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Island Woods Homeowners Association, Inc v. Philip P. Mc Gimpsey

October 16, 2012

ISLAND WOODS HOMEOWNERS ASSOCIATION, INC., PLAINTIFF-RESPONDENT,
v.
PHILIP P. MC GIMPSEY,
DEFENDANT-APPELLANT,
AND
JOLENE MC GIMPSEY, AND STERLING DEVELOPMENT AND MORTGAGE CO., A MONTANA CORPORATION,
DEFENDANTS.



Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Cheri C. Copsey, District Judge.

The opinion of the court was delivered by: Melanson, Judge

2012 Unpublished Opinion No. 677

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Judgment in favor of homeowners' association in judgment lien execution action, affirmed.

Philip P. McGimpsey appeals from the district court's judgment entered in favor of Island Woods Homeowners Association (IWHA) in an action to execute on real property. For the reasons set forth below, we affirm.

I. FACTS AND PROCEDURE

In 2001, McGimpsey and his wife purchased an unimproved lot located in a subdivision in Idaho. The recorded Declaration of Covenants, Conditions, and Restrictions (CC&Rs) of the subdivision applied to all properties located within the subdivision. In 2006, the IWHA filed a complaint alleging that McGimpsey had breached the CC&Rs. McGimpsey denied any breach. The IWHA filed a motion for summary judgment, which the district court granted. The district court ordered McGimpsey to immediately comply with the CC&Rs. Subsequently, the district court heard oral argument on McGimpsey's motion to alter or amend, which the district court treated as a motion to reconsider, as well as the IWHA's request for costs and attorney fees. In February 2008, McGimpsey recorded a document entitled "Real Estate Mortgage," stating that a mortgage was created on the property effective February 28, 2008, between McGimpsey and Sterling Development and Mortgage Company.*fn1 In April 2008, the district court issued an order denying McGimpsey's motion to reconsider and granting costs and attorney fees to the IWHA. A judgment was entered in favor of the IWHA in May 2008 in the amount of $16,354.20, plus interest.

McGimpsey filed a second motion to alter or amend the judgment in the district court. In June 2008, McGimpsey filed a notice of appeal seeking review of the summary judgment decision, as well as the award of costs and attorney fees. Thereafter, the district court denied McGimpsey's second motion to alter or amend the judgment and entered an order awarding supplemental costs and attorney fees. McGimpsey filed an amended notice of appeal in September 2008, seeking relief from the district court's April 2008 order denying his motion for reconsideration and awarding costs and attorney fees, the judgment entered upon that order in May 2008, and the district court's award of supplemental costs and attorney fees. A second judgment was entered in favor of the IWHA in November 2008 in the amount of $9,062.60, plus interest.

McGimpsey continued to file various motions before the district court, all of which were denied. In September 2009, the district court again ordered the award of supplemental costs and attorney fees. A third judgment was entered in favor of the IWHA in October 2009 in the amount of $11,813.39. Thereafter, in an unpublished opinion, this Court affirmed the district court in all respects and concluded that McGimpsey's appeal was brought frivolously, unreasonably, and without foundation. Island Woods Homeowners Ass'n v. McGimpsey, Docket No. 35363 (Ct. App. Mar. 24, 2010). Thus, in June 2010, an order awarding costs and attorney fees on appeal in favor of the IWHA was entered in the amount of $18,240.

The IWHA made unsuccessful attempts to collect on the judgments awarding costs and attorney fees. Consequently, in April 2011, the IWHA filed a complaint against McGimpsey, McGimpsey's wife, and Sterling Mortgage. The complaint alleged that the conveyance of the real estate mortgage by McGimpsey to Sterling Mortgage was a fraudulent transfer. Thus, the IWHA sought an order that the conveyance of the real estate mortgage by McGimpsey to Sterling Mortgage was void and without effect or that it secured no money loaned to McGimpsey. In the complaint, the IWHA also listed the May 2008, November 2008, and October 2009 judgments owed to the IWHA and stated:

IWHA is entitled to a declaratory judgment that each of the above listed judgments owed to IWHA is valid and Mr. McGimpsey's personal and real property, including his interest and the McGimpseys' community interest in the Property, is subject to execution for the payment of those judgments in full.

The IWHA also requested that a writ of execution issue for sale of the property to satisfy all judgments owed by McGimpsey.

Sterling Mortgage and McGimpsey's wife were served with the complaint, summons, and discovery requests, but neither responded. In June 2011, the district court entered default judgment against Sterling Mortgage and declared that the real estate mortgage was void and found to secure no money owed to Sterling Mortgage by McGimpsey. The district court also entered default judgment against McGimpsey's wife and ordered that she could not raise any legal or factual objection to the property being sold at a sheriff's sale in order to satisfy the IWHA's outstanding judgment liens on the property.

McGimpsey filed an answer, in which he asserted that the real estate mortgage was valid and also raised three counterclaims. The IWHA filed a motion for summary judgment, which the district court granted. In September 2011, the district court entered a final judgment in favor of the IWHA. In January 2012, the district court awarded the IWHA a supplemental judgment for costs and attorney fees in the amount of $21,306.40. McGimpsey filed motions to vacate or amend the supplemental judgment, motions for stay of execution and sheriff's sale, and a motion to quash the amended writ of execution and levy. The district court denied all of these motions as frivolous. McGimpsey filed a notice of appeal in February 2012.

In March, the property was sold at a sheriff's sale. After applying the proceeds to satisify McGimpsey's homestead claim and the various judgments and costs associated with the sale and sheriff fees, the surplus funds were deposited with the district court. The IWHA filed a supplemental memorandum of costs and attorney fees and a motion requesting that the district court continue to hold sufficient surplus execution sale proceeds to pay any supplemental costs and attorney fees awarded and anticipated costs and attorney fees from the current appeal. In May, the district court entered a memorandum decision and order awarding the IWHA supplemental costs and attorney fees in the amount of $18,653.06. The district court further ordered ...


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