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Jackie Lee Page and Teresa v. Pete Pasquali Iii; the Rupe

December 23, 2010

JACKIE LEE PAGE AND TERESA JOLENE PAGE, PLAINTIFFS-APPELLANTS,
v.
PETE PASQUALI III; THE RUPE COMPANIES, INC., AN OREGON CORPORATION DBA LANDAMERICA TRANSNATION; AND DOES 1 THROUGH 10, DEFENDANTS-RESPONDENTS, AND FIRST AMERICAN TITLE COMPANY OF IDAHO, INC., AN IDAHO CORPORATION, DEFENDANT.



Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Michael R. McLaughlin, District Judge.

The opinion of the court was delivered by: Burdick, Justice

2010 Opinion No. 139

Stephen W. Kenyon, Clerk

District court grant of summary judgment, affirmed.

The issue before this Court is the interpretation of a promissory note secured by a deed of trust. The language of the promissory note and deed of trust is clear. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Jackie and Teresa Page (the "Pages") purchased property (the "Property") in Placerville, Boise County, Idaho on October 18, 1995, and assumed an existing indebtedness in the principal amount of $48,919.61 under a promissory note (the "Note") executed on August 10, 1994, in favor of Respondent Pete Pasquali III (Pasquali). The Note was secured by a Deed of Trust on the property. The Note accrued interest at a rate of eight percent per annum and was to be paid in monthly installments of $366.88.

In 2002, due to heavy snowfall and alterations that the Pages made to the Property, the Pages suffered roof damage and eventually received a settlement check under their insurance policy for $29,432.03. Pasquali, who was listed as the loss payee on the insurance policy, sent $21,432.03 of the settlement check (the "Payment") to Respondent Rupe Companies, Inc., dba LandAmerica Transnation ("Rupe") to be applied to the Note and gave the remaining $8,000 to the Pages. Rupe applied $201.80 from the Payment to the interest then owed on the Note and applied the rest of the Payment to pay down the principal debt.

On October 6, 2004, Rupe, acting as servicing agent on the Note, sent notices of default to the Pages for failure to make monthly payments, failure to pay 2003 property taxes and failure to provide evidence of homeowner's liability insurance as required by the terms of the note. The Plaintiffs filed for bankruptcy in an effort to stop the sale of their home but the petition was dismissed. On July 20, 2005, Respondent First American Title Company (First American), acting as successor trustee on the deed of trust, sold the Property at a trustee's sale.

The Pages filed a complaint on July 19, 2007, asserting the following causes of action: (1) negligence against Rupe in crediting and applying the payments; (2) breach of contract against Rupe for demanding payments that were not due; (3) breach of contract against Pasquali for sending the Notice of Default when all payments had been made; (4) conversion against First American for advertising and selling the Property; (5) breach of fiduciary duty against Rupe and First American for foreclosing on and selling the Property; (6) negligence against First American for not properly inquiring into the payments made on the Note or for misreading the Note's terms; and (7) infliction of emotional distress against Pasquali, Rupe and/or First American for causing distress, betrayal, anxiety and anger that has significantly impacted the Pages. Underlying each claim, the Pages argued that they never defaulted, and that their home was wrongfully sold, because the Payment should have been credited as fifty-eight future monthly payments instead of paid on the principal debt.

First American filed a motion for summary judgment on October 17, 2008, which was denied in part and granted in part on October 28, 2008.*fn1 Pasquali and Rupe filed a joint motion for summary judgment, which was granted on January 5, 2009. On January 15, 2009, the district court entered a judgment in favor of Pasquali and Rupe, dismissing all claims against them. On February 25, 2009, the district court denied the Pages' motion for reconsideration. On March 9, 2009, the district court entered a I.R.C.P. 54(b) certificate of final judgment. The Pages appeal from the district court's grant of summary judgment in favor of Pasquali and Rupe and from the denial of their motion for reconsideration.

II. STANDARD OF REVIEW

As noted in Vavold v. State:

When reviewing an order for summary judgment, the standard of review for this Court is the same standard as that used by the district court in ruling on the motion. Summary judgment is appropriate if "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). Disputed facts should be construed in favor of the non-moving party, and all reasonable inferences that can be drawn from the record are to be drawn in favor of the non-moving party. This Court exercises ...


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