the second amended complaint  that  were

not contained in earlier complaints were charges of violating her

right  to  enjoy  her home, misuse of process,  disparagement  of

character,  deprivation  of civil rights, malicious  prosecution,

and  disparagement of title. Like those above, these  claims  are

all  predicated  on  rightful  possession  of  the  property   in

question.   Because  Jourdans house was properly  foreclosed,  it

would  have  been futile to allow the claims listed  in  Jourdans

attempted  second  amendment  to proceed.   Judge  Joannides  was

therefore not obligated to accept Jourdans requested amendment.20

     E.   Charles R. Elder Was Not an Indispensable Party.

          Jourdan  argues  that  Charles R.  Elder,  Jr.,  or  by

extension his estate, should be included in the suit as  both  an

indispensable party and a real party in interest.21 Jourdan filed

a  motion to join Elder as an indispensable party in March  1999.

Judge  Joannides rejected this motion on the grounds  that  Elder

had   no  significant  involvement  with  the  issues  now  being

litigated between Jourdan and Nationsbanc.

          Freddie Mac contends that Elder could not have been  an

indispensable party because he deeded any interest he had in  the

property  to  Jourdan many years prior.  Elder, by  Jourdans  own

admission, had signed a quitclaim deed transferring the  property

to Jourdans company, Royalty Company, in December 1985.

          Alaska  Rule  of  Civil  Procedure  19(a)  states  that

parties can be joined where adequate relief cannot be granted  in

the   absence  of  that  party  or  where  the  joinder  of   the

          indispensable party is necessary for an existing party to protect

their   interests.   Under  these  criteria,  Elder  is  not   an

indispensable  party.22   Jourdan is  challenging  a  foreclosure

action; whether or not Elder is joined will have no effect on the

remedy  that  Jourdan is seeking.  Consequently, the decision  of

Judge Joannides not to join Elder as a party is affirmed.23

     F.   There  Was  No  Error Regarding the  Appointment  of  a
          Conservator for Jourdan.
          Jourdan  raises an issue concerning whether  or  not  a

conservator should have been appointed for her after Freddie Macs

September 1996 motion to require Jourdan to show cause  why  oral

arguments  should not proceed, but it is not clear  what  she  is

arguing.  Jourdan first claims that the evidence did not rise  to

a level that would justify Freddie Mac filing for a conservator.24

Jourdan  then  claims that Judge Hunt erred  in  not  recognizing

Jourdans incompetence and appointing a conservator for her.25  It

appears Jourdan is arguing that Freddie Mac should not have  been

allowed  to  petition for a conservator before the judge  herself

decided  if a conservator was necessary.26  However, Freddie  Mac

did  not  do  anything  illegal in filing a motion  requesting  a

conservatorship for Jourdan.  The court eventually ruled  Jourdan

competent to conduct her own legal affairs.  She does not  appeal

this decision.  Consequently, there are no reasonable grounds  on

which to address the conservatorship issue on appeal.

     G.   The  Superior  Court Was Correct To Deny  a  Waiver  of
          Jourdans Supersedeas Bond.
          Jourdan  contends  that the supersedeas  bond  she  was

required  to post as a condition of staying the judgment  of  the

superior  court  should  have been waived  in  order  to  prevent

erosion  of  public confidence in the judicial system  until  the

Supreme Court made its ruling on this appeal.  Jourdan wanted  to

assign her future Permanent Fund Dividend checks as security  for

the  supersedeas bond, but Judge Joannides would not allow  this.

Jourdan  further asserts that because she was not in a  landlord-

tenant relationship the superior court committed reversible error

by basing the supersedeas bond on rent.

          An  order requiring a supersedeas bond is reviewed  for

abuse  of discretion.27  Under Alaska Appellate Rule 204(d),28  a

supersedeas bond can be required when the appellant seeks to stay

an action pending appeal.29  Jourdan sought such a stay, therefore

the  requirement  of a supersedeas bond was reasonable.   Freddie

Mac  argues that because the action in question was a foreclosure

on a house, it was reasonable to base the supersedeas bond on the

amount  of rent that would have been obtainable were Freddie  Mac

allowed to rent out the house.  It was not an abuse of discretion

for Judge Joannides to have so decided.

          Jourdan also claims that she should not be required  to

post  a  supersedeas bond because she is litigating in the public

interest.   Determination of whether a litigant is litigating  in

the  public  interest  is made on a case-by-case  basis.30   This

determination is based on whether the case will effectuate strong

public  policies; whether a large number of people  will  benefit

from  the  litigation; whether only a private  party  could  have

brought  the  litigation;  and whether the  litigant  would  have

brought the suit for personal benefit.31  Jourdan satisfies  only

the  third of these criteria:  Her case is very limited in scope;

it concerns only herself; only a private party could have brought

this case, though this is true of a majority of civil cases;  and

the  case was entirely for her personal benefit.  Jourdan  claims

that  she  is a public interest litigant because the decision  in

          this case will have precedential value.  However, this does

nothing to distinguish Jourdan from any other litigant.   She  is

clearly not a public interest litigant.

     H.   Jourdan Was Not Adversely Affected by Alleged Discovery
          Abuse and Other Evidentiary Issues.
          Jourdan alleges discovery abuse occurred because  Judge

Milton  Souter  denied  on June 21, 1995  her  motion  to  compel

discovery.   The  order  was denied without  comment,  so  it  is

difficult  to tell on what grounds Judge Souter relied.   Jourdan

does  not  clarify the nature of the documents she believes  were

withheld.   Freddie Mac responds both that they did  comply  with

applicable automatic discovery requirements under then-Civil Rule

16.132 and that Jourdan never made any specific discovery requests

in  the four years that the case was pending.  The party claiming

a  discovery  error  or  abuse has  the  burden  of  showing  the

existence of that error or abuse, though after this demonstration

the  burden  does  shift  to the party that  allegedly  concealed

discoverable documents.33  Absent clearer allegations by Jourdan,

it  is impossible to engage in meaningful legal analysis on  this


          Jourdan  further  argues that an  evidentiary  hearing,

including  the  presentation and cross-examination of  witnesses,

should  have  taken place at the March 26, 1998 summary  judgment

hearing before Judge Hunt.  However, Alaska Civil Rule 56,  which

lays out the procedures for summary judgment hearings, allows for

affidavits,   depositions,   interrogatories,   pleadings,    and

admissions, but does not allow for live witnesses.35

          Finally,  Jourdan  asserts that  Judge  Hunt  committed

reversible  error  by  giving  great  evidentiary  weight  to  an

affidavit notarized by Crabtree, one of the parties to this case.

The  affidavit in dispute attested to the fact that Jourdan would

not  be able to raise the money necessary to cover her debt prior

to  foreclosure.  But because Jourdan failed to  perform  on  the

workout  agreement  despite being given the  opportunity  by  the

superior court to do so, the disputed affidavit was not necessary

          to Judge Hunts decision.

     I.   Judge Hunt Correctly Declined To Recuse Herself.

          Jourdan  filed a motion on October 14, 1998, about  six

weeks  after  Judge Hunt had issued her opinion,  asserting  that

Judge  Hunt should have recused herself from the summary judgment

hearing.   This  motion  was  denied  without  comment.   Jourdan

asserts   three   reasons  why  Judge  Hunt  should   have   been

disqualified  from her case: (1) Judge Hunt issued  contradictory

evidentiary rulings; (2) Judge Hunt treated Jourdan with disdain;

and (3) Judge Hunt was appointed by Governor Sheffield, who was a

personal friend of Charles Elder, allegedly a party to the case.

          The justifiable reasons for recusal of a judge are laid

out  in AS 22.20.020(a).36  None of the three reasons for recusal

offered by Jourdan falls within the reasons for recusal listed in

the  statute.  Judges are required to recuse themselves not  only

if  there  is actual bias but also if there is the appearance  of

bias.37   However, the mere appearance of bias requires a greater

showing by the petitioner for recusal.38  The refusal by a  judge

to be recused from a case is reviewed for an abuse of discretion.39

Issuing an evidentiary ruling against Jourdan does not constitute

bias.40  The evidentiary ruling is appealable and has in fact been

appealed.   Even if Judge Hunts ruling on this evidentiary  issue

were  found  to be improper, this does not rise to the  level  of


          Reviewing Jourdans motion for recusal reveals that most

of her claims of bias are based on Judge Hunts application of the

law.    By  themselves,  interpretations  of  the  law  are   not

sufficient to demonstrate the existence of bias.41  Jourdan claims

that  Judge Hunt smirk[ed] and laugh[ed] at her during the  March

26,  1998 hearing.  However, the statements that Jourdan  alleges

show Judge Hunts disdain are more appropriately interpreted as an

explanation of proper court procedure.42  While it is difficult to

tell  from  the  transcript the demeanor of  Judge  Hunt,  absent

further  evidence  by Jourdan it is impossible to  conclude  that

          Judge Hunt acted inappropriately.  Finally, being appointed by a

governor who allegedly was a friend of one of the parties43  does

not  in  itself  constitute a close enough  connection  to  merit

recusal of the judge.44

          Jourdan further alleges that she should have been given

the  opportunity  to preempt Judge Hunt under Alaska  Civil  Rule

42(c).45   It  is  unclear from Jourdans limited presentation  of

facts  whether  or  not she had an opportunity to  preempt  Judge

Hunt.  Regardless, her argument loses any effect it may have  had

due to the fact that Jourdan waited until after Judge Hunt issued

her ruling to assert that Judge Hunt should have recused herself.46

          Jourdan  further asserts that Superior Court Judge  Sen

K.  Tan  should have recused himself from hearing one of Jourdans

motions  in the case because he was not assigned to the case  and

because he had been assigned to another case in which she  was  a

party  concerning the removal of Jourdans personal  property  and

household goods.  Jourdan does not specify which motion this  is,

but  it  appears  she is referring to Judge Tans order  affirming

Judge  Hunts  refusal to recuse herself.   If  so,  review  of  a

judicial  officers disqualification is required as  a  matter  of

law.47   Furthermore, a judge who has previously  presided  in  a

trial involving the plaintiff, and held against the plaintiff, is

not  automatically required to be recused from any  future  cases

involving the plaintiff.48


          Ava  Jourdan raises a variety of claims surrounding the

1994  foreclosure  on  her home.  The dispute  before  the  court

arises  from the summary judgment order entered by Judge Hunt  on

August  27, 1998 and related subsequent matters.  Because all  of

Jourdans  claims  are without merit, the orders of  the  superior

court are AFFIRMED in all respects.

     1     There are eight parties listed in the case caption  as
appellees.   The lawyers who filed the appellees brief  represent
all appellees except for Pacific Northwest Title Company, Stewart
Title  Company and Charles R. Elder, Jr.  The appellees  will  be
referred  to  collectively as Freddie  Mac.   Whether  Elder  and
Stewart Title Company are parties to this case is in dispute.

     2    Nielson v. Benton, 903 P.2d 1049, 1052 (Alaska 1995).

     3    Id. at 1051-52.

     4     R&Y,  Inc. v. Municipality of Anchorage, 34 P.3d  289,
292 (Alaska 2001).

     5    City of Hydaburg v. Hydaburg Co-op Assn, 858 P.2d 1131,
1135 (Alaska 1993).

     6    Bliss v. Bobich, 971 P.2d 141, 145 n.4 (Alaska 1998).

     7     T.  Ferguson Constr., Inc. v. Sealaska Corp., 820 P.2d
1058,  1061 (Alaska 1991) (An obligee who believes, for  whatever
reason,  that  the obligor will not or cannot perform  without  a
breach,  is always free to act on that belief. . . .  If  he  can
prove  that his belief would have been confirmed, he is at  least
shielded  from  liability  even  if  he  has  failed  to  give  a
performance  that is due before that of the obligor  or  has,  by
making  alternative arrangements, done an act that amounts  to  a
repudiation.)  (quoting from Restatement  (Second)  of  Contracts
251 cmt. b (1981)).

     8     Jourdan  does  allege that there were  disputed  facts
concerning  the  existence of a workout  agreement,  specifically
that  she  had  a potential buyer for the property. However,  she
does  not dispute that in actuality she failed to pay the  amount
specified in the injunction.

     9    Jourdan claims that her eviction violates the Homestead
Act.  See AS 38.09.010-900.  The land on which Jourdans house  is
located  has  not  been designated as land for  homestead  entry.
Thus, the Homestead Act does not apply.  See AS 38.09.010.

     10     Jourdan  claims  the  place of  publication  was  the
Anchorage  Daily News, but the record shows the actual  place  of
publication to be the Anchorage Times.

     11    AS 09.35.140(2)(B).

     12     The  Alaska  Journal of Commerce has previously  been
determined  by  the  court system to be an  acceptable  alternate
location  of publication to the Anchorage Daily News.   Moreover,
the  Anchorage Times had ceased publication by the  time  of  the
second notice, so re-publication in the same newspaper would have
been impossible.

     13    See AS 09.35.140:

               (1)   notice  of  the sale  of  personal
          property  is  given by posting a  written  or
          printed notice of the time and place of  sale
          in  three public places within five miles  of
          the  place where the sale is to be held,  not
          less than 10 days before the day of sale; one
          of  the  notices shall be posted at the  post
          office nearest to the place where the sale is
          to take place; (2) notice of the sale of real
          property is given by posting a similar notice
          particularly    describing   the    property,
          including  the  propertys street  address  if
          there  is  a street address for the property,
          not  less than 30 days before the day of sale
          in three public places, as provided in (1) of
          this  section, and publishing a copy  of  the
          notice  four  times, once  a  week  for  four
          successive  weeks in a newspaper  of  general
          circulation published nearest to the place of
     14     Freddie Mac claims a stated date of December 7, 1993,
but there is nothing in the record to confirm this.

     15     523  P.2d  172, 174 (Alaska 1974) (It is well-settled
that where title to the property is in dispute, dispossession  by
this summary procedure may not be ordered. Instead, the plaintiff
must establish his paramount title in an action for ejectment.).

     16     The statute provides: A person may not enter upon any
land,  tenement,  or other real property except  in  cases  where
entry is given by law.  In those cases the entry may not be  made
with force but only in a peaceable manner.

     17    523 P.2d at 175.

     18     See  Breck  v. Ulmer, 745 P.2d 66, 75  (Alaska  1987)
(holding that the trial judge should inform a pro se litigant  of
the  proper  procedure  for the action he  or  she  is  obviously
attempting  to accomplish); Haines v. Kerner, 404 U.S.  519,  520
(1972)  (holding that allegations in a pro se complaint are  held
to  less  stringent  standards than formal pleadings  drafted  by
lawyers); Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975)
(holding  that entry of summary judgment against a pro  se  state
prisoner  was  inappropriate where  the  litigant  had  not  been
informed  of  his  right to file counter-affidavits);  Hudson  v.
Hardy,   412 F.2d 1091, 1094-95 (D.C. Cir. 1968) (holding that  a
pro  se  prisoner was due special consideration in light  of  his
condition,  including  explaining the summary  judgment  rule  to

     19    14 P.3d 257, 259 (Alaska 2000) (A decision to grant or
deny  a motion to amend after the initial limitations period  has
passed under Alaska Civil Rule 15(a) is a matter within the broad
discretion  of  the  trial court and is  reviewed  for  abuse  of

     20    See Alderman v. Iditarod Properties, Inc., 32 P.3d 373,
395  (Alaska 2001) (holding that a trial court may deny amendment
of  a  complaint  when the amendment offered is  unduly  delayed,
offered in bad faith, or futile).

     21     Jourdan  also  makes this claim about  Stewart  Title
Company,  who  was  the  trustee for the disputed  property,  and
Pacific Northwest Title Company, whose role in the disposition of
Jourdans  house  is  never  clarified.   Her  entire  discussion,
however, focuses on Elder.

     22     Who  may  be joined as an indispensable  party  is  a
question  of  law  to  which we apply our  independent  judgment.
Silvers v. Silvers, 999 P.2d 786, 792 (Alaska 2000).

     23     By  extension, Judge Souters order dismissing Stewart
Title  Company, to the extent that it is challenged  at  all,  is
affirmed.   Pacific Northwest Title Company is  also  not  to  be
considered an indispensable party.

     24     Jourdan claims that she was being treated at the time
for  biological diagnosed depression, along with severe back pain
and complications from surgery.  She does not cite to anything in
the record suggesting that this necessitated the appointment of a
conservator.  Jourdans motion from November 21, 1996 to stay  all
matters until after she had the opportunity to undergo surgery in
Seattle  was  denied because she failed to show  that  additional
time  for  recovery was necessary other than the two months  that
the court had already granted.

     25    Jourdans brief asserts:

          The  Superior  Court committed  plain  error,
          prejudice and abuse of discretion by allowing
          appellant  to  represent herself  in  propria
          persona immediately prior to appellees filing
          the  petition  to proceed in  Probate  Court,
          because  the  judges  silence,  conduct   and
          negligence are evidence she erred by  failing
          to  recognize  Jourdans alleged incompetence.
          Such  incompetence made it incumbent on Judge
          Hunt,   [on  her  own  motion],  to  Petition
          Probate  Court for a Special Conservator  for
          Ava  Jourdan,  as  to Case  No.  94-1356  CI.
          Therefore, appellant moves the Supreme  Court
          to  reverse  Judge Hunt due to her prejudice,
          abuse of discretion and plain error.
     26     Jourdans  brief  states: Judge Hunt  committed  clear
reversible   err[or]  when  she  condoned  Appellees  petitioning
Probate  Court  for  a Special Conservator of  Appellant  Jourdan
without  first compelling Appellees to file a motion for  her  to
rule  on  as  to whether or not a Petition to Appoint  a  Special
Conservator for Appellant Jourdan was necessary.

     27    See Breck v. Moore, 910 P.2d 599, 609 (Alaska 1996).

     28     The rule states in part:  Whenever in a civil case an
appellant  entitled  thereto  desires  a  stay  on  appeal,   the
appellant  may present to the superior court for its  approval  a
supersedeas bond which shall have such surety or sureties as  the
court requires.

     29    Cameron v. Hughes, 825 P.2d 882, 885 (Alaska 1992).

     30    Anchorage Daily News v. Anchorage Sch. Dist., 803 P.2d
402, 404 (Alaska 1990).

     31    Id.

     32    Civil Rule 16.1 was repealed by statute effective July
15, 1997.  Alaska Supreme Court Order No. 1266 (July 15, 1997).

     33     See Alaska Trams Corp. v. Alaska Elec. Light & Power,
743 P.2d 350, 354 (Alaska 1987) (Once noncompliance is shown, the
burden  is upon the noncomplying party to prove that its  failure
to provide discovery was not willful.).

     34     Jourdan also seems to allege discovery abuse by Judge
Herbert A. Ross in United States Bankruptcy Court, but that issue
is beyond our jurisdiction.

     35     Jourdan also claims that Judge Hunt improperly denied
Jourdan  the  admission of newly discovered  evidence.   However,
Judge  Hunts  decision  makes it clear  that  this  evidence  was

     36    The statute provides:

               (a)  A judicial officer may not act in a
          matter in which
               (1)  the judicial officer is a party;

               (2)  the judicial officer is related  to
          a party or a partys attorney by consanguinity
          or affinity within the third degree;
               (3)  the judicial officer is a material witness;

               (4)   the judicial officer or the spouse
          of the judicial officer, individually or as a
          fiduciary, or a child of the judicial officer
          has   a  direct  financial  interest  in  the
               (5)   a  party, except the  state  or  a
          municipality  of the state, has  retained  or
          been professionally counseled by the judicial
          officer  as  its  attorney within  two  years
          preceding  the  assignment  of  the  judicial
          officer to the matter;
               (6)     the    judicial   officer    has
          represented  a  person as  attorney  for  the
          person against a party, except the state or a
          municipality of the state, in a matter within
          two  years  preceding the assignment  of  the
          judicial officer to the matter;
               (7)    an  attorney  for  a  party   has
          represented the judicial officer or a  person
          against the judicial officer, either  in  the
          judicial officers public or private capacity,
          in  a  matter within two years preceding  the
          filing of the action;
               (8)    the  law  firm  with  which   the
          judicial  officer  was  associated   in   the
          practice   of  law  within  the   two   years
          preceding the filing of the action  has  been
          retained   or  has  professionally  counseled
          either party with respect to the matter;
               (9)   the  judicial officer feels  that,
          for any reason, a fair and impartial decision
          cannot be given.
     37    Perotti v. State, 806 P.2d 325, 327 (Alaska App. 1991).

     38    Lacher v. Lacher, 993 P.2d 413, 421 n.21 (Alaska 1999);
Blake v. Gilbert, 702 P.2d 631, 642 (Alaska 1985).

     39    Id.

     40    Cf. R.J.M. v. State, 946 P.2d 855, 869-70 (Alaska 1997)
(This  court  will  not overturn a trial judges recusal  decision
unless it is plain that a fair-minded person could not rationally
come  to  that  conclusion  on the  basis  of  the  known  facts.
(quoting Amidon v. State, 604 P.2d 575, 577 (Alaska 1979))).

     41    Cf. Lacher, 993 P.2d at 420-21 (dismissing an argument
for  recusal  as  little more than an expression of  [appellants]
dissatisfaction with the superior courts ruling).

     42    It should be noted that the exact quotations alleged in
Jourdans  brief  do not appear in the transcript from  that  day,
though similar topics are addressed.

     43     Jourdan  does not present any evidence to  back  this
assertion.  Furthermore, Charles Elder has been deemed not to  be
an  indispensable party to this case, rendering  this  aspect  of
Jourdans argument moot.

     44    See AS 22.20.020(a).

     45     The  rule  states in pertinent part:   In  an  action
pending in the Superior or District Courts, each side is entitled
as a matter of right to a change of judge and of one master.

     46     See Lacher, 993 P.2d  at 421 (holding that the  trial
courts  decision  did  not  demonstrate  any  specific  bias   or
generalized pattern of bias  where the party did not complain  of
bias  until after the adverse ruling against her (quoting  Alaska
Trams Corp. v. Alaska Elec. Light & Power, 743 P.2d 350, 353  n.7
(Alaska 1987))).

     47    See AS 22.20.020(c).

     48    Pride v. Harris, 882 P.2d 381, 385 (Alaska 1994).