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Hsbc Bank Usa, National Association v. Nickerson

Supreme Court of Montana

August 22, 2017

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

         APPEAL 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

          For Appellants Nick Nickerson (Self-Represented), Donna Nickerson (Self-Represented), Wolf Creek, Montana

          For Appellee Kenneth K. Lay, Crowley Fleck PLLP, Helena, Montana



         ¶1 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 Montana Reports.

         ¶2 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 affirm.

         ¶3 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.

         ¶4 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 1, 2013.

         ¶5 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.

         ¶6 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.

         ¶7 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.

         ¶8 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.

         ¶9 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 ...

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