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HSBC Bank USA, National Association v. Nickerson

Supreme Court of Montana

April 25, 2017

HSBC BANK USA, NATIONAL ASSOCIATION, as trustee for WELLS FARGO ASSET SECURITIES CORPORATION, mortgage pass-through certificates series 2007-7, its successors in interest and/or assigns, Plaintiff and Appellee,
v.
NICK NICKERSON, DONNA NICKERSON, and all other persons unknown claiming or who might claim any right, title, estate, or interest in or lien or encumbrance upon the real and personal property described in the complaint for foreclosure adverse to Plaintiffs ownership or any cloud upon Plaintiffs title thereto, whether such claim or possible claim be present or contingent, Defendants and Appellants.

          ORDER

         This matter comes before the Court on the emergency motion of self-represented Appellants Nick and Donna Nickerson. On May 26, 2015, the Nickersons filed a notice of appeal of a First Judicial District Court Order granting summary judgment to Plaintiff HSBC Bank, USA, and denying the Nickersons' motion for summary judgment. After numerous extensions of time, the appeal was fully briefed and submitted to this Court. On May 3, 2016, we issued an Order giving the Nickersons 120 days to present additional sworn and verified evidence to the District Court regarding their claim that they made a timely tender of full payment plus fees to Wells Fargo that Wells Fargo wrongly rejected. We remanded the matter to the District Court for the limited purpose of reviewing any further evidence presented by the Nickersons on this narrow question. HSBC Bank, USA v. Nick Nickerson et al., No. DA 15-0332, Or. (Mont. May, 3, 2016). Our May 3 Order further provided:

The District Court's judgment shall be held in abeyance, pending remand as herein set forth. The stay of execution to which the bank agreed in the District Court shall remain in full force and effect while this matter is on remand.

         We directed the District Court to review the Nickersons' tendered evidence, to determine whether an additional hearing was needed, and to either amend or reaffirm its order on the Bank's cross-motion for summary judgment.

         This Court granted the Nickersons' first request for additional time for discovery and presentation of evidence and denied their second request, deferring to the District Court on any further extensions. On February 2, 2017, the District Court entered an order denying further extension of time for the Nickersons to complete discovery, granting the Bank's motion to quash the Nickersons' October 21, 2016 subpoena duces tecum, and reaffirming its January 22, 2015 order on the parties' cross-motions for summary judgment. The Bank immediately proceeded with setting a Sheriffs sale, the District Court issued a writ of execution, and the sale is now set for May 3, 2017. The Nickersons state that they received notice of the sale on April 5. They filed their emergency motion to enforce this Court's remand order.

         In response, the Bank points out that while the Nickersons filed a motion with the District Court on February 17, 2016, for a stay pending appeal under M. R. App. P. 22(1)(a), the District Court never ruled on that motion. The Bank contends that Nickersons' motion is deemed denied pursuant to M. R. Civ P. 59(g). The Bank argues that the Sheriffs sale is in order because the District Court reaffirmed its previous order in the Bank's favor and has not issued a stay.

         "Since 1954 it has been an established rule in Montana that when a notice of appeal has been filed, jurisdiction over the parties to the controversy and subject matter passes from the District Court and vests in the Supreme Court. It becomes the Supreme Court's duty to maintain the status quo of the parties until the controversy can be determined." Julian v. Buckley, 191 Mont. 487, 490-91, 625 P.2d 526, 528 (1981) (citing Benolken v. Miracle, 128 Mont. 262, 273 P.2d 667 (1954)). See also ABC Collectors, Inc. v. Birnel, 2006 MT 148, ¶ 9, 332 Mont. 410, 138 P.3d 802. The Nickersons' appeal remains pending before this Court. Once the notice of appeal was filed, "the District Court was without authority and jurisdiction to make or enter any further order except in matters embraced in the action and not affected by the order appealed from." Julian, 191 Mont, at 491, 625 P.2d at 528.

         Our May 3, 2016 Order remanded the case for a limited purpose. This Court expressly held the District Court's judgment in abeyance, and the appeal is still pending. Consequently, the District Court lacked jurisdiction to issue a writ of execution.

         IT IS THEREFORE ORDERED that:

         1. The writ of execution issued by the Lewis and Clark County District Court on February 3, 2017, is RESCINDED, and the May 3, 2017 Sheriffs Sale of the property, known as 4610 Montana Highway 200, Wolf Creek, Montana, 59648, is CANCELLED;

         2. The District Court record in Cause No. ADV-2013-253 shall be transmitted to this Court in compliance with the Montana Rules of Appellate Procedure; and

         3. This Court will consider and determine the Nickersons' appeal in due course. The matter will be deemed submitted on the briefs and materials now before the Court unless the Court determines that additional briefing is desired. The parties will not file any other briefs unless the Court directs them to do so.

         The Clerk is directed to provide a copy of this Order to the Honorable Mike Menahan, Lewis and Clark County District Court; to Angie Sparks, Clerk of District Court, Lewis and Clark County; to Sheriff Leo Dutton, Lewis and Clark County Sheriffs Office; to counsel of record; and to Nick Nickerson and Donna Nickerson.

          Justice Jim Rice has recused himself from further proceedings in this appeal and took no part in ...


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