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Black Diamond Alliance, LLC. v. Kimball

March 25, 2010

BLACK DIAMOND ALLIANCE, LLC. PLAINTIFF/RESPONDENT,
v.
SHERRY KIMBALL, DEFENDANT/APPELLANT.



Appeal from the District Court of the Seventh Judicial District of the State of Idaho, Bonneville County. Hon. Gregory S. Anderson, District Judge.

The opinion of the court was delivered by: W. Jones, Justice

2010 Opinion No. 35

The decision of the district court is affirmed. Attorneys fees and costs are awarded to Respondent.

FACTS AND PROCEDURAL HISTORY

Sherry Kimball purchased a house in Idaho Falls, Idaho on August 30, 1988. On January 15, 2004, Kimball refinanced her home through Wells Fargo Bank, who later assigned the promissory note and deed of trust to Fremont Investment & Loan. Beginning September 1, 2006, Kimball fell behind on her monthly mortgage payments. On October 23, 2006, Fremont sent a notice informing Kimball that her loan was in default and that it intended to foreclose upon her property if she did not cure the default within thirty days. In January of 2007, when Kimball failed to cure the default, Fremont began a non-judicial foreclosure proceeding and on January 22, 2007, Just Law, Inc. was appointed as successor trustee of the deed of trust.

The initial trustee's sale (first trustee's sale) to dispose of Kimball's property was scheduled for May 29, 2007, and Kimball admitted receiving proper notification of the sale. On the morning of the scheduled sale, Kimball alleges she entered into an agreement with Fremont whereby she agreed to make a $3,000 partial payment of the past due balance in exchange for deferment of the sale until June 18, 2007. The Trustee, however, verbally announced at the time and place of the first trustee's sale that it had been rescheduled for June 12, 2007, at 11:00 a.m. and would be held at First American's office in Idaho Falls.

At the second trustee's sale, Black Diamond, a company that purchases and sells distressed properties, purchased Kimball's property for $112,500. On June 13, 2007, the day after the sale, Black Diamond placed a pamphlet and note on Kimball's door indicating that it had purchased her house. The Trustee's Deed was recorded on June 14, 2007, and sent to Black Diamond on June 15, 2007.

Kimball claims she was surprised by the sale of her property because she alleges that in exchange for the payment of $3,000, Fremont promised to give her until June 18, 2008, to pay the balance of the note. Kimball also alleges Fremont informed her that the trustee's sale had been cancelled and alleges that the Trustee confirmed the cancellation. Kimball attended neither of the scheduled trustee's sales because she claims there was no need to attend a cancelled sale and received no notice of the rescheduled sale.

Black Diamond commenced this action by filing a complaint on July 6, 2007, and it filed an amended complaint on August 17, 2009. In its amended complaint, Black Diamond sought a writ of ejectment in order to remove Kimball from her property, a writ of restitution, and attorney fees and costs. On November 7, 2007, Kimball filed an answer and a counterclaim; Kimball claimed the trustee's sale was invalid because she did not receive notice of the second sale and her forbearance agreement with Fremont. Black Diamond subsequently filed a reply wherein it asserted as a defense that it was a bona fide purchaser for value.

On January 18, 2008, Black Diamond filed a motion for summary judgment on all claims. In its memorandum, Black Diamond argued that the first trustee's sale had been postponed, not cancelled, and consequently Kimball received adequate notice through the oral announcement made at the scheduled time and place of the first trustee's sale. Additionally, Black Diamond asserted that it was entitled to summary judgment on Kimball's unjust enrichment claim and as a defense, asserted that it was a bona fide purchaser for value. Kimball filed a response to the motion for summary judgment on February 15, 2008. In her response, Kimball again argued the first trustee's sale had been cancelled, not postponed; Black Diamond was not a bona fide purchaser; and noted discovery was still pending on the bona fide purchaser issue. A hearing was held on March 6, 2008, and the district court, on March 12, 2008, granted Black Diamond's summary judgment motion.

Kimball then filed a motion for reconsideration, and Black Diamond filed a memorandum in response. The district court, on March 15, 2008, granted Kimball's motion for reconsideration and vacated the court's earlier grant of summary judgment. In so doing, the district court found there was a material question of fact as to whether Fremont agreed to cancel the first trustee's sale or merely to postpone it.

On June 4, 2008, Black Diamond filed a motion for reconsideration and subsequently filed a memorandum in support of its motion. Kimball filed a response to Black Diamond's motion for reconsideration and on August 25, 2008, Black Diamond filed a motion and memorandum for partial summary judgment, seeking summary judgment on the issue of whether Black Diamond was a bona fide purchaser for value. Kimball filed a response to the motion. On October 24, 2008, the district court granted Black Diamond's motion for reconsideration on the first issue, whether Kimball received adequate notice of the second trustee's sale, and the court awarded Black Diamond summary judgment on the second issue, whether it was the bona fide purchaser for value. Black Diamond moved for summary judgment on Kimball's remaining claim of unjust enrichment and on January 15, 2009, the district court granted Black Diamond's motion. Kimball filed a notice of appeal on January 23, 2009.

ISSUES ON APPEAL

1. Whether Kimball received adequate notice of the ...


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