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Capital One, NA v. Guthrie

Supreme Court of Montana

April 4, 2017

CAPITAL ONE, NA as successor by Merger to Chevy Chase Bank. F.S.B., Plaintiff and Appellee,
v.
MARTHA M. GUTHRIE; RICHARD A. GUTHRIE; RICHARD A. GUTHRIE, as Custodian for Taylor M. Guthrie, Defendants and Appellants.

          Submitted on Briefs: January 25, 2017

         APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DV-10-597(A) Honorable Amy Eddy, Presiding Judge

          For Appellants: Harold V. Dye, Dye & Moe, P.L.L.P., Missoula, Montana.

          For Appellee: Rik S. Tozzi, Burr & Forman LLP, Birmingham, Alabama Joe A. Solseng, Robinson Tait, P.S., Seattle, Washington.

          OPINION

          Mike McGrath Chief Justice.

         ¶1 Martha M. Guthrie, Richard A. Guthrie, and Richard A. Guthrie, as custodian for Taylor M. Guthrie, (Guthrie) appeal from a December 17, 2015 District Court order granting summary judgment to the plaintiff. We affirm.

         ¶2 We restate the issues on appeal as follows:

Issue One: Did the retired District Court Judge have jurisdiction over the proceedings?
Issue Two: Did the District Court err in granting partial summary judgment to Capital One on the equitable estoppel claim?
Issue Three: Did the District Court properly rely on an affidavit when it granted Capital One's summary judgment motion?

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 In 2005, Guthrie took out a loan for the purchase of real property. The mortgage was subsequently assigned to Chevy Chase Bank (Chevy) by the lender. Guthrie and Chevy modified the loan twice. In 2008, Guthrie requested a third loan modification. Chevy agreed to release a portion of its security over some of the property, which Guthrie could then sell. Chevy's release was contingent on an appraisal of the remaining property. The property did not value as high as Chevy required. Chevy then suggested Guthrie pay down the mortgage in order to have a portion of the property released. Guthrie did not pay down the mortgage.[1] Chevy merged with Capital One (Capital) and Capital took over as successor to the mortgage.

         ¶4 In April 2010, Capital initiated a foreclosure action against Guthrie. Guthrie asserted the affirmative defense of equitable estoppel based on the discussed third mortgage modification with Chevy. For the next five years the parties filed various motions regarding the foreclosure action. The District Court denied Guthrie's equitable estoppel claim and denied Capital's summary judgment motions on the right to foreclose at that time.

         ¶5 In June 2015, Capital moved for summary judgment, again seeking the right to foreclose on the property. The motion was supported by exhibits A-J and the affidavits of Huy Pham (Pham), Cassie Dellwo, and Leslie Lane. In July 2015, Guthrie filed an objection and motion to strike the Pham affidavit and a brief in opposition to the summary judgment motion. Guthrie's argument in the motion to strike was that the Pham affidavit was not admissible; it was not based on Pham's personal knowledge, uncertified document copies were attached, and it failed to establish foundation for the ...


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