Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Anderson v. Recontrust Company, N.A.

Supreme Court of Montana

December 19, 2017

KENNETH ANDERSON and BOBBIE ANDERSON, Plaintiffs and Appellants,
v.
RECONTRUST COMPANY, N.A. BAC HOME LOANS SERVICING, LP f/k/a COUNTRYWIDE HOME LOANS SERVICING, LP, FEDERAL NATIONAL MORTGAGE ASSOCIATION and JOHN DOE CORPORATIONS/LLCS/PARTNERSHIPS/ BUSINESS TRUSTS/ANY OTHER TYPE ORGANIZATION OR BUSINESS ENTITY NOS. I-V, Defendants and Appellees.

          Submitted on Briefs: July 26, 2017

         APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DV 11-1299D Honorable David M. Ortley, Presiding Judge

          For Appellants: Paul A. Sandry, Johnson, Berg, & Saxby, PLLP; Kalispell, Montana.

          For Appellees: Mark D. Etchart, Browning, Kaleczyc, Berry & Hoven, P.C.; Helena, Montana.

          OPINION

          Dirk Sandefur Justice.

         ¶1 Kenneth and Bobbie Anderson (Andersons) appeal the judgment of the Montana Eleventh Judicial District Court, Flathead County, dismissing their asserted negligence, negligent misrepresentation, fraud, and Montana Consumer Protection Act[1] (MCPA) claims against Bank of America, N.A. (Bank of America) and ReconTrust Company N.A. (ReconTrust) pursuant to M. R. Civ. P. 12(b)(6). We restate and address the following issues on appeal:

         1. Did the District Court erroneously dismiss Andersons' negligence, negligent misrepresentation, fraud, and MCPA claims pursuant to M. R. Civ. P. 12(b)(6)?

         2. Did the District Court err by not sua sponte converting ReconTrust's Rule 12(b)(6) motion to dismiss into a motion for summary judgment pursuant to M R. Civ. P. 12(d) upon the filing of an affidavit in support of Andersons' brief in opposition?

         ¶2 We affirm.

         PROCEDURAL AND FACTUAL BACKGROUND

         ¶3 On March 23, 2007, Andersons took out a loan from Mountain West Bank for the purchase of a home in Kalispell, Montana, secured by a residential trust indenture. As of July 2010, Mortgage Electronic Registration Systems, Inc. (MERS) owned the beneficial interest in the loan and mortgage. ReconTrust was the trustee under the trust indenture. In September 2011, after experiencing financial difficulty and defaulting on their mortgage, Andersons contacted Bank of America to inquire about a loan modification. At that time, a trustee's foreclosure sale of Andersons' property was previously scheduled for October 3, 2011. Later in September 2011, following a series of telephone calls and exchanges of information, Bank of America informed Andersons that they preliminarily qualified for a loan modification under the Home Affordable Modification Program (HAMP).

         ¶4 HAMP is a federal program introduced in 2009 in response to the subprime mortgage crisis. The program assists qualified homeowners to avoid mortgage foreclosure by modifying monthly loan payments to affordable levels. To qualify for a HAMP loan modification, homeowners must satisfy various threshold eligibility requirements and then make lower mortgage payments on a trial basis for three consecutive months. Upon successful completion of the trial period, the modification becomes permanent.

         ¶5 Andersons assert on appeal that, despite repeated assurances from Bank of America in September 2011 that they qualified for a HAMP loan modification and that the conditional approval would preempt the scheduled foreclosure sale, the bank ultimately denied the requested loan modification. In the absence of a loan modification, the trustee's foreclosure sale proceeded as previously scheduled, at which the trustee sold the property to the Federal National Mortgage Association (FNMA a/k/a Fannie Mae). Andersons then sued Bank of America, ReconTrust, and FNMA based on alleged violations of the Montana Small Tract Financing Act, breach of contract, HAMP-related violations, negligence, fraud, negligent misrepresentation, and unfair or deceptive practices in violation of the Montana Consumer Protection Act.

         ¶6 On April 16, 2012, Bank of America and ReconTrust filed a motion to dismiss pursuant to M. R. Civ. P. 12(b)(6) on the asserted ground that Andersons' First Amended Complaint stated insufficient facts to entitle them to relief on their asserted claims. Andersons filed a brief in opposition to the motion with a supplemental affidavit setting forth additional facts in support of their claims. Andersons did not move for conversion of the motion to dismiss into a motion for summary judgment pursuant to M. R. Civ. P. 12(d). The District Court ultimately dismissed all of Andersons' claims pursuant to M. R. Civ. P. 12(b)(6) without consideration of the facts set forth in ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.