Sec. Fin. Fund, LLC v. Thomason
| Decision Date | 06 July 2012 |
| Docket Number | No. 37203.,37203. |
| Citation | 282 P.3d 604,153 Idaho 343 |
| Court | Idaho Supreme Court |
| Parties | SECURITY FINANCIAL FUND, LLC, an Idaho limited liability corporation, Plaintiff–Counterdefendant–Respondent, and Security Financial Services, Inc. an Idaho corporation; Strong Paw Financial Services, LLC ; Strong Paw Financial Services, Inc. an Idaho corporation, Northwest Trustee Services, Inc., an Idaho corporation, Counterdefendants, v. Byron T. THOMASON and Marilynn Thomason, husband and wife, Defendants–Counterplaintiffs–Appellants. |
Marilynn Thomason, Rexburg, pro se.
Merrill & Merrill, Pocatello, for Respondents.
Security Financial Fund, LLC, ("Security Financial") extended Byron Thomason and Marilynn Thomason ("the Thomasons"), husband and wife, a series of loans evidenced by five promissory notes, which were secured by three deeds of trust and two mortgages on real property. As a result of the Thomasons' non-payment on the two promissory notes secured by the mortgages, Security Financial filed a Foreclosure Complaint in Case No. CV–07–34. In that case, the district court held that the Thomasons defaulted on the notes. While Case No. CV–07–34 was still pending, the Thomasons filed a separate action against Security Financial and others, assigned Case No. CV–07–461, which addressed all the promissory notes executed in favor of Security Financial by the Thomasons. That action sought recovery for breach of contract and fraud, among other theories. Both actions were later consolidated. The issue of default on the notes asserted in Case No. CV–07–34 has already been decided by the district court. The secured real property in that action has already been foreclosed on and sold at sheriff auction in accordance with the district court's Judgment. Furthermore, the issue of default with regard to the notes that were secured by the deeds of trust has also been resolved and is not an issue in this action. On appeal from the district court's decision to grant Security Financial's Motion for Summary Judgment with regard to the claims that the Thomasons asserted in Case No. CV–07–461, the Thomasons contend, among other things, that the district court lacked subject matter and personal jurisdiction to foreclose on the secured property and abused its discretion.
The Thomasons executed two promissory notes in July of 2005, which were secured by two mortgages on 256 acres of land owned by the Thomasons located in Rexburg, Idaho. After the Thomasons allegedly failed to make timely payments on those notes in the months of September through December of 2006, Security Financial filed a Foreclosure Complaint on January 12, 2007. The foreclosure action was assigned Case No. CV–07–34.
In their Answer, the Thomasons denied that they had defaulted on the notes, contending that they did make timely payments during those months on both promissory notes and that Security Financial fraudulently created the defaults in order to foreclose on the secured real property. Furthermore, the Thomasons asserted that Security Financial agreed to exhaust certain escrow funds allegedly held by Security Financial or to sell real property that secured another loan extended to the Thomasons by Security Financial prior to any default. Security Financial filed its Motion for Summary Judgment on February 15, 2007. On April 12, 2007, the district court provided the Thomasons with two weeks in which to produce evidence to establish that the notes at issue were not in default. Thereafter, the district court filed its Order Denying Security Financial's Summary Judgment Motion on June 21, 2007, holding that although the Thomasons had not produced copies of checks or payment coupons for payments on the promissory notes for September and October of 2006, there was an issue of fact as to whether the Thomasons' accounts were properly credited.
On May 29, 2007, the Thomasons filed a Complaint against Security Financial and others, which was assigned Case No. CV–07–461. The Complaint contained allegations that Security Financial engaged in improper accounting and breached its contractual obligations to the Thomasons by failing to properly credit their accounts for payments made in escrow and by failing to sell a 70 acre parcel described by the Thomasons as the "Nelson Property" in order to satisfy five loans evidenced by five promissory notes executed by the Thomasons in favor of Security Financial, two of those notes included the notes addressed in Case No. CV–07–34. The five notes were secured by the two mortgages addressed in CV–07–34 and three deeds of trust. The Complaint as originally filed and later amended on May 12, 2008, raises issues of fraud, breach of contract, lack of standing, among other issues. Case No. CV–07–461 and Case No. CV–07–34 were consolidated by stipulation of the parties on October 22, 2007.
On February 22, 2008, the district court granted partial summary judgment to Security Financial on the issue of default on the two notes secured by the mortgages, but held that material issues of fact still remained concerning the amount owed by the Thomasons. The district court also held that it would appoint a special master to determine whether certain payments made by the Thomasons were properly credited to them from the escrow account or otherwise. Thereafter, on May 20, 2008, the district court appointed the accounting firm of Smith, Kunz & Associates to serve as a special master to compile an account of all amounts paid to Security Financial by the Thomasons. The special master filed its report on October 29, 2008. On February 20, 2009, the Court issued its Order Adopting the Special Master's Finding of Fact and Judgment upon the Thomasons making no objections to the special master's factual findings. Thereafter, on March 9, 2009, the district court entered a Decree of Foreclosure and Order of Sale in favor of Security Financial, holding that the amount of indebtedness on Promissory Note 1 is $423,927.53 on account number THOBYR3 and Promissory Note 2 is $80,636.25 on account number THOBY5. The Decree of Foreclosure and Order of Sale also foreclosed on the liens and ordered that the secured real property be sold at sheriff auction in Madison County, Idaho.
Thereafter, on August 17, 2009, with the issues of default and foreclosure resolved with regard to all of the mortgages and deeds of trust, Security Financial filed its Motion for Summary Judgment on the remaining issues raised by the Thomasons in Case No. CV–07–461. The district court granted Security Financial's Motion for Summary Judgment and denied the Thomasons' Motion to Dismiss for Lack of Standing. The district court then issued a Renewed Order of Sale on October 27, 2009. The secured property was sold at sheriff auction. The Thomasons filed their Notice of Appeal on November 23, 2009. The Thomasons also filed a Second Amended Notice of Appeal on January 12, 2010, prior to the entry of a final judgment. This Court initially suspended the Thomasons' appeal for lack of a final appealable judgment. The district court then filed its Order of Final Judgment on April 9, 2010. Thereafter, the Thomasons timely filed their Third Amended Notice of Appeal on May 5, 2010.
"When reviewing a grant of summary judgment, this Court applies the same standard of review used by the district court in ruling on the motion." Mortensen v. Stewart Title Guar. Co., 149 Idaho 437, 441, 235 P.3d 387, 391 (2010). A grant of summary judgment is warranted where "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." I.R.C.P. 56(c). The moving party bears the burden of proving the absence of an issue as to any material fact. Blickenstaff v. Clegg, 140 Idaho 572, 577, 97 P.3d 439, 444 (2004). The facts must be liberally construed in favor of the non-moving party. Renzo v. Idaho State Dep't of Agric., 149 Idaho 777, 779, 241 P.3d 950, 952 (2010).
The majority of the Thomasons' claims are "so lacking in coherence, citations to the record, citations of applicable authority, or comprehensible argument" that they are difficult, if not impossible, to understand. See Bach v. Bagley, 148 Idaho 784, 791, 229 P.3d 1146, 1153 (2010). This Court will not consider an issue "not supported by argument and authority in the opening brief." Id. at 790, 229 P.3d at 1152 (quoting Jorgensen v. Coppedge, 145 Idaho 524, 528, 181 P.3d 450, 454 (2008) ). Furthermore, this Court will not consider "general attack[s] on the findings and conclusions of the district court, without specific reference to evidentiary or legal errors...." Bach, 148 Idaho at 790, 229 P.3d at 1152. This Court declines to search the record on appeal for unspecified error. Suits v. Idaho Bd. of Prof'l Discipline, 138 Idaho 397, 400, 64 P.3d 323, 326 (2003).
Furthermore, the Thomasons present many new issues on appeal that lack argument or authority. This Court will not consider arguments raised for the first time on appeal. Johannsen v. Utterbeck, 146 Idaho 423, 429, 196 P.3d 341, 347 (2008). For these reasons, the Thomasons have waived the majority of their claims on appeal.
The...
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