Pennell v. Nationstar Mortg.

• Decision Date: 22 November 2022
• Docket Number: DA 22-0057
• Parties: THOMAS PENNELL and MINDY PENNELL, Plaintiffs and Appellants, v. NATIONSTAR MORTGAGE, LLC d/b/a MR. COOPER; FIRST AMERICAN TITLE COMPANY OF MONTANA, INC.; DANIEL INMAN; and JOHN DOES 1-10, Defendants and Appellees.
• Court: Montana Supreme Court

2022 MT 235

THOMAS PENNELL and MINDY PENNELL, Plaintiffs and Appellants, v. NATIONSTAR MORTGAGE, LLC d/b/a MR. COOPER; FIRST AMERICAN TITLE COMPANY OF MONTANA, INC.; DANIEL INMAN; and JOHN DOES 1-10, Defendants and Appellees.

No. DA 22-0057

Supreme Court of Montana

November 22, 2022

Submitted on Briefs: September 28, 2022

APPEAL FROM: District Court of the Second Judicial District, In and For the County of Butte-Silver Bow, Cause No. DV-18-301 Honorable Kurt Krueger, Presiding Judge

For Appellants: Nathan G. Wagner, Siefert &Wagner, PLLC Missoula, Montana

For Appellees: Jason J. Henderson, Olivia L. Krebs, Mackoff Kellogg Law Firm, Dickinson, North Dakota

For Amicus Curiae: Gerry P. Fagan, Jordan W. FitzGerald, Moulton Bellingham PC, Billings, Montana

OPINION

Ingrid Gustafson, Justice

¶1 Plaintiffs and Appellants Thomas Pennell and Mindy Pennell appeal from the December 21, 2021 Order Granting Defendant's Motion for Summary Judgment and Denying Plaintiffs' Cross Motion for Summary Judgment issued by the Second Judicial District Court, Butte-Silver Bow County. The District Court's order granted the summary judgment motion of Defendant and Appellee Nationstar Mortgage, LLC d/b/a Mr. Cooper (Nationstar) and denied the Pennells' cross-motion for summary judgment.

¶2 We address the following restated issue on appeal:

In a foreclosure action arising under the Small Tract Financing Act, does a Trustee have authority to delegate to an agent its duty to give notice of the sale by certified mail, post notice of the sale of the property, and arrange to publish notice of the sale in a newspaper of general circulation prior to conducing a Trustee's Sale?

¶3 We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶4 On March 29, 2009, the Pennells entered into a Deed of Trust under the Montana Small Tract Financing Act (STFA) to secure financing to purchase property in Butte-Silver Bow County with their lender, Taylor, Bean &Whitaker Mortgage Corp. The Deed of Trust designated Mortgage Electronic Registrations Systems, Inc., as the beneficiary. The Deed of Trust was thereafter assigned to Nationstar on February 1 2016. On March 30, 2016, Nationstar appointed First American Title Company of Montana (First American) as the Successor Trustee pursuant to § 71-1-306, MCA. After the Pennells defaulted on their financial obligations under the Deed of Trust, First American began foreclosure proceedings. On February 13, 2018, an employee of First American recorded a Notice of Trustee's Sale, which scheduled a Trustee's Sale of the property for June 28, 2018. On February 28, 2018, an employee of the Mackoff Kellogg Law Firm sent, via certified mail, true and correct copies of the recorded Notice of Trustee's Sale to the Pennells. The Affidavit of Mailing reflecting service on the Pennells was recorded in the Butte-Silver Bow County records on March 5, 2018. On March 21, 2018, an employee of Williams Investigations signed an Affidavit of Posting, stating he posted the recorded Notice of Trustee's Sale in a conspicuous place on the property on March 20, 2018. The Affidavit of Posting was recorded on March 28, 2018. On April 13, 2018, an employee of the Montana Standard signed a Proof of Publication, stating the Notice of Trustee's Sale was published in the paper for three consecutive weeks. The Proof of Publication was recorded on April 18, 2018. On June 24, 2018, the Trustee's Sale was held. The property was purchased by Daniel Inman at the sale. On July 19, 2018, First American executed a Trustee's Deed conveying the property to Inman. The Trustee's Deed was recorded on July 19, 2018.

¶5 On July 26, 2018, the Pennells filed a Complaint for Declaratory Judgment, seeking a declaration that the Trustee's Sale and resulting Trustee's Deed were void due to First American's failure to follow the requirements of the STFA. On November 12, 2019, Nationstar filed a motion for summary judgment. Nationstar's motion noted the Pennells' Complaint did not identify any procedural deficiencies in the foreclosure sale, but solely made a claim First American improperly delegated some of its duties to agents. Nationstar asserted First American's delegation of some duties to agents complied with Montana law. On December 23, 2019, the Pennells filed the Plaintiffs' Combined Brief in Opposition to Nationstar's Motion for Summary Judgment and Brief in Support of Cross-Motion for Summary Judgment. The Pennells' cross-motion noted the facts of the case were not in dispute and the District Court should resolve the matter "purely through the interpretation of the applicable provisions of the STFA." The Pennells' cross-motion for summary judgment asserted the STFA expressly allows the Trustee to delegate only two tasks to agents: (1) to enlist a sheriff or constable to post a copy of the recorded notice of sale under § 71-1-315(1)(b), MCA, and (2) to allow the Trustee's attorney to sell the property at the Trustee's Sale under § 71-1-315(3), MCA, and First American's delegation of additional tasks to agents made the Trustee's Sale void. After briefing on the motions for summary judgment was completed, the District Court held a hearing on September 22, 2021.^[1] On December 21, 2021, the District Court issued its Order Granting Defendant's Motion for Summary Judgment and Denying Plaintiffs' Cross Motion for Summary Judgment.

¶6 The Pennells appeal.

STANDARD OF REVIEW

¶7 We review a district court's grant or denial of summary judgment de novo, applying the same criteria as M. R. Civ. P. 56. Knucklehead Land Co. v. Accutitle, Inc., 2007 MT 301, ¶ 10, 340 Mont. 62, 172 P.3d 116. Summary judgment is only appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Kucera v. City of Billings, 2020 MT 34, ¶ 6, 399 Mont. 10, 457 P.3d 952 (citing Davis v. Westphal, 2017 MT 276, ¶ 9, 389 Mont. 251, 405 P.3d 73).

DISCUSSION

¶8 In a foreclosure action arising under the Small Tract Financing Act, does a Trustee have authority to delegate to an agent its duty to give notice of the sale by certified mail, post notice of the sale of the property, and arrange to publish notice of the sale in a newspaper of general circulation prior to conducing a Trustee's Sale?

¶9 This matter comes to us following cross-motions for summary judgment and none of the material facts are in dispute. The issue in this case solely concerns which duties a Trustee is allowed to delegate to agents under the STFA and is purely a matter of statutory interpretation. The Pennells assert a Trustee may only delegate two duties: (1) to enlist a sheriff or constable to post a copy of the recorded notice of sale under § 71-1-315(1)(b), MCA, and (2) to allow the Trustee's attorney to sell the property at the Trustee's Sale under § 71-1-315(3), MCA, and any other delegation is specifically precluded such that it would render an ensuing Trustee's Sale null and void. Nationstar asserts First American, as Successor Trustee, was legally allowed to delegate to agents its duties under the STFA to give notice of the sale by certified mail, post notice of the sale of the property, and arrange to publish notice of the sale in a newspaper of general circulation. We agree with Nationstar.

¶10 The controversy in this case solely involves the interpretation of the STFA. In such a case, we are mindful of our statutory mandate that

[i]n the construction of a statute, the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted. Where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all.

Section 1-2-101, MCA. "When interpreting a statute, our objective is to implement the objectives the legislature sought to achieve." Mont. Vending, Inc. v. Coca-Cola Bottling Co., 2003 MT 282, ¶ 21, 318 Mont. 1, 78 P.3d 499 (citing W. Energy Co. v. Dep't of Revenue, 1999 MT 289, ¶ 11, 297 Mont. 55, 990 P.2d 767). We interpret a statute first by looking to its plain language and will not interpret the statute further if the language is clear and unambiguous. Mont. Sports Shooting Ass'n v. State, 2008 MT 190, ¶ 11, 344 Mont. 1 185 P.3d 1003. "If the intent of the legislature can be determined from the plain meaning of the words used in the statute, the plain meaning controls, and this Court need go no further nor apply any other means of interpretation." Mont. Vending, Inc., ¶ 21.

¶11 The Pennells assert Nationstar violated the STFA by delegating its duties to give notice of the sale by certified mail, post notice of the sale of the property, and arrange to publish notice of the sale in a newspaper of general circulation. Those duties, as relevant here, are governed by statute:

A trust deed may be foreclosed by advertisement and sale in the following manner:

(1) The trustee shall give notice of the sale in the following manner:

(a) At least 120 days before the date fixed for the trustee's sale, a copy of the recorded notice of sale must be mailed by certified mail to:

(i) the grantor, at the grantor's address as set forth in the trust indenture or if the grantor's address is not set forth in the trust indenture at the grantor's last-known address;

...

(b) At least 20 days before the date fixed for the trustee's sale, a copy of the recorded notice of sale must be posted in some conspicuous place on the property to be sold. Upon request of the trustee, the notice of sale must be posted by a sheriff or constable of the county in which the property to be sold is located.

(c) A copy of the notice of sale must be published in a newspaper of general circulation published in any county in

...