United States District Court, D. Montana, Missoula Division
WELLS FARGO BANK, N.A. AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF THE ASSET BACKED SECURITIES CORPORATION HOME EQUITY LOAN TRUST, ASSET BACKED PASS-THROUGH CERTIFICATES, SERIES WMC 2005-HE5, Plaintiff,
RICK J. BOWLER, Defendant.
L. Christensen, United States District Court Chief Judge.
the Court is Plaintiffs Motion for Summary Judgment (Doc.
20). Plaintiff, Wells Fargo Bank, N.A., as Trustee for the
Certificateholders of the Asset Backed Securities Corporation
Home Equity Loan Trust, Asset Backed Pass-Through
Certificates, Series WMC 2005-HE5 ("Wells Fargo"),
seeks judgment on a Promissory Note signed by Defendant Rick
J. Bowler and a decree of foreclosure on the Deed of Trust
intended to secure the promissory note. For the following
reasons, Wells Fargo's Motion will be granted.
following facts are undisputed. On March 10, 2005, Bowler
executed both a Promissory Note ("the Note") in the
original principal amount of $260, 000.00 and a Deed of Trust
securing Bowler's obligations under the Note. (Docs. 9-1
at 5; 9-2 at 1-2, 17; 22 at 2.) The Deed of Trust describes
the following as security for the Note:
Parcel I: Lot 4 of Clark Fork Meadows, a platted subdivision
in Missoula County, Montana according to the official record
Parcel II: TOGETHER WITH an access easement for the purposes
of ingress and egress to said Lot 4 over and across a private
easement along the Northerly boundaries of Lot 1 and Lot 3 of
said Clark Fork Meadows from the County Road.
(Docs. 9-2 at 3, 18; 22 at 3.)
Fargo is both the trustee for the trust holding the Note and
the assignee of the Deed of Trust. (Docs. 21 at 2; 22 at 2.)
the terms of the Note, Wells Fargo, as trustee, is entitled
to demand the entire balance owing under the Note upon
Bowler's default. (Docs. 9-1 at 2.) Additionally,
Bowler's default on the Note constitutes a default under
the terms of the Deed of Trust. (Docs. 9-2 at 1-5; 22 at 5.)
The Note provides that Bowler is liable for Wells Fargo's
reasonable attorneys' fees, costs, and expenses incurred
in enforcing its rights under the Note. (Doc. 9-1 at 3.)
has failed to make payments in accordance with the conditions
of the Note and received notice of default in December of
2017. (Docs. 9-5 at 1-2; 22 at 4.) Based on these undisputed
facts, Wells Fargo is seeking $251, 694.54 in principal, in
excess of $196, 260.10 in interest, $60, 929.88 in escrow
fees, and $1, 985.77 in advance fees. (Doc. 22 at 4.)
Fargo is entitled to summary judgment if it can demonstrate
"that there is no genuine issue as to any material fact
and [it] is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). Material facts are those which may affect
the outcome of the case. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute as to a
material fact is genuine if there is sufficient evidence for
a reasonable fact-finder to return a verdict for the
nonmoving party. Id. If the moving party meets its
initial responsibility, the burden then shifts to the
opposing party to establish that a genuine issue of fact
exists. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986).
this Court is exercising diversity jurisdiction, the
substantive law of Montana applies. Stanford Ranch, Inc.
v. Maryland Cas. Co.,89 F.3d 618, 624 (9th Cir. 1996).
However, neither party has provided the Court with the
substantive law governing this case. Instead, Wells Fargo
conclusively asserts that it is entitled to judgment on the
Note and a decree of foreclosure on the Deed of Trust
"as a matter of law" without providing any law.
(Doc. 21 at 7-8.) And, for his part, Bowler simply concedes
that Wells Fargo has "dutifully recited the undisputed
facts that are relevant to obtaining an order of judicial
foreclosure" but asserts that there are reasons the
Court should refrain from entering summary judgment at this
time. (Doc. 26 at ...