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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Holta v. Certified Financial Services, Inc. (6/28/2002) sp-5588

Holta v. Certified Financial Services, Inc. (6/28/2002) sp-5588

     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,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA


G. OTTO HOLTA, and WILLIAM P. )
BREDESEN, JR., Trustee,       )    Supreme Court No. S-9074/9114
                              )
          Appellants and      )    Superior Court No.
          Cross-Appellees,         )    3AN-97-10138 CI
                              )
          v.                  )
                              )
CERTIFIED FINANCIAL SERVICES, )    O P I N I O N
INC., a Washington Corporation,    )
                              )    [No. 5588 - June 28, 2002]
          Appellee and        )
          Cross-Appellant.         )
                                                                )


          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Michael L. Wolverton, Judge.

          Appearances:  David  J. Schmid  and  Eric  R.
          Cossman,  Law  Offices of  David  J.  Schmid,
          Anchorage,   for  Appellants/Cross-Appellees.
          Michael W. Price and Sabrina E. L. Fernandez,
          Price & Price, Anchorage, for Appellee/Cross-
          Appellant.

          Before:  Matthews,  Chief Justice,  Eastaugh,
          Fabe, Bryner, and Carpeneti, Justices.

          BRYNER, Justice.


I.   INTRODUCTION

          The   superior  court  granted  summary   judgment   to

Certified  Financial Services, holding that the six-year  statute

of  limitations for contracts barred Otto Holtas 1997 nonjudicial

foreclosure action against Certified Financials property.   Holta

appeals,  contending  that his action is  not  time  barred.   We

reverse,  holding  that Holtas foreclosure action  was  not  time

barred  and  that his deed of trust had not been extinguished  by

earlier  municipal  tax  foreclosure  proceedings.   Because   we

reverse,  we need not consider Certified Financials cross-appeal,

which   seeks  an  increase  in  its  award  of  prevailing-party

attorneys fees.

II.  FACTS AND PROCEEDINGS

          The  facts  are complicated but essentially undisputed.

In  August  1987  Julia Cooper executed a note promising  to  pay

$560,610  to  four  beneficiaries: Northern  Commercial  Company,

Aubrey  Bennett,  Karen Lindeen, and Duplesse & Associates,  Inc.

The  note  was  secured  by  a recorded  deed  of  trust  against

Anchorage  property known as the Essex Square Subdivision,  which

consisted of sixty undeveloped lots.  Cooper planned to develop a

residential  subdivision at Essex Square; the  four  Cooper  Note

beneficiaries were subcontractors that Cooper had hired  to  work

on  the  subdivision or that Cooper owed money for past  work  on

other ventures.

          The  Cooper  Note  called for payment by  November  15,

1989:

          All sums owed by the undersigned must be paid
          on or before November 15, 1989.  If the total
          sum  is  not paid by November 15,  1989,  the
          entire principal sum shall at once become due
          and  payable at the option of the holders  of
          this Note.
          
The  note also provided that Cooper expressly agree[d] that  this

Note  or  any payment thereunder may be extended or renewed  from

time to time.

          In September 1987 Cooper sold twenty-seven of the sixty

Essex   Square   lots  to  another  party.    The   Cooper   Note

beneficiaries  executed a partial reconveyance to  Cooper,  which

released  the  twenty-seven newly sold lots, leaving thirty-three

lots subject to the August 27 Cooper Deed of Trust.

          Cooper   later  ran  into  serious  financial  problems

developing the Essex Square Subdivision and eventually filed  for

bankruptcy.   While the bankruptcy was pending, Coopers  husband,

Clevey   Cooper,  convinced  three  of  the  four   Cooper   Note

beneficiaries   all  but  Duplesse & Associates   to  reduce  the

amount owed on the Cooper Note.  In June 1989, approximately five

months before the note matured, the three beneficiaries signed an

Amendment to Deed of Trust and Deed of Trust Note, purporting  to

reduce Coopers total debt from $560,610 to $306,351.  Cooper  did

not sign or record the amendment.

          By  the  time  the  Cooper Note  reached  its  original

maturity  date in November 1989, the propertys market  value  had

fallen  below  the  notes $560,610 face value;  accordingly,  the

trustee  in  the  Cooper  bankruptcy  proceeding  abandoned   the

property to the Coopers.

          The  following year, Cooper sued Duplesse &  Associates

(the  beneficiary  that  had not signed  the  Cooper  Amendment),

seeking to clear the cloud on the property by canceling Duplesses

interest  under  the deed of trust.  The superior  court  entered

judgment  for Cooper and canceled Duplesses interest in  December

1990.

          At  about  the  same time, the Coopers determined  that

they  could  not afford to complete the Essex Square Subdivision.

They  quitclaimed  title to the thirty-three  remaining  lots  to

Coopers nephew, Michael Curry.  The deed expressly provided  that

Curry  assumed  all obligations under the Cooper Deed  of  Trust.

Curry  was  aware of the June 1989 note amendment, knew  that  it

extended  the original payment deadline, and understood that  the

reduced  amounts reflected in the amended note were  the  amounts

that he had assumed.  Curry recorded the quitclaim deed  but  not

the original or amended notes  on March 27, 1991.

          The  following year, the Municipality of Anchorage  and

the  Internal  Revenue Service initiated foreclosure  proceedings

against the Essex Square property because Curry had failed to pay

taxes.  The superior court issued a clerks deed transferring  the

property   to  the  municipality  on  November  17,  1993.    The

municipality then scheduled a public auction to sell the land  on

August 24, 1994.  Two days before the municipal auction, the  IRS

conducted  an  auction to sell Currys right to redeem  the  Essex

Square  properties  from  municipal  foreclosure.   At  the   IRS

auction,  Greencrest  Investments,  Inc.,  and  William   Markham

(collectively,  Greencrest) bought Currys rights  of  redemption.

The  following day Greencrest redeemed the properties  by  paying

Currys delinquent municipal taxes. The municipality canceled  its

tax  auction and quitclaimed the Essex Square lots to  Greencrest

on August 24.

          Greencrest  eventually  ran  into  its  own   financial

problems  and  failed to meet obligations to Certified  Financial

that Greencrest had separately secured by a deed of trust against

the  Essex  Square  lots.  On July 11, 1996, Certified  Financial

acquired title to Essex Square from Greencrest by statutory  deed

in lieu of foreclosure.

          Meanwhile,  Holta  had acquired  all  interest  in  the

original  Cooper Note from the Cooper Note beneficiaries.   Holta

bought  Northern  Commercials interest on  August  23,  1994  for

$2,000.  Bennett and Lindeen assigned their interests to Holta on

October  11,  1996, for an undisclosed percentage  of  any  money

Holta  might collect.  And as already stated, the superior  court

had   eliminated   the  interest  of  the  fourth   Cooper   Note

beneficiary, Duplesse.  These conveyances set the stage  for  the

present litigation.

          Holta  initiated  nonjudicial  foreclosure  proceedings

against  the  Essex  Square property by  recording  a  notice  of

default and sale in November 1997.  Certified Financial responded

by filing a superior court action to quiet title and enjoin Holta

from  foreclosing.  In a subsequent motion for  summary  judgment

Certified  Financial  asserted  that  the  six-year  statute   of

limitations  for  contracts barred Holtas action.   The  superior

court  granted Certified Financials motion for summary  judgment.

The  court ruled that the six-year statute of limitations for  an

action  to foreclose on the Cooper Deed of Trust started  running

on  November  15, 1989  when the underlying note  fell  due   and

therefore expired on November 15, 1995.  The court thus concluded

that  the  statute  of  limitations barred Holtas  November  1997

action.  The court entered final judgment against Holta, awarding

costs and attorneys fees to Certified Financial.

          Holta  appeals, challenging the summary judgment order;

Certified Financial cross-appeals, contesting the amount  of  the

award of attorneys fees.

III. DISCUSSION

     A.   Standard of Review

          This court reviews a grant of summary judgment de novo.1

We will affirm a grant of summary judgment if the evidence in the

record  presents no genuine issue of material fact and the moving

party is entitled to judgment as a matter of law.2

     B.   Analysis

          The  superior  court  ruled that a  deed  of  trust  is

subject to the same statute of limitations as the underlying note

and  that actions based on both instruments are governed  by  the

six-year  statute of limitations for contracts set out in  former

AS  09.10.050.3   Holta does not dispute that  a  six-year  limit

governs  both an action on the note and an action on the deed  of

trust;  but  he  does dispute the assumption that  this  six-year

limit  expires at the same time for each action.4  This  argument

requires  us  to consider how the six-year statute of limitations

affects the note and the deed of trust.

          1.   How the six-year statute of limitations applies to
               the deed
               
           Because the deed of trust failed to specify a maturity

date, Holta argues, the court should have applied AS 34.20.150(a)

to  determine  when  the six-year statute  of  limitations  began

running on the deed of trust.  This provision states:

               The  date  of maturity of an  instrument
          creating   a  lien  upon  real  property   is
          considered  to be 10 years from the  date  of
          the instrument, unless
          
               (1)   the  period of the  instrument  is
          disclosed by the terms of the instrument;  or
          
               (2)   another  instrument extending  the
          period   of   the  first  instrument   or   a
          memorandum of payment of the first instrument
          is recorded.
          
          But Certified Financial argues that the Cooper Deed  of

Trust  incorporated the terms of the Cooper Note, which  in  turn

specified that [a]ll sums owed by the undersigned must be paid on

or  before  November 15, 1989.  Certified Financial reasons  that

even  though  the  Cooper Note went unrecorded, because  the  two

documents  were  contemporaneously executed, the deed  should  be

deemed to satisfy AS 34.20.150(a)s requirement of disclosing  the

deeds  maturity date  as reflected in the note.  To support  this

argument,  Certified Financial emphasizes that when a  promissory

note and deed are executed simultaneously, they generally must be

read together as one document to ascertain the parties intent.5

          But  we  are  not  concerned here with determining  the

original  contracting parties intent.  Instead, we must determine

whether AS 34.20.150(a) allows its ten-year default maturity date

to  be overridden by a maturity date that can be found only in an

unrecorded  note that the deed merely incorporates by  reference.

This determination hinges on AS 34.20.150(a)s purpose  to provide

subsequent   purchasers  with  record  knowledge  and  reasonable

certainty  regarding the vitality of liens recorded  against  the

property.   Alaska Statute 34.20.150(a) attains this  purpose  by

establishing a ten-year default maturity date; the statute allows

no  exception  to  the default date unless a  different  date  is

expressly  stated  in either the recorded lien  itself6  or  some

          other recorded document that extends the lien.7  Given the

statutes  underlying  purpose,  we  conclude  that  its  ten-year

default  maturity date cannot be overridden by a  deed  of  trust

provision incorporating the terms of a contemporaneously executed

note unless the note itself is also recorded.

          Here,  the Cooper Deeds default maturity date is August

1997   ten  years  after Cooper recorded the deed.   Neither  the

unrecorded  note  nor  the later unrecorded  extension  amendment

override  this date.  Under AS 34.20.150(a), then,  the  six-year

statute of limitations to foreclose on the deed began to  run  on

the  August 1997 default maturity date and does not expire  until

August 2003.

          2.   How the six-year statute of limitations applies to
               the note
               
          The  facts  of  this  case require us  to  consider  an

additional  wrinkle:  in  Dworkin  v.  First  National  Bank   of

Fairbanks, we recognized that when the statute of limitations  on

a deed of trust exceeds the limit for an action on the underlying

note,  the  shorter period that applies to the note also  governs

the action on the deed; in such a case the foreclosure action  is

subject to the same period of limitations as the underlying debt.8

Here, even though AS 34.20.150(a) applies a default maturity date

that  extends the six-year statute of limitations for foreclosure

until  August  2003   sixteen  years after  the  deeds  execution

Dworkin  makes the statute of limitations on the note controlling

if it expires sooner and would preclude Holta from foreclosing on

the  deed if the six-year limit for an action on the Cooper  Note

had already expired when he commenced his foreclosure.

          As  indicated above, the original Cooper Note  required

payment  on  or  before  November  15,  1989.   If  the  six-year

statutory limit began running then, the time for filing an action

on  the  original note would expire on November  15,  1995   well

before  Holta actually brought his foreclosure action in November

1997.   But  in 1989 an amendment ostensibly extended  the  notes

original  due  date by nearly three years  until June  20,  1992;

          this would generate a corresponding extension of the deadline for

filing an action on the note and deed until June 20, 1998   after

Holta actually began foreclosure.  Assuming, then, that the  1989

amendment is valid, Dworkin would permit Holtas action.  It  thus

becomes crucial to determine when the six-year limit expired  for

an action on the Cooper Note.

          On this point Holta argues that the June 1989 amendment

extended the statute of limitations.  On June 20, 1989, while the

Cooper  bankruptcy  was  pending and several  months  before  the

Cooper  Note  fell  due,  Cooper  persuaded  three  of  the  four

beneficiaries to sign an Amendment to Deed of Trust and  Deed  of

Trust  Note  reducing  the amount Cooper owed  on  the  note  and

extending the date for payment to June 20, 1992.  Holta maintains

that this amendment delayed the six-year limit for actions on the

note  from  expiring  until June 20, 1998  six  years  after  the

amended due date.

          Certified Financial counters that the 1989 amendment is

invalid  for several reasons.  It first argues that Cooper  never

signed  the  amendment.   But the original  note  authorized  its

holders  to extend the deadline for payment unilaterally;  hence,

the note did not require Coopers consent to an extension.  And in

any  event,  the  record establishes that Cooper  agreed  to  the

extension.   The  extension was negotiated  by  Coopers  husband,

Clevey,  who  undisputedly had authority to  act  as  her  agent.

Furthermore,   Michael  Curry,  Coopers  eventual   successor-in-

interest,  acknowledged the amendment and expressly  assumed  its

obligations.9   Certified  Financials  effort  to   portray   the

amendment as an inchoate agreement thus fails.

          Certified  Financial next argues  that  the  June  1989

amendment  to the original note was invalid because the automatic

stay  in  the Coopers bankruptcy prevented anyone but the trustee

from  amending the note.  Holta responds that Certified Financial

lacks standing to assert a violation of the bankruptcy stay, that

it  is  estopped from arguing this issue, and that the  amendment

          did not violate the stay in any event.

          The   bankruptcy  code  specifies  that  a   bankruptcy

petition  operates  as a stay on any act to create,  perfect,  or

enforce any lien against the property of the estate.10  Here, the

amendment does not appear to create, perfect, or enforce a  lien;

it  simply  extends a note secured by an otherwise valid  lien.11

Moreover,  the  bankruptcy  trustee  ultimately  abandoned  Essex

Square  to  the  Coopers.  Cooper then filed  an  action  against

Duplesse & Associates, the only holder of the original note  that

had not signed the amendment, which established that Duplesse had

no  further  interest  in the property.  And  when  Cooper  later

conveyed  her  interest in the property to Michael  Curry,  Curry

acknowledged the amendment and expressly assumed its obligations.

These  post-bankruptcy actions effectively ratified the amendment

and  cured  any  potential deficiency arising from its  execution

during the bankruptcy stay.

          We  must  next  consider whether  the  amendment  fails

because  it  was  not  recorded.  Certified Financial  identifies

statutory provisions requiring extensions to be recorded  in  two

situations:  under  AS  34.20.140, when  payment  is  made  on  a

contract  secured  by a real estate lien, the  payment  will  not

extend the lien unless a memorandum of payment is recorded;12 and

under  AS 34.20.150(a)(2), when an instrument such as a  deed  of

trust  creates  a lien without specifying its maturity  date,  an

instrument  extending  the  earlier instrument  will  operate  to

extend  the statutorily specified default maturity date  only  if

the later instrument is recorded.13

          Neither provision applies here.  The former statute has

no  bearing  because Holta seeks to enforce an extension  arising

from the original notes amendment, not its payment.  And both the

former  and  the latter are irrelevant because the only  lien  at

issue  here  is  the Cooper Deed of Trust;14 the  1989  amendment

extends  only the original note, not the deed, and  so  does  not

qualify  as  an  instrument extending  either  the  lien  or  the

          maturity date of an instrument creating a lien.  Because the

extension of the Cooper Note did not affect the deeds statutorily

specified  ten-year date of maturity under AS  34.20.150(a),  the

amendments validity did not hinge on its being recorded.

          The  amendment  thus extended the  notes  due  date  to

June  20, 1992; this in turn extended the expiration of the  six-

year  statute  of  limitations for any  action  on  the  note  to

June   20,   1998.   Because  Holtas  November  1997  notice   of

foreclosure  preceded this deadline, the statute  of  limitations

did not bar his action.

     C.   Tax Foreclosure

          The  superior courts decision to enter summary judgment

against  Holta for violating the statute of limitations  made  it

unnecessary  for  the  court  to  consider  Certified  Financials

alternative  summary  judgment argument.   Because  the  argument

presents  a  question of law and arises on undisputed  facts,  we

consider it here.15

          Certified Financial theorizes that the Municipality  of

Anchorages  1994  tax foreclosure action against Currys  property

extinguished the Cooper Deed of Trust and gave Currys  successor,

Greencrest, clear title to the Essex Square property.  To support

this theory, Certified Financial cites 26 U.S.C.  6339(c):

          (c)          Effect         of         junior
          encumbrances.certificate of sale of  personal
          property  given  or a deed to  real  property
          executed  pursuant  to  section  6338   shall
          discharge  such  property  from  all   liens,
          encumbrances, and titles over which the  lien
          of  the  United States with respect to  which
          the levy was made had priority.
          
Certified  Financial points out that, in keeping  with   6339(c),

the IRS issued a notice of sale in 1994 confirming that all liens

over  which the lien of the United States with respect  to  which

the levy was made had priority are discharged when a deed to real

property [is] executed pursuant to [26 U.S.C. ] 6338.

          But  Certified Financial reads too much  into  the  IRS

notice.   The  notice merely disclaims certain encumbrances  that

          are extinguished when an IRS tax sale results in the issuance of

a  deed under 26 U.S.C.  6338.  Yet here the IRS did not issue  a

deed to Essex Square under this statute.16  Instead, it only sold

Currys  right  to  redeem Essex Square from the  Municipality  of

Anchorage;  to  evidence  the sale  of  this  right,  Curry  gave

Greencrest  a  quitclaim deed.  Absent a  deed  executed  by  the

Secretary  of  the Treasury under  6338, then, the  IRS  sale  of

Currys right of redemption did not extinguish the Cooper Deed  of

Trust lien.  Certified Financial does not argue that the levy  of

the United States had priority over the Cooper Deed of Trust.  In

fact  the levy did not, since the Cooper Deed of Trust was senior

to  the  IRS  lien because it was recorded before  the  IRS  lien

against  Curry, and, most relevantly, before Curry  acquired  the

property.  Although the relevant statute, 26 U.S.C.  6323(a),  is

somewhat obscure on this point, the case law authoritatively  has

interpreted  this  subsection  to subordinate  the  tax  lien  to

perfected security interests arising before the filing of the tax

lien . . . .17

          Certified   Financial   further   argues    that    the

municipality obtained title to Essex Square, subject only to  the

IRS  tax  lien,  because AS 29.45.450(b)  provides  that  when  a

superior court issues a clerks deed in a tax foreclosure,  as  it

did  here,  the [c]onveyance gives the municipality clear  title,

except for prior recorded tax liens of the United States and  the

state.18  But Holta responds that this statute did not apply here

because  Greencrest  acted as Essex Squares  previous  owner  and

simply exercised Currys right of redemption.

          Holtas   response   has   merit.    In   Jefferson   v.

Metropolitan Mortgage & Securities Co. of Alaska, we acknowledged

the  general rule that when a municipality forecloses on property

for failure to pay taxes, it receives a new title to the property

free  from  all  encumbrances.  A buyer of the  property  at  the

subsequent  tax sale receives a new, independent  title  and  not

that  of the former owner.19  But we described an exception  that

          applies when the record owner buys back the property by paying

delinquent taxes:

          [I]n   Alaska,  even  after  [the]  time   of
          redemption  has  run, the  record  owner  may
          still  purchase the property  by  paying  the
          delinquent taxes, so long as the property has
          not  yet been sold to a third party at a  tax
          sale.  .  .  . . It is the general rule  that
          when   the   owner  of  record   redeems   or
          repurchases his property, his purchase merely
          operates  as  a payment of the taxes  and  he
          receives  the same title he held  before  the
          municipalitys foreclosure.[20]
          
          In  the  present case, after Greencrest  bought  Currys

right  of redemption from the IRS, the municipality canceled  its

scheduled  tax  auction and allowed Greencrest to  buy  back  the

property  without competition by paying Currys delinquent  taxes.

Because  Greencrest  stood  in  Currys  shoes  and  redeemed  the

property  as  his assignee, Jefferson instructs us  to  view  the

transaction  as  leaving Greencrest with the same  title  [Curry]

held before the municipalitys foreclosure.21

IV.  CONCLUSION

          Because  Holtas right to foreclose the Curry  Deed  was

not  barred  by the statute of limitations and because  the  lien

created  by that deed was not extinguished by the 1994  municipal

tax  foreclosure, we REVERSE the judgment and REMAND for  further

proceedings.22

_______________________________
     1    Davis v. Dykman, 938 P.2d 1002, 1006 (Alaska 1997).

     2    Id.

     3    Former AS 09.10.050 provided, in relevant part:

          Unless  the  action is commenced  within  six
          years, a person may not bring an action
          
          (1)  upon a contract or liability, express or
          implied,  excepting  those  mentioned  in  AS
          09.10.040[.]
          
     4     Holta  also  contends that the note  is  a  negotiable
instrument and as such is subject to the six-year time limit  set
out  in  Alaskas  Uniform Commercial Code, see  AS  45.03.118(a),
rather  than  the  six-year limit for contracts  set  out  in  AS
09.10.050.   He  theorizes  that a  more  lenient  maturity  date
applies to the note under the UCC provision. Our conclusion  that
Holta  prevails  under  the  six-year  contract  limit  makes  it
unnecessary to consider his negotiable instrument theory.

     5     See  Moening  v. Alaska Mut. Bank,  751  P.2d  5,  8-9
(Alaska 1988).

     6    See AS 34.20.150(a)(1).

     7    See AS 34.20.150(a)(2).

     8    444 P.2d 777, 782 (Alaska 1968).

     9     We  need  not consider whether the statute  of  frauds
applies  to the June 1989 note extension.  See AS 09.25.010;  but
see  Winters By and Through McMahon v. George Mason Bank, 94 F.3d
130, 135-36 (4th Cir. 1996).  Because the original note gave  its
holders unilateral power to extend the date for payment and  thus
made  Coopers  signature  unnecessary,  the  note  satisfied  the
statutes requirements if they applied.

     10    11 U.S.C.  362(a)(4).

     11    See In re Morton, 866 F.2d 561, 564 (2d Cir. 1989).

     12    AS 34.20.140 provides:

          Where the payment of an existing contract  (a
          bill  of exchange, promissory note, bond,  or
          other evidence of indebtedness) is secured by
          an  instrument  creating  a  lien  upon  real
          estate,  payment  on the  contract  does  not
          extend  the  lien  beyond  its  original   or
          extended   period   as   against   subsequent
          purchasers, optionees, mortgagees, creditors,
          or  persons  acquiring a lien upon  the  real
          estate, unless
          
               (1)   a  memorandum of  the  payment  is
          recorded  in  the  office  of  the  recording
          district where the property is located;
          
               (2)   the memorandum is recorded  before
          the end of the statutory time for bringing an
          action   upon   the  existing  contract   and
          extensions as exhibited by the terms  of  the
          recorded instrument;  and
          
               (3)    the  memorandum  is  signed   and
          acknowledged    by   the   owner    or    the
          representative of the owner of  the  existing
          contract of indebtedness.
          
     13    AS 34.20.150(a) provides, in relevant part:

          (a)   The  date of maturity of an  instrument
          creating   a  lien  upon  real  property   is
          considered  to be 10 years from the  date  of
          the instrument, unless
          
               (1)   the  period of the  instrument  is
          disclosed by the terms of the instrument;  or
          
               (2)   another  instrument extending  the
          period   of   the  first  instrument   or   a
          memorandum of payment of the first instrument
          is recorded.
          
See  Dworkin v. First Natl Bank of Fairbanks, 444 P.2d  777,  781
n.19   (Alaska   1968)  (holding  that  AS  34.20.150s   ten-year
presumptive  date of maturity does not apply when  an  instrument
explicitly sets forth a maturity date).

     14     See  Grant S. Nelson & Dale A. Whitman,  Real  Estate
Finance  Law  1.1, at 1 (4th ed. 2002) (distinguishing between  a
note  and  a  mortgage).  This court has used the terms  deed  of
trust   and  mortgage  interchangeably.   See,  e.g.,   K   &   L
Distributors, Inc. v. Kelly Elec., Inc., 908 P.2d 429, 432 &  n.5
(Alaska 1995); Brand v. First Fed. Sav. & Loan Assn of Fairbanks,
478  P.2d 829, 831-32 (Alaska 1970) (stating that a deed of trust
is a mortgage in effect  and only creates a lien).

     15     See Alaskans for a Common Language, Inc. v. Kritz,  3
P.3d  906, 912 (Alaska 2000) (intervention); Bennett v.  Hedglin,
995 P.2d 668, 671 (Alaska 2000) (insurance application).

     16    26 U.S.C.  6338 provides:

          (a)   Certificate of sale.--In  the  case  of
          property  sold  as provided in section  6335,
          the Secretary [of the Treasury] shall give to
          the  purchaser  a certificate  of  sale  upon
          payment in full of the purchase price. In the
          case of real property, such certificate shall
          set  forth  the real property purchased,  for
          whose  taxes the same was sold, the  name  of
          the purchaser, and the price paid therefor.
          
          (b)   Deed to real property.--In the case  of
          any real property sold as provided in section
          6335  and  not  redeemed in  the  manner  and
          within the time provided in section 6337, the
          Secretary  shall execute (in accordance  with
          the  laws  of  the State in which  such  real
          property  is situated pertaining to sales  of
          real   property  under  execution)   to   the
          purchaser of such real property at such sale,
          upon  his  surrender  of the  certificate  of
          sale,   a  deed  of  the  real  property   so
          purchased  by  him, reciting  the  facts  set
          forth in the certificate.
          
          (c)    Real  property  purchased  by   United
          States.--If   real   property   is   declared
          purchased  by  the United States  at  a  sale
          pursuant to section 6335, the Secretary shall
          at  the  proper time execute a deed therefor,
          and  without delay cause such deed to be duly
          recorded in the proper registry of deeds.
          
     17    Slodov v. United States, 436 U.S. 256, 257 (1978).

     18     See also AMC 12.15.070(D) (Properties transferred  to
the  municipality  by tax deed will be subject to  redemption  or
repurchase by an owner as provided by AS 29.45.).

     19    503 P.2d 1396, 1399 (Alaska 1972) (footnote omitted).

     20    Id.

     21    Id.

     22    Our decision to reverse the judgment on its merits also
requires  us  to vacate the superior courts award of  prevailing-
party  attorneys fees to Certified Financial.  We therefore  need
not  consider Certified Financials cross-appeal, which challenges
the award as insufficient.