Opinion
No. 1 CA-CV 14-0858
02-16-2016
GOLDWATER BANK, N.A., Plaintiff/Appellee, v. DANIEL HILL, Successor Trustee of the Murphy Family Irrevocable Trust, and its beneficiaries, MEAGAN A. MURPHY and SEAN P. MURPHY, Intervener Defendants/Appellants.
COUNSEL Snell & Wilmer, L.L.P., Phoenix By Richard H. Herold, Andrew V. Hardenbrook, Robert I. Schwimmer, Emily Gildar Wagner Co-Counsel for Plaintiff/Appellee Fidelity National Law Group, Phoenix By David LaSpaluto Co-Counsel for Plaintiff/Appellee Francis J. Slavin, P.C., Phoenix By Francis J. Slavin, Ellen B. Davis Counsel for Intervenor Defendants/Appellants
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CV2012-004664
The Honorable Mark H. Brain, Judge
REVERSED AND REMANDED WITH INSTRUCTIONS
COUNSEL Snell & Wilmer, L.L.P., Phoenix
By Richard H. Herold, Andrew V. Hardenbrook, Robert I. Schwimmer,
Emily Gildar Wagner
Co-Counsel for Plaintiff/Appellee Fidelity National Law Group, Phoenix
By David LaSpaluto
Co-Counsel for Plaintiff/Appellee Francis J. Slavin, P.C., Phoenix
By Francis J. Slavin, Ellen B. Davis
Counsel for Intervenor Defendants/Appellants
MEMORANDUM DECISION
Judge Patricia K. Norris delivered the decision of the Court, in which Presiding Judge Jon W. Thompson and Judge Maurice Portley joined. NORRIS, Judge:
¶1 This appeal arises out of efforts by Goldwater Bank to, first, judicially foreclose Arizona property, second, non-judicially foreclose Idaho property, and third, obtain a judgment on a note secured by both properties. As we discuss, because Goldwater Bank failed to meet its burden of proof entitling it to summary judgment on two narrow issues, we reverse the superior court's judgment and remand on these two issues with instructions.
FACTS AND PROCEDURAL BACKGROUND
¶2 Trustors Patrick and Barbara Murphy ("the Murphys") created the Murphy Family Irrevocable Trust on November 1, 1992, naming their children as beneficiaries, and Barbara Murphy and Anne L. Hill as trustees. On November 25, 1992, the Murphys executed a warranty deed transferring real property located in Maricopa County ("the Arizona Property") to the Trust. The Murphys subsequently attempted to substitute Patrick Murphy as trustee for Anne Hill.
¶3 In 2006, the Murphys, purporting to act as "trustees" for the Trust, obtained a $750,000 loan (later increased to $1,000,000) from Compass Bank, secured by a deed of trust on the Arizona Property. Compass Bank also made a loan to a company owned by the Murphys, Shadow Ridge Investments, LLC, secured by a deed of trust on vacant land the company owned in Idaho ("the Idaho Property").
¶4 After the Trust and Shadow Ridge defaulted on the Compass Bank loans, the Murphys began to discuss refinancing the Compass Bank loans with Goldwater Bank. Eventually, the Murphys gave Goldwater Bank a trust certificate dated May 20, 2008, in which they certified they were: (1) the trustees; (2) "authorized and empowered on behalf of [the] Trust" to borrow money, execute notes, grant security in property of the Trust, and execute security documents; and (3) "duly authorized to act on behalf of [the] Trust." The Murphys also gave Goldwater Bank a copy of the Trust, which authorized the trustees to "borrow money and to mortgage or pledge any property of the Trust," and provided that "in no case shall" any person dealing with the trustees "be obligated to inquire into the authority of the [t]rustees or be obligated to see to the application of any money or property delivered" to the trustees.
¶5 On May 20, 2008, Goldwater Bank loaned the Trust $2,460,000 ("the Loan"), as evidenced by a promissory note executed by the Trust in favor of the Bank ("the Note"). The Loan was secured by, among other things, the Arizona Property pursuant to a deed of trust executed by the Trust, as trustor, in favor of Goldwater Bank, and the Idaho Property pursuant to a deed of trust executed by Shadow Ridge, as grantor, in favor of Goldwater Bank. The Murphys and Shadow Ridge also personally guaranteed the Loan (collectively "the Guarantors").
¶6 On March 2, 2012, after the Trust defaulted on the Loan, Goldwater Bank sued the Trust and the Guarantors (collectively "Defendants"). Goldwater Bank asserted three claims: Count I for breach of the Note; Count II for breach of the guarantees; and Count III for judicial foreclosure of the Arizona Property. Goldwater Bank also sought to non-judicially foreclose the Idaho Property. The Idaho Property's deed of trust contained a choice of law provision, specifying that Idaho law governed the foreclosure procedure, while Arizona law governed in other respects.
¶7 After counsel for Defendants withdrew, the Murphys represented themselves and attempted to represent the Trust. On March 12, 2013, Goldwater Bank purchased the Idaho Property with a "credit bid" of $256,410. On March 27, 2013, the superior court granted Goldwater Bank's motion for summary judgment on Counts I and II because it was "unopposed and appear[ed] well-founded." The superior court subsequently allowed successor trustee, Daniel W. Hill, on behalf of the Trust, and the children beneficiaries (collectively "Intervenors"), acting on their own behalf, jointly represented by new counsel, to intervene. After the parties had, as noted by the superior court, "made an absolute mess of the papers," the superior court decided to reconsider its ruling on Count I. But, as discussed in more detail below, the superior court again granted Goldwater Bank summary judgment on Count I. The superior court also granted Goldwater Bank summary judgment on Count III. And, as relevant here, on June 25, 2014, after the superior court had granted summary judgment in favor of Goldwater Bank on Counts I and III, it entered judgment against the Trust in the amount of $3,110,878.42, comprised of: (i) $2,194,377.63 in principal; (ii) $136,069.08 in late charges; and (iii) $780,431.71 in accrued interest through April 16, 2014. The judgment also foreclosed the deed of trust lien on the Arizona Property and authorized the Sheriff of Maricopa County to sell the Arizona Property at a Sheriff's sale.
The superior court entered judgment on Count II against the Guarantors on February 18, 2014. The Murphys attempted to appeal the judgment on Count II, but this court deemed their appeal abandoned after they failed to pay their filing fee. The Guarantors are not parties to this appeal.
Daniel Hill became successor trustee on March 1, 2013.
DISCUSSION
I. Genuine Dispute of Material Fact Regarding the Amount Owed
A. Goldwater Bank's Failure to Present Admissible Evidence of the Amount Owed
¶8 On appeal, Intervenors argue the superior court should not have granted summary judgment to Goldwater Bank on Counts I and III because a genuine dispute of material fact existed regarding the amount owed on the Note—that is, the unpaid principal balance, late charges, and accrued interest. Viewing the facts in the light most favorable to Intervenors, as the non-moving party, and determining de novo whether entry of summary judgment was proper, we agree. See Ponce v. Parker Fire Dist., 234 Ariz. 380, 382-83, ¶ 9, 322 P.3d 197, 199-200 (App. 2014).
¶9 Arizona Rule of Civil Procedure 56 directs a court to grant summary judgment "if the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Ariz. R. Civ. P. 56(a). Accordingly, to obtain a judgment under Rule 56(a), "the moving party must come forward with evidence it believes demonstrates the absence of a genuine issue of material fact and must explain why summary judgment should be entered in its favor." Nat. Bank of Ariz. v. Thruston, 218 Ariz. 112, 115, ¶ 14, 180 P.3d 977, 980 (App. 2008). As the moving party, Goldwater Bank bore the burden of coming forward with admissible evidence demonstrating the absence of a genuine dispute as to any material fact and explaining why it was entitled to summary judgment as a matter of law. See Comerica Bank v. Mahmoodi, 224 Ariz. 289, 293, ¶ 20, 229 P.3d 1031, 1035 (App. 2010) ("a plaintiff may only obtain summary judgment if it submits undisputed admissible evidence that would compel any reasonable juror to find in its favor on every element of its claim").
Although our supreme court amended Rule 56 after Thruston, the "changes are stylistic and are not intended to alter the substantive requirements for obtaining summary judgment as developed in Arizona case law." See Ariz. R. Civ. P. 56(a) comment to 2013 amendments to rule 56.
¶10 Goldwater Bank initially moved for summary judgment on Counts I and II in January 2013, and on Count III the following month. Goldwater Bank supported its initial motions with admissible evidence with a declaration from a Goldwater Bank vice president showing both the amount owed as of January 18, 2013 (including interest as of that date), and how it calculated the amount. The superior court granted Goldwater Bank's summary judgment motion on Counts I and II because it was unopposed and appeared well-founded. Before the superior court could rule on the Count III motion, however, Intervenors entered the case, and subsequently opposed summary judgment on Counts I and III, and also asked the superior court to reconsider its ruling on Count I. In opposing summary judgment, Intervenors argued, inter alia, that a dispute existed regarding the amount owed because Goldwater Bank had not deducted from the amount owed the amount of its credit bid for the Idaho Property. They also argued Goldwater Bank was not entitled to enforce the Note and foreclose the Arizona Property's deed of trust because it had not made the Loan in good faith. That is, according to Intervenors, Goldwater Bank "knew, or should have known," the Trust prohibited the Loan because the trustees were using the funds for non-trust purposes.
¶11 On April 1, 2014, the superior court granted Intervenors' motion for reconsideration. Addressing the merits of Goldwater Bank's summary judgment motions on Counts I and III and Intervenors' opposition to those motions, the superior court granted summary judgment to Goldwater Bank on Counts I and III. Before the superior court granted the summary judgment motions, however, Intervenors moved to amend their answer to add counterclaims. In their motion to amend, Intervenors raised essentially the same arguments they had made in opposing summary judgment on Counts I and III: that Goldwater Bank knew the Murphys, as trustees at the time of the initial Loan discussions, intended to and did use the proceeds from the Loan to and secured by Trust property for non-trust purposes.
¶12 On April 23, 2014, Goldwater Bank lodged a proposed form of judgment on Counts I and III. Later that month, Intervenors simultaneously filed a reply in support of their motion to amend and objected to the proposed form of judgment and collectively argued, inter alia, that Goldwater Bank had failed to provide an adequate calculation of the amount then owed under the note, and further, had failed to present any admissible evidence regarding certain components of the amount owed ("judgment objections"), as discussed below. On June 25, 2014, the superior court entered the judgment lodged by Goldwater Bank and denied Intervenors' motion to amend and their objections to the form of judgment.
¶13 The superior court should not have granted summary judgment on Counts I and III because Goldwater Bank failed to present admissible evidence reflecting the amount owed. Although Goldwater Bank presented admissible evidence regarding the amount owed and how it calculated it in January 2013, that evidence was outdated by the time the superior court actually considered Intervenors' judgment objections. Specifically, on January 31, 2013, Goldwater Bank asserted the unpaid principal balance of the Note as of January 18, 2013, totaled $2,412,325.45. Yet, on April 23, 2014, in its proposed form of judgment on Counts I and III, Goldwater Bank represented the unpaid principal balance was $2,194,377.63. As Intervenors correctly pointed out in their judgment objections, although Goldwater Bank had previously attempted to explain how it had determined the amount owed— in its response to a motion for new trial filed by the Murphys (which the superior court denied)—it had not provided any admissible evidence in that response that it had, in fact, actually deducted its credit bid from the amount owed or paid insurance on the Arizona Property and taxes on the Idaho Property. Intervenors further correctly asserted:
In its response to the Murphys' new trial motion, Goldwater Bank asserted the amount of the unpaid principal balance on the Note was $2,182,377.63. When it lodged its proposed form of judgment on Counts I and III, it represented the unpaid principal balance was $2,194,377.63—a $12,000 increase. Although in its answering brief on appeal, Goldwater Bank asserts this increase was attributable to an additional insurance payment for the Arizona Property and the accrual of interest, it did not present any evidence to the superior court explaining this $12,000 increase.
Additionally, even if the taxes and insurance could explain the difference in the principal
calculation, Goldwater [Bank] has not bothered to explain how it made its interest calculation, or changed that calculation to account for any paydown in principal associated with the credit bid. There is no evidence that [Goldwater Bank] altered the interest calculation to account for the March 2013 credit bid or the prior reductions in principal.
¶14 We acknowledge the record reflects that after Goldwater Bank lodged a proposed form of judgment against the Guarantors on Count II on October 14, 2013, Intervenors never objected to the dollar amount of the judgment Goldwater Bank was seeking (which included principal of $2,182,377.63) even though they objected to other aspects of the proposed judgment against the Guarantors. See supra ¶ 7 n.1 (explaining Guarantors are not parties to this appeal). Nevertheless, on summary judgment Goldwater Bank bore the burden of proving the amount owed under the Note with admissible evidence, and attorney argument is not evidence. Wells Fargo Bank, N.A. v. Allen, 231 Ariz. 209, 214, ¶ 20, 292 P.3d 195, 200 (App. 2012) (on summary judgment motion, before non-moving party "can reasonably be expected to submit evidence generating a dispute of material fact," the moving party must first present "admissible evidence" to dispute); Schwab v. Ames Const., 207 Ariz. 56, 60, ¶ 16, 83 P.3d 56, 60 (App. 2004) ("if a moving party's summary judgment motion fails to show entitlement to judgment, the nonmoving party need not respond to controvert the motion"); In re 1996 Nissan Sentra, 201 Ariz. 114, 117, ¶ 6, 32 P.3d 39, 42 (App. 2001) (when ruling on a party's motion for summary judgment, superior court should consider only those facts that would be admissible in evidence which generally consist of those "set forth in an affidavit or a deposition; an unsworn and unproven assertion in a memorandum is not such a fact") (internal quotations and citation omitted). Thus, Goldwater Bank, as the moving party that bore the burden of proof, was not entitled to summary judgment as a matter of law on Counts I and III because it failed to present, first, admissible evidence of the current amount owed given the passage of time, and second, as discussed infra ¶¶ 19-21, admissible evidence that the credit bid equaled or exceeded the fair market value of the Idaho Property.
B. Setoffs Claimed by Intervenors
¶15 Intervenors also argue a material issue of fact existed precluding summary judgment on the amount owed because Intervenors were entitled to amend their answer to assert counterclaims/setoffs based on Goldwater Bank's knowing disbursement of funds to the Murphys to use for non-trust purposes. Thus, according to Intervenors, the superior court abused its discretion in denying the motion to amend. We reject this argument.
¶16 The superior court did not abuse its discretion in finding Intervenors had failed to timely assert these claims. See Tumacacori Mission Land Dev., Ltd. v. Union Pac. R. Co., 231 Ariz. 517, 519, ¶ 4, 297 P.3d 923, 925 ("We review a trial court's denial of a motion to amend a complaint for an abuse of discretion."). Intervenors anticipated asserting either "a counterclaim" or "an affirmative defense" regarding Goldwater Bank's knowledge of the Murphys' intended use of the Loan funds as early as June 14, 2013, as their counsel acknowledged during oral argument on their motion to intervene that day. Only after the parties fully briefed the motions on Counts I and III, and only after the superior court held oral argument on those motions, did Intervenors move to amend. Further, as the superior court recognized, the counterclaims were essentially identical to Intervenors' affirmative defenses that were "resolved through the earlier motion for summary judgment." Thus, the time for Intervenors to assert these claims was much earlier in the case. And, telling, on appeal, Intervenors do not challenge the superior court's ruling that "the trust documents themselves provide[d] the trustees with broad authority to operate, manage, and invest trust assets," and the "law provides broad protections to people (and banks) dealing in good faith with trustees (see, for example. A.R.S. § 14-11012)."
¶17 Nevertheless, Intervenors argue the superior court's ruling that they failed to "come forward with admissible evidence creating a triable issue of fact that [Goldwater] Bank was acting with knowledge that the trustees were breaching their duties" by using Trust funds for non-trust purposes "was not dispositive of the issues to be decided on the counterclaims." This argument mischaracterizes the superior court's ruling. As discussed above, the superior court held the Trust documents granted the Murphys, as trustees, "broad authority to operate, manage, and invest trust assets," and the "law provides broad protections to people (and banks) dealing in good faith with trustees (see, for example. A.R.S. § 14-11012)." Thus, the superior court's ruling required Intervenors to show evidence, other than Trust assets being pledged for non-trust purposes, of Goldwater Bank's knowledge that the trustees were breaching their fiduciary duties.
¶18 Relying on Newbery Corp. v. Fireman's Fund Ins. Co., 95 F.3d 1392 (9th Cir. 1996), Intervenors also argue as a "matter of common law, a claim for set off must be adjudicated before final judgment is entered." Newbery directly contradicts Intervenors' argument, however, as it states "[t]he right of setoff is permissive, not mandatory; its application rests in the discretion of the court, which exercises such discretion under the general principles of equity." Id. at 1399 (internal quotation and citation omitted). Arizona law also leaves the right to a "set-off of mutual judgments . . . within the sound discretion of the [superior] court." Great Am. Ins. Co. v. Fred J. Gallagher Const. Co., 16 Ariz. App. 479, 481, 494 P.2d 379, 381 (1972); see also Nutter v. Occidental Petroleum Land & Dev. Corp., 117 Ariz. 458, 460, 573 P.2d 532, 534 (App. 1977). More fundamentally, this common law rule does not allow a party to delay in asserting its rights to a set off. Thus, this common law principle did not require adjudication of Intervenors' set off claims, and the court did not abuse its discretion in denying their motion to amend. II. Genuine Dispute of Material Fact Regarding Fair Market Value of the Idaho Property
¶19 Next, Intervenors argue Goldwater Bank was not entitled to summary judgment because Arizona Revised Statutes ("A.R.S.") § 33-814 (Supp. 2015) required the superior court to hold a hearing to determine the fair market value of the Idaho Property. Although we agree with Goldwater Bank that Intervenors should have requested a hearing much earlier in the case, nevertheless Goldwater Bank was not entitled to summary judgment without a determination of the fair market value of the Idaho Property.
Although the Arizona Legislature amended A.R.S. § 33-814 after the Trust and Shadow Ridge executed the deeds of trust in this case, the amendments are not material to our resolution of the parties' arguments on appeal. Thus, we cite to the current version of this statute and to all other statutes cited in this decision.
As stated above, Goldwater Bank purchased the Idaho Property at a trustee's sale on March 12, 2013. Intervenors opposed Goldwater Bank's summary judgment motions on Counts I and III on September 18, 2013, but did not request a determination of the Idaho Property's fair market value at that time or before. On April 28, 2014, in their judgment objections, see supra ¶ 12, Intervenors argued the superior court was required to hold a hearing to determine the fair market value of the Idaho Property. Intervenors formally requested a fair market value determination on May 9, 2014, almost 14 months after the trustee's sale.
As discussed, on March 27, 2013, the superior court granted Goldwater Bank's motion for summary judgment on Count II. See supra ¶ 7 n.1. Nearly four months later, on July 22, 2013, the Murphys filed a Rule 26.1 disclosure statement, requesting a fair market value hearing of the Idaho Property. The record contains no indication the superior court was aware of the disclosure statement.
¶20 As we explained in MidFirst Bank v. Chase, 230 Ariz. 366, 368, ¶ 7, 284 P.3d 877, 879 (App. 2012), the primary purpose of § 33-814 "is to prohibit a creditor from seeking a windfall by buying property at a trustee's sale for less than fair market value." (Internal quotations and citation omitted). Because the purchase price at a trustee's sale will not necessarily reflect the fair market value of the property, "the statute requires a determination by the court of the fair market value before a deficiency judgment may be awarded." Id. (emphasis added) (citing A.R.S. § 33-814(A)). The superior court must then subtract the greater of the sales price or the fair market value from the amount owed. Id.
¶21 In MidFirst Bank, we held a "credit bid [is] inadmissible as evidence of the fair market value of . . . property," and because the lender "only presented evidence of the credit bid, and no evidence as to the value of the property," the lender was not entitled to summary judgment. Id. at 368-69, ¶¶ 8-9, 284 P.3d at 879-80. As in MidFirst Bank, here Goldwater Bank only presented evidence of its credit bid at the trustee's sale, and no evidence as to the fair market value of the Idaho Property. Thus, because Intervenors "were entitled to a determination of the fair market value of the property," Goldwater Bank did not shoulder its burden of showing it was entitled to summary judgment as a matter of law. Id. at 369, ¶ 9, 284 P.3d at 880. III. Relief under Arizona Rule of Civil Procedure 56(f) and Intervenors' Motions to Compel
¶22 Finally, Intervenors argue the superior court abused its discretion in granting summary judgment without first granting their motion for relief under Arizona Rule of Civil Procedure 56(f) and their motions to compel documents from Goldwater Bank and its title company. In requesting relief under Rule 56(f) and moving to compel, Intervenors argued Goldwater Bank and its title company possessed documents that would demonstrate Goldwater Bank's knowledge that the Murphys were using Trust assets, encumbering those assets, and then using the Loan proceeds for non-trust purposes. Because we are remanding for limited further proceedings, see infra ¶ 28, we have elected to address this fully briefed argument to ensure it does not resurface again.
¶23 The superior court did not abuse its discretion in denying Intervenors' motion for Rule 56(f) relief as untimely and then concluding the motions to compel were moot. Simon v. Safeway, Inc., 217 Ariz. 330, 332, ¶ 4, 173 P.3d 1031, 1033 (App. 2007) ("We review a trial court's ruling on a Rule 56(f) motion for an abuse of discretion.") (citing Lewis v. Oliver, 178 Ariz. 330, 338, 873 P.2d 668, 676 (App. 1993)); Miller v. Kelly, 212 Ariz. 283, 285, ¶ 4, 130 P.3d 982, 984 (App. 2006) ("[D]iscovery issues are left to the discretion of trial courts."). The superior court found the Rule 56(f) motion was untimely because if Intervenors "thought they needed more information to respond to the motions for summary judgment, they should have filed [their] motion in connection with their response, not months later." In the context of this case, we cannot say the superior court abused its discretion in denying the motion as untimely.
¶24 Further, even assuming arguendo the evidence Intervenors sought to obtain would show Goldwater Bank knew the Murphys intended to and indeed used the Loan for non-trust purposes, this evidence was cumulative. For example, in opposing summary judgment, Intervenors offered evidence that Goldwater Bank knew Patrick Murphy was going to use the Loan to pay off Shadow Ridge's loan from Compass Bank, Shadow Ridge's taxes, and to pay off another unrelated loan. And at closing, over $643,000 of the Loan proceeds were placed in restricted accounts, and Goldwater Bank later disbursed withheld funds to Patrick Murphy personally even though he had informed it that he planned to use the funds to buy-out his business partner. This evidence showed Goldwater Bank knew how the Murphys intended to use and, in fact, used the Loan proceeds. Thus, the information sought was duplicative. For these reasons, the superior court did not abuse its discretion in denying Rule 56(f) relief. IV. Attorneys' Fees and Costs on Appeal
¶25 Both parties request attorneys' fees and costs on appeal. Intervenors request attorneys' fees and costs under A.R.S. §§ 12-341.01 (2013) and 12-341 (2013), respectively. Under § 12-341.01, a court may award reasonable attorneys' fees to the successful party, and under § 12-341, a "successful party" shall recover costs. In the exercise of our discretion, we deny Intervenors' request for a fee award under A.R.S. § 12-341.01, although we award them their court costs contingent on their compliance with Arizona Rule of Civil Appellate Procedure 21.
¶26 Goldwater Bank has also requested an award of attorneys' fees and costs on appeal under A.R.S. §§ 12-341.01 and 12-341, respectively, and under contractual provisions in the Note and the deeds of trust. Because Goldwater Bank is not the successful party on appeal, it is not entitled to statutory fees or costs. And although the Note and the Arizona Property deed of trust contain unilateral provisions authorizing Goldwater Bank to recover fees and costs expended to collect on the Note, and enforce the deed of trust, the fees and costs incurred by Goldwater Bank are not yet known in light of our remand. Thus, we deny its request for contractual fees and costs without prejudice. On remand, it may renew its request in the superior court.
¶27 We note that the fee provision in the Note is materially different from the fee provisions in the deeds of trust. The former entitles Goldwater Bank to "hire or pay someone else to help collect th[e] Note if Borrower does not pay," and requires "[b]orrower [to] pay [Goldwater Bank] that amount," see Geller v. Lesk, 230 Ariz. 624, 628, ¶ 11, 285 P.3d 972, 976 (App. 2012) ("When the parties contractually agree that a party may recover all of its attorneys' fees, the court's discretion is more limited than when awarding 'reasonable' fees."), while the latter permits Goldwater Bank "to recover such sum as the court may adjudge reasonable as attorneys' fees." We express no opinion as to which fee provision governs any fee request Goldwater Bank submits to the superior court on remand.
CONCLUSION
¶28 By not presenting admissible evidence regarding the amount owed under the Note, and by not presenting any evidence regarding the fair market value of the Idaho Property, Goldwater Bank was not entitled to summary judgment on Counts I and III. Thus, we remand on those two narrow issues. On remand Intervenors may not assert any other claims or defenses against Goldwater Bank that they could have asserted before the superior court entered judgment in Goldwater Bank's favor on Counts I and III. Accordingly, we reverse the superior court's judgment in favor of Goldwater Bank and remand to the superior court as instructed in this decision.