CAPITAL ONE, NA as successor by Merger to Chevy Chase Bank. F.S.B., Plaintiff and Appellee,
MARTHA M. GUTHRIE; RICHARD A. GUTHRIE; RICHARD A. GUTHRIE, as Custodian for Taylor M. Guthrie, Defendants and Appellants.
Submitted on Briefs: January 25, 2017
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
Appellants: Harold V. Dye, Dye & Moe, P.L.L.P., Missoula,
Appellee: Rik S. Tozzi, Burr & Forman LLP, Birmingham,
Alabama Joe A. Solseng, Robinson Tait, P.S., Seattle,
McGrath Chief Justice.
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.
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
Issue Three: Did the District Court properly rely on an
affidavit when it granted Capital One's summary judgment
AND PROCEDURAL BACKGROUND
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. Chevy merged with
Capital One (Capital) and Capital took over as successor to
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.
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