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 Plaintiff's ownership or any cloud upon Plaintiff's title thereto, whether such claim or possible claim be present or contingent, Defendants and Appellants.
Submitted on Briefs June 28, 2017
FROM District Court of the First Judicial District, In and
For the County of Lewis And Clark, Cause No. ADV-2013-253
Honorable Mike Menahan, Presiding Judge
Appellants Nick Nickerson (Self-Represented), Donna Nickerson
(Self-Represented), Wolf Creek, Montana
Appellee Kenneth K. Lay, Crowley Fleck PLLP, Helena, Montana
MICHAEL E WHEAT JUDGE.
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
Nick Nickerson and Donna Nickerson (Nickersons) appeal from
the District Court's denial of their motion to amend the
January 22, 2015 District Court order granting HSBC's
cross motion for summary judgment, and their "deemed
denied" motion to alter or amend the judgment. We
On March 30, 2007, the Nickersons obtained a Note and
Mortgage from Wells Fargo Bank (Wells Fargo). Wells Fargo
assigned the Note and Mortgage to HSBC dated April 10, 2010.
Wells Fargo remained the servicer for Nickersons' loan.
The Nickersons have not made a mortgage payment since March
1, 2012, and claim that Wells Fargo has rejected their
attempts to do so. Wells Fargo sent the Nickersons notice
that their mortgage would be accelerated unless payment was
received immediately. HSBC initiated this action for
foreclosure on April 1, 2013. The Nickersons answered on May
On January 17, 2014, the Nickersons filed a motion for
summary judgment, with a brief in support and the affidavit
of Nick Nickerson. HSBC responded and filed a cross-motion
for summary judgment. The Nickersons filed a reply brief. In
March 2014, the Nickersons filed a motion to amend answer,
counterclaim and demand for jury trial, which the District
Court denied on September 25, 2014.
On December 8, 2014, the District Court heard oral argument
on the parties' cross-motions for summary judgment, and
on January 22, 2015, granted HSBC's motion. On February
19, 2015, the Nickersons filed a combined motion for new
trial and motion to alter or amend, with a supporting brief.
The District Court did not rule on the motion.
On May 26, 2015, the Nickersons filed this appeal. On
February 1, 2016, HSBC filed a motion in the District Court
for entry of final judgment on the foreclosure action. On
February 17, 2016, Nickerson filed a motion with the District
Court for a stay pending appeal under M. R. App. P. 22(1)(a).
On February 19, 2016, the District Court granted HSBC's
motion, entered judgment, and allowed foreclosure.
On May 3, 2016, pursuant to Nickersons' request for an
emergency stay, this Court issued an order remanding the case
to District Court and held the District Court's judgment
in abeyance. The order gave 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
mortgage payment plus fees to Wells Fargo, which Wells Fargo
wrongly rejected. This Court granted Nickersons' first
request for additional time for discovery and denied their
second request, deferring to the District Court on any
further extensions. The Nickersons worked to obtain
additional evidence and the District Court granted a subpoena
duces tecum for production of specific documents.
On February 2, 2017, the District Court entered an order
denying further extensions of time, granted HSBC's motion
to quash the Nickersons' subpoena, and reaffirmed its
January 22, 2015 ...