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Bergeman v. Select Portfolio Servicing

Supreme Court of Idaho

December 20, 2018

DARIN BERGEMAN, Plaintiff-Appellant,
v.
SELECT PORTFOLIO SERVICING and MOHAMED ELABED, Defendants-Respondents, and WMC MORTGAGE CORPORATION, U.S. BANK NATIONAL ASSOCIATION, ALLIANCE TITLE COMPANY, SILVERCREEK REALTY GROUP, and JOHN DOES 1-6, Defendants.

          Appeal from the District Court of the Seventh Judicial District of the State of Idaho, Bonneville County, Hon. Bruce L. Pickett, District Judge.

         The judgment of the district court is affirmed.

          Robert K. Beck & Associates, PC, Idaho Falls, for Appellant. Robert K. Beck argued.

          Stoel Rives, LLP, Boise, for Respondent Select Portfolio Servicing. William C. Pooser argued.

          Maynes Taggart, PLLC, Idaho Falls, for Respondent Mohamed Elabed. Steven L. Taggart argued.

          HORTON, JUSTICE.

         Darin Bergeman appeals the district court's dismissal of his action against Select Portfolio Servicing, Inc. (Select) and Mohamed Elabed. Bergeman also appeals the district court's decision denying his motion to consolidate this case with an eviction case relating to the same property.[1] We affirm.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         This case concerns the disposition of a home and acreage owned by Bergeman's mother, Karen Hansen. In 1998, Ms. Hansen obtained a loan on the property that was secured by a deed of trust. The loan and deed of trust were eventually assigned to U.S. Bank National Association with Select as the servicer for the loan. After Ms. Hansen died in 2006, Bergeman took possession of the property. Mortgage statements continued to be sent to the estate of Ms. Hansen and Bergeman made payments that were accepted and credited to the loan. However, Bergeman did not personally assume liability on the note. In March 2012, the executor of Ms. Hansen's estate issued Bergeman an executor's deed for the property.

         Around July 2015, apparently as a result of Bergeman's incarceration, he stopped making payments on the loan. In September 2016, a Notice of Default was recorded in Bonneville County. Although he alleges that he either made payments or made arrangements for others to make payments on the loan, Bergeman admits that the loan was in default. The Notice of Default was followed in October 2016 by a Trustee's Notice of Sale that announced the foreclosure sale of the property. Notices of this sale were mailed to Ms. Hansen's estate, the executor, Bergeman, and the current occupants of the property. During this same time, Select continued to send monthly mortgage statements to the estate. The February 2017 statement reflects that a balance of $17, 932.87 was due to bring the loan payments current. At the foreclosure sale on February 23, 2017, Mohamed Elabed purchased the property.

         Bergeman filed this action in March 2017 against Select, Elabed, and other defendants alleging misrepresentation, negligent supervision, trespass, intentional infliction of emotional distress, and negligent infliction of emotional distress. Select and Elabed filed motions to dismiss pursuant to Idaho Rule of Civil Procedure 12(b)(6). The district court granted Select and Elabed's motions and denied Bergeman's motion to consolidate the action with a pending eviction case. Bergeman timely appealed to this Court.

         II. STANDARD OF REVIEW

When this Court reviews an order dismissing an action pursuant to I.R.C.P. 12(b)(6), we apply the same standard of review we apply to a motion for summary judgment. A 12(b)(6) motion looks only at the pleadings to determine whether a claim for relief has been stated. On review of a dismissal this Court determines whether the non-movant has alleged sufficient facts in support of his claim, which if true, would entitle him to relief. In doing so, the Court draws all reasonable inferences in favor of the non-moving party.

Savage v. Scandit Inc., 163 Idaho 637, 640, 417 P.3d 234, 237 (2018) (quoting Hammer v. Ribi, 162Idaho 570, 573, 401 ...


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