Opinion
DA 23-0033
03-12-2024
SHARON McCREA, Plaintiff and Appellant, v. CONNIE SUE LARSON, ESTATE OF MARTINNE E. CHEW, CHICAGO TITLE INSURANCE COMPANY, LOANCARE ACCOUNT SERVICING and Any Other Party, i.e. JOHN DOE, Defendants and Appellees.
For Appellant: Sharon McCrea, Self-Represented, Black Eagle, Montana For Appellee: William J. Levine, Marra, Evenson &Levine, P.C., Great Falls, Montana Christopher T. Sweeney, Moulton Bellingham, PC, Billings, Montana
Submitted on Briefs: January 10, 2024
APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. CDV-20-0491 Honorable John A. Kutzman, Presiding Judge
For Appellant: Sharon McCrea, Self-Represented, Black Eagle, Montana
For Appellee: William J. Levine, Marra, Evenson &Levine, P.C., Great Falls, Montana
Christopher T. Sweeney, Moulton Bellingham, PC, Billings, Montana
OPINION
Mike McGrath, Chief Justice
¶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 Sharon McCrea (McCrea) appeals from July 13, 2021, and December 5,2022 orders of the Eighth Judicial District Court granting summary judgment to Connie Sue Larson (Larson), the Estate of Martinne C. Chew (Estate), Chicago Title Insurance Company (Chicago Title), and LoanCare Account Servicing (LoanCare) (collectively "Appellees") and dismissing McCrea's complaint against them. We affirm.
McCrea filed a motion to recuse Justice Dirk Sandefur from consideration of this case. Justice Sandefur did not sit on the panel and took no part in deciding this case. McCrea's motion is therefore denied as moot.
¶3 In November 2009, Larson, as personal representative of the Estate, sold a parcel of real propeity (Lot 9) to McCrea for $35,000. McCrea signed a "NOTE SECURED BY TRUST INDENTURE" for the principal of $35,000. Larson conveyed the deed to Lot 9 to McCrea. To secure payment on the note, McCrea conveyed Lot 9 to a trust indenturewith Chicago Title as trustee and the Estate as beneficiary. The Estate later distributed the promissory note to Larson and the Estate was closed.
A trust indenture is a type of mortgage governed by the Small Tract Financing Act of Montana. See §§ 71-1-301, -321, MCA.
¶4 McCrea and Larson also contracted with Chicago Title to act as escrow agent for payments made on the note. The contract provided that Chicago Title "reserves the right at any time to transfer, set over and assign its rights, obligations and duties as 'escrow holder' to a successor 'escrow holder.'" In September 2018, Chicago Title transferred the escrow duties to LoanCare. Apparently believing the delegation to be "[im]permissible and possibly illegal," McCrea stopped all payments on Lot 9 and did not make any payments to LoanCare from October 2018 to April 2020.
¶5 Subsequently, Larson appointed William Levine (Levine) as successor trustee of the trust indenture. See § 71-1-306(2), MCA. Levine prepared and served a Notice of Trustee's Sale for Lot 9. At the trustee's sale on September 3, 2020, Larson submitted the only bid, $28,560.17, which was the total amount of principal, interest, fees, and costs due under the agreement and sale. The trustee conveyed Lot 9 to Larson, depriving McCrea of any right to Lot 9 but also releasing her of any further obligation under the note. See §§ 71-1-304(2), -317, -318(3), MCA.
¶6 Also on September 3, McCrea filed a complaint in the District Court, seeking to stop the trustee's sale and alleging possible fraud on behalf of the named parties. She requested the District Court examine the paperwork on the sale to determine whether it was "square and legal."
¶7 Larson filed an answer, a motion for summary judgment, and supporting documentation on January 13, 2021, averring that the trust indenture was properly established and the trustee's sale was properly completed. McCrea responded, generally denying Larson's factual assertions except that they had a contract with Chicago Title for repayment, and claiming deficiencies with Larson's return of waiver of service; that Lot 9 was not a "small tract" under the Small Tract Financing Act of Montana; that she was not delinquent in 2018 but instead had chosen not to pay LoanCare; that the newspaper publication of trustee's sale was legally inadequate; and alleging a conspiracy to deprive her of Lot 9 based on "[f]leeting intuition" and "gut feeling[s]." The only documents McCrea attached were documents that showed: the sale date of Lot 9; the waiver of service she had sent to Larson; the affidavit of publication on the trustee's sale of Lot 9; and photos and screenshots purporting to show harassment she claimed she was enduring meant to deprive her of Lot 9. The District Court granted Larson's motion for summary judgment on July 13, 2021, ruling that Larson was now the sole owner of Lot 9.
¶8 On September 23, 2021, remaining Appellees, Chicago Title and LoanCare, filed a motion for summary judgment. According to McCrea, she never responded to this motion-nor any of their filings-"because an attorney would advise not to respond," so she would not have to "show [her] cards" before trial. Instead, McCrea focused her submissions on post-judgment issues regarding the court's order dismissing Larson from the case. On December 5, 2022, the District Court granted the remaining defendants' motion for summary judgment as to all remaining claims. McCrea appeals.
¶9 We review a district court's grant of summary judgment de novo, applying the criteria of M. R. Civ. P. 56. Merila v. Burke, 2024 MT 4, ¶ 11, 415 Mont. 24, 541 P.3d 770. Summary judgment should be granted if there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law. M. R. Civ. P. 56(c)(3). A party opposing summary judgment may not rely merely on allegations or denials in its response but must, by affidavit or other competent evidence, set out specific facts showing a genuine issue of material fact for trial. M. R. Civ. P. 56(e)(2).
¶10 We initially note that in a thorough and detailed order, the District Court found that the parties had created a trust indenture by the sale of Lot 9 and that Larson and Levine properly completed the statutory requirements for a trustee's sale of Lot 9 under the Small Tract Financing Act of Montana. See §§ 71-1-301, -321, MCA. McCrea does not appeal these findings and they have become law of the case. See Jonas v. Jonas, 2013 MT 202, ¶ 21, 371 Mont. 113, 308 P.3d 33. Nor does McCrea dispute that she still owed money on the note. Instead, in her appeal McCrea repeats several allegations that she made throughout the case.
¶11 McCrea acknowledges in briefing that she did in fact sign a trust indenture but argues that she was surprised at closing at being asked to sign a trust indenture rather than a contract for deed. However, McCrea fails to explain what terms she expected in a contract for deed that would have materially differed from the trust indenture and thus how it relates to "possible fraud."
¶12 We read this contention as an argument that there was a unilateral mistake of fact in the sale of Lot 9 to McCrea. See § 28-2-409, MCA. Mistake of fact is used to rescind a contract that a party entered into under a substantial mistake or misapprehension of material fact, which was not the result of the party's own failure to exercise reasonable care under the circumstances. Hanson v. Town of Fort Peck, 2023 MT 208, ¶ 24, 414 Mont. 1, 538 P.3d 404. However, McCrea does not seek to rescind the contract, but rather to undo the trustee's sale of the property. Moreover, she faithfully paid on the contract for nine years and consequently cannot now rescind it. See Hanson, ¶ 24 ("If a party fails to exercise reasonable care under the circumstances and acts in such a manner as to lead the other party to believe that it assents to the terms of the written contract, the party will be bound in law and in equity, even though the party supposes the writing is an instrument of entirely different character." (internal quotations and ellipses omitted)).
¶13 She also asserts that Appellees created certain filings in the record after litigation had ensued to deceive the court. She claims she never received the letter from Chicago Title, which was submitted as part of Larson's motion for summary judgment and purports to establish McCrea's notice that LoanCare had taken over Chicago Title's escrow duties. However, McCrea attached supporting documentation to her brief which confirms that she had notice of LoanCare's escrow duties by at least June 2019, more than a year before the trustee's sale. McCrea's response brief to Larson's motion for summary judgment also confirms her notice of LoanCare's escrow duties: "I was not delinquent in the fall of 2018. I chose not to pay LoanCare Account Servicing."
¶14 In her brief, McCrea claims there are other "to be revealed aspects of the case" that amounted to error. McCrea must submit all her issues on appeal in her opening brief. M. R. App. P. 12(1)(g). Although we relax the technical requirements of the Montana Rules of Appellate Procedure for pro se litigants, the fundamental factual and legal basis for an appeal must still be discernable. Accord In re Marriage of McMahon, 2002 MT 198, ¶ 7, 311 Mont. 175, 53 P.3d 1266. We will not review any arguments not presented in McCrea's opening brief. McCrea's burden in responding to a motion for summary judgment is to, in fact, "show her cards" and present competent evidence that there are genuine disputes of material fact. M. R. Civ. P. 56(e)(2); First Nat'l Bank v Quinta Land &Cattle Co., 238 Mont. 335, 339, 779 P.2d 48, 50-51 (1989).
¶15 McCrea claims that the amortization schedule provided with Larson's motion for summary judgment is not accurate. However, McCrea does not provide her own, except for limited records of payments not in dispute. See M. R. Civ. P. 56(e)(2). Although McCrea argues she provided her own affidavit, this affidavit only states that she properly served summonses on the defendants, which is not at issue. It did not provide evidence of how much she had paid on Lot 9.
¶16 McCrea also asserts that there were issues of fact she hoped to present at trial. She argues that she wanted to present a newspaper article that led her to purchase Lot 9. The reasons why McCrea decided to purchase Lot 9 are not necessary to resolve the issue of whether the trustee's sale of the lot was properly completed. The District Court did not err in finding this was not a genuine issue of material fact necessitating a trial.
¶ 17 Finally, McCrea makes numerous allegations of harassment against her throughout the course of this litigation. The District Court held that these conclusory allegations, even if true, had nothing to do with whether the trustee's sale was properly completed as they all happened after the sale. These allegations do not address whether the certified, recorded documents provided with Larson's motion were "square and legal," and do not influence the propriety of the trustee's sale.
¶18 We agree with the District Court. We have reviewed McCrea's arguments and determine they are without merit. They do not present genuine issues of material fact that precluded summary judgment on the claims McCrea raised. "To raise a genuine issue of material fact, the proffered evidence must be material and of a substantial nature, not fanciful, frivolous, gauzy or merely suspicious." Estate of Willson v. Addison, 2011 MT 179, ¶ 14, 361 Mont. 269, 258 P.3d 410 (internal quotation omitted).
¶19 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion of the Court, the case presents a question controlled by settled law or by the clear application of applicable standards of review.
¶20 Affirmed.
We Concur: JAMES JEREMIAH SHEA, BETH BAKER, INGRID GUSTAFSON, JIM RICE