Submitted on Briefs: January 11, 2017
Court of the Twentieth Judicial District, In and For the
County of Lake, Cause No. DV-14-30 Honorable Deborah Kim
Christopher, Presiding Judge
Appellant: Michael Klinkhammer; Klinkhammer Law Office;
Kalispell, Montana For Appellee:
Rae Peterman; RCO Legal, P.S.; Missoula, Montana
Jeremiah Shea, Justice
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
Internal Operating Rules, this case is decided by memorandum
opinion and shall not be cited and does not serve as
precedent. Its case title, cause number, and disposition
shall be included in this Court's quarterly list of
noncitable cases published in the Pacific Reporter and
Arlan K. Wiggins appeals an order by the Twentieth Judicial
District Court, Lake County, granting summary judgment to
Amtrust REO I, LLC (Amtrust) on its eviction action against
Wiggins for refusing to vacate property Amtrust purchased at
a Trustee's Sale. We address whether the District Court
erred in granting summary judgment to Amtrust and whether
Wiggins waived his arguments not raised at the District
Court. We affirm.
On July 10, 2007, Wiggins received a loan from Fairway
Independent Mortgage Group (Fairway) for property currently
known as 28302 Cougar Trail, Bigfork, MT, 59911. Wiggins
later filed for bankruptcy, and on November 7, 2011, the U.S.
Bankruptcy Court for the District of Montana approved a
Stipulation and Agreement that allowed Residential Credit
Solutions, Inc. (RCS) to foreclose and liquidate the property
upon default. Wiggins failed to make payments as agreed, and
RCS instituted non-judicial foreclosure proceedings that
culminated in a Trustee's Sale of the property to RCS on
September 5, 2013. On September 9, 2013, the Trustee's
Deed was placed in the name of Amtrust. On February 10, 2014,
Amtrust filed two Complaints for Eviction (causes DV-14-30
and DV-14-31) against Wiggins pursuant to § 71-1-319,
MCA, allowing it to take possession of the property purchased
on the tenth day following the Trustee's Sale. After
consolidating causes DV-14-30 and DV-14-31, the District
Court granted Amtrust's Motion for Summary Judgment,
noting that Wiggins did not bring forth any genuine issues of
We review a district court's summary judgment order de
novo. Gordon v. Kuzara, 2012 MT 206, ¶ 13, 366
Mont. 243, 286 P.3d 895. Summary judgment is appropriate
where there is no genuine issue of material fact, and where
the movant is entitled to judgment as a matter of law. M. R.
Civ. P. 56(c)3; Bellanger v. American Music Co.,
2004 MT 392, ¶ 9, 325 Mont. 221, 104 P.3d 1075.
Wiggins argues that Amtrust improperly filed an Unknown
Defendant's Complaint in cause DV-14-30 and that Amtrust
improperly filed DV-14-31 as a separate complaint rather than
amending DV-14-30. Wiggins also argues that Amtrust failed to
serve the complaints on him, and that Amtrust's
complaints should have been filed as counterclaims in an
earlier proceeding. Amtrust contends that Wiggins'
arguments should not be considered because he raises them for
the first time on appeal. We agree.
It is well established that this Court will not review issues
presented for the first time on appeal. Paulson v.
Flathead Conservation Dist., 2004 MT 136, ¶ 37, 321
Mont. 364, 91 P.3d 569. We therefore decline to address
Wiggins' procedural arguments which he has raised for the
first time. Before the District Court, Wiggins essentially
attempted to relitigate issues raised in the foreclosure
action. We recently affirmed the District Court's grant
of summary judgment in that matter. Wiggins v.
Residential Credit Solutions, 2016 MT 312N, ¶ 2,
No. DA 16-0191, 2016 Mont. LEXIS 1001. As the District Court
correctly noted in the present case, Wiggins "fail[ed]
to bring forward any issues of fact that pertain to the
present case [that] have not already been decided by the
[District] Court." The District Court did not err in
granting summary judgment.
¶7 We have determined to decide this case pursuant to
Section I, Paragraph 3(c) of our Internal Operating Rules,
which provides for memorandum opinions. In the opinion of the
Court, the case presents a question controlled by settled law
or by the clear application of applicable standards of
review. The District Court's findings of fact were not
clearly erroneous and its interpretation and application of
the law was correct.
Concur: MIKE McGRATH, MICHAEL E WHEAT, LAURIE ...