Submitted on Briefs: May 17, 2017
FROM: District Court of the Eighteenth Judicial District, In
and For the County of Gallatin, Cause No. DV-15-599A
Honorable Holly Brown, Presiding Judge
Appellants: Anthony R. Chapman and Christine Chapman,
Self-Represented, Manhattan, Montana.
Appellee: Charles E. Hansberry, Jenny M. Jourdonnais,
Hansberry & Jourdonnais, PLLC, Missoula, Montana.
MICHAEL E WHEAT, 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
In 2004, the Chapmans executed a Deed of Trust (Deed)
conveying their Manhattan, Montana, real property as security
for a GMAC mortgage loan. In September 2011, the Chapmans
stopped making payments on the loan but continued living on
the property. In September 2014, a non-judicial foreclosure
proceeding was initiated and a January 27, 2015 Trustee's
Sale was noticed. In January 2015, the Chapmans filed several
documents in the real property records, including a Notice to
Rescind (Notice). In this Notice, they claimed they were
rescinding their Deed based upon the failure of relevant
entities to comply with the disclosure requirements of the
Truth in Lending Act, 15 U.S.C. § 1601 et seq. As
scheduled, three weeks later, the property was sold in a
Trustee's Sale. A servicing corporation purchased the
property and three months later conveyed it to the Federal
National Mortgage Association (Fannie Mae or the
Association). Fannie Mae notified the Chapmans to vacate and
when they refused, initiated the underlying unlawful detainer
action against them in June 2015.
In July 2016, the Eighteenth Judicial District Court,
Gallatin County, ruled that the Chapmans' Notice to
Rescind was untimely and therefore ineffective. In August
2016, the court granted Fannie Mae's motion for summary
judgment, and ten days later, denied the Chapmans' M. R.
Civ. P. 60(b)(4) (Rule 60(b)) motion to vacate the judgment.
It is from these orders the Chapmans appeal.
As in all lower court proceedings, the Chapmans, who
represented themselves throughout the proceeding, including
this appeal, maintain that their Notice to Rescind was
effective and nullified the need for all subsequent
proceedings. While relying on the provisions of the Truth in
Lending Act that authorize a borrower to rescind a deed under
certain circumstances, 15 U.S.C. § 1635(a) and (b), they
fail to accept the application of 15 U.S.C. § 1635(f) to
their Notice. As noted by the District Court, 15 U.S.C.
§ 1635(f) states that a borrower's "right to
rescission shall expire three years after the date of
consummation of the transaction or upon the sale of the
property, whichever occurs first . . . ." The Chapmans
executed the Deed in May 2004. Under the applicable statute,
their right to file a Notice to Rescind existed until May
2007, at which time that right extinguished. The Chapmans did
not file their Notice to Rescind until January 2015.
The District Court did not err in concluding the
Chapmans' Notice to Rescind was untimely and ineffective.
The law is clear. Furthermore, the Chapmans' reliance on
Jesinoski v. Countrywide Home Loans, Inc., ___ U.S.
___, 135 S.Ct. 790 (2015) is misplaced. In that case, the
notice to rescind was filed within the statutorily-required
Moreover, the District Court correctly granted summary
judgment to Fannie Mae in the underlying unlawful detainer
action. Once the court declared rescission ineffective, there
was no dispute vis-à-vis Fannie Mae's right of
possession. The record reveals there were no genuine issues
of fact regarding the validity of the foreclosure proceeding
and the sale. It further reflects that Fannie Mae obtained
legal title to the property and complied with the applicable
statutes (Title 70, chapter 27, MCA) when requesting that the
Chapmans vacate the property. As the material facts were
undisputed and Fannie Mae was entitled to judgment as a
matter of law, we affirm the District Court's grant of
Fannie Mae's motion for summary judgment.
We further affirm the District Court's denial of the
Chapmans' Rule 60(b)(4) motion. The court correctly
determined that the Chapmans' motion was a rehashing of
their "rescission-is-effective" argument and that
"[s]uch repetitive arguments are insufficient on which
to grant relief under Rule 60(b), M. R. Civ. P." The
court's analysis and reasoning are sound and we will not
Lastly, we decline to address the Chapmans' challenge to
the District Court's subject matter jurisdiction as it is
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 District Court's findings of fact are not
clearly erroneous, its interpretation and ...