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,
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.
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.
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.
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
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.
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.
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
THEREFORE ORDERED that:
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;
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
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.
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 ...