CHRISTOPHER HARMON and REBEKAH HARMON, Plaintiffs and Appellees,
BARBARA A. FINK, an individual, and FREDERICK M. ADOLF, an individual; John Does 1 through 10, inclusive of any or all persons, known or unknown, claiming or who might claim any right, title estate, or interest in or lien or encumbrance upon the real property described in the Complaint adverse to Plaintiffs' ownership or any cloud upon Plaintiffs' title, whether such claim or possible claim be present or contingent, including the person or persons in possession if the Plaintiffs are not in possession, Defendants, BARBARA A. FINK, an individual, Defendant and Appellant.
Submitted on Briefs: November 14, 2018
District Court of the Twenty-First Judicial District, In and
For the County of Ravalli, Cause No. DV 16-266 Honorable
Jeffrey H. Langton, Presiding Judge.
Appellant: Barbara A. Fink, Self-Represented, Hamilton,
Appellees: Alex Beal, Law Offices of Alex Beal, PLLC,
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
Barbara A. Fink (Fink) appeals from an order of the
Twenty-First Judicial District Court, Ravalli County,
granting Christopher and Rebekah Harmon (the Harmons) summary
judgment. We affirm.
The facts of this case are undisputed. Fink owned a parcel of
land, Lot 24, in Hamilton, Montana, on which she lived in a
home with a well. In 2007, Fink subdivided Lot 24 into two
parcels-Tract 24A and Tract 24B. She recorded the
subdivision. Fink's residence and well were located on
Tract 24B; Tract 24A remained undeveloped with no water
source. Fink subsequently obtained a trust indenture on Tract
24B (Trust Indenture) by conveying a deed of trust to a bank,
which was recorded in June 2007.
A few years later, Fink obtained approval to re-aggregate the
two parcels. In September 2009, Fink recorded the
re-aggregation, recreating the original Lot 24. Fink then
subdivided Lot 24 again, creating two parcels-Tract 24-A-1
and Tract 24-B-1- with boundaries identical to the former
Tract 24A and Tract 24B. She recorded the subdivision in
April 2010. Fink's residence and well remained on Tract
24-B-1. A month later, in March 2010, Fink executed a
quit-claim deed transferring all of her interest in Tract
24-A-1-the undeveloped parcel-to her father, Frederick Adolf
(Adolf). Fink recorded the deed in April 2010.
Beginning in May 2010, Fink stopped paying the Trust
Indenture on Tract 24-B-1. Later that year, the successor
trustee of the Trust Indenture filed a notice of
trustee's sale, providing notice that Fink defaulted and
scheduling a trustee's sale of Tract 24-B-1 for February
10, 2011. Just before the scheduled trustee's sale, Fink
(the owner of Tract 24-B-1) and Adolf (the owner of Tract
24-A-1) executed an Easement Agreement. In the Easement
Agreement, Fink and Adolf agreed to modify Tract 24-B-1's
well system to provide water for both Tract 24-B-1 and Tract
24-A-1. Fink recorded the Easement Agreement on February 9,
2011, one day before the scheduled trustee's sale.
The trustee cancelled Tract 24-B-1's February 10, 2011
sale and thereafter rescheduled the sale multiple times while
Fink attempted to refinance the property. In the summer of
2011, Adolf constructed a small cabin on Tract 24-A-1 and,
pursuant to the Easement Agreement, connected the structure
to Tract 24-B-1's well. The successor trustee eventually
rescheduled the trustee's sale a fourth and final time,
setting it to occur on June 21, 2012. The successor trustee
notified Fink of the sale but did not notify Adolf. The
Federal National Mortgage Association (Fannie Mae) purchased
Tract 24-B-1 at the trustee's sale, foreclosing the Trust
Indenture. In December 2012, the Harmons purchased Tract
24-B-1 from Fannie Mae. In 2013, Adolf quit-claimed a 1%
interest in Tract 24-A-1 back to Fink, making Adolf a 99%
owner and Fink a 1% owner.
In July 2016, the Harmons filed a complaint against Fink and
Adolf in District Court, asking the court to declare the
Easement Agreement unenforceable. After Fink and Adolf
answered the Harmons' complaint, both sides filed motions
for summary judgment. The District Court ultimately granted
the Harmons' motion for summary judgment, finding that
the June 21, 2012 trustee's sale of Tract 24-B-1
extinguished the Easement Agreement because the Easement
Agreement, a junior easement, was subject to extinguishment
through foreclosure of the Trust Indenture, a senior
mortgage. See § 70-21-302, MCA; Terry L.
Bell Generations Trust v. Flathead Bank of Bigfork, 2013
MT 152, ¶ 12, 370 Mont. 342, 302 P.3d 390. Fink appeals,
contending the trustee did not provide adequate notice of the
trustee's sale, and accordingly, the sale could not have
extinguished the junior Easement Agreement.
We review a district court's grant of summary judgment de
novo, applying the same standard as the district court.
Knucklehead Land Co. v. Accutitle, Inc., 2007 MT
301, ¶ 10, 340 Mont. 62, 172 P.3d 116. The court should
grant summary judgment when there is no genuine issue as to
any material fact and the moving party is entitled to
judgment as a matter of law. M. R. Civ. P. 56(c)(3).
The Legislature enacted the Small Tract Financing Act of
Montana, §§ 71-1-301 to -321, MCA (the Act), to
ease financing restrictions on small tracts of real property.
Section 71-1-302, MCA. The Act struck a compromise between
lenders (trustees) and borrowers (grantors) whereby the
grantors gave up their rights to possession and redemption
while the trustees gave up their right to deficiency judgment
upon default. Knucklehead, ¶ 13 (citing
First State Bank of Forsyth v. Chunkapura, 226 Mont.
54, 57, 734 P.2d 1203, 1205 (1987)). ...