from the District Court of the Fifth Judicial District, State
of Idaho, Blaine County. Jonathan Brody, District Judge.
amended judgment of the district court is affirmed.
Gittel Gordon, appellant pro se.
Parsons Behle & Latimer, Idaho Falls, for respondents
U.S. Bank National Association, J.P. Morgan Loan Trust, Lisa
McMahon-Myhran, and Select Portfolio Servicing, Inc. Jon A.
Ellen Gittel Gordon (Gordon) defaulted on her mortgage, the
loan servicer initiated nonjudicial foreclosure proceedings
to sell her home at auction. Gordon submitted multiple loan
modification applications and appeals in an attempt to keep
her home but all were ultimately rejected. As a result,
Gordon initiated the underlying action in district court to
enjoin the foreclosure sale. Upon the filing of a motion to
dismiss that was later converted to a motion for summary
judgment, the district court dismissed Gordon's action
and allowed the foreclosure sale to take place. Gordon timely
appealed. For the reasons that follow, we affirm the district
court's dismissal of Gordon's complaint.
FACTUAL AND PROCEDURAL BACKGROUND
February 28, 2006, Gordon borrowed $1.44 million from
MortgageSelect, a corporation organized and operating in the
State of New York, to purchase a home in Ketchum, Idaho (the
property). Gordon signed a promissory note to that effect
(the note), which included an adjustable interest rate.
Gordon's initial monthly payment was $7, 050. The note
was secured by a Deed of Trust (trust deed), also executed by
Gordon on the same date. The trust deed identified Sun Valley
Title Company as the trustee and Mortgage Electronic
Registration Systems, Inc. (MERS) as MortgageSelect's
successor and the beneficiary under the trust deed.
point, JPMorgan Chase Bank (Chase) began servicing the loan
and Gordon made her payments to it. Gordon eventually
experienced a drop in income that coincided with a drop in
the value of the property. Consequently, Gordon sought to
modify her mortgage through Chase. According to Gordon, in
June 2012, a Chase loan modification processor advised her to
stop making her monthly payments in order to initiate the
modification process. Hoping to initiate a loan modification,
Gordon made her last payment in May of 2012, which resulted
in her defaulting on the mortgage in June 2012. The record
does not contain the details of this initial attempted
modification with Chase, but it is clear it was unsuccessful.
November 7, 2012, the note was assigned to U.S. Bank as
trustee of J.P. Morgan Alternative Loan Trust 2006-A3
Mortgage Pass-Through Certificates (J.P. Morgan Loan Trust),
a mortgage-backed security pool. The trust deed was also
assigned to U.S. Bank in its capacity as trustee of J.P.
Morgan Loan Trust. (For ease of reference, "U.S.
Bank" will be used to refer to the beneficiary of the
note and the holder of the trust deed.)
August 1, 2013, Select Portfolio Servicing, Inc. (SPS), began
servicing Gordon's loan. Gordon then began attempting to
modify her mortgage through SPS. Because Gordon still had
made no payments since May 2012, a foreclosure sale was
scheduled for August 15, 2014. The date for the scheduled
sale came and went without the sale occurring.
sought to sell the property to avoid foreclosure. On April
17, 2014, she had her loan evaluated for a payment plan that
would allow her to sell the property; however, she was
ineligible for the plan due to the delinquency of her
mortgage. Later, on July 15, 2014, Gordon submitted a short
sale offer to SPS for its review. Gordon withdrew that
submission on August 12, 2014, hoping to obtain a better
offer for the property. Evidently, this maneuver postponed
the scheduled August 15, 2014, foreclosure sale because on
October 22, 2014, Gordon submitted an Assistance Review
Application (or loan modification application) to SPS for
review of "all foreclosure prevention options."
7, 2015, SPS sent a letter to Gordon denying her first
modification application and informing her she could appeal
the denial or notify SPS of any errors. On May 13, 2015,
Gordon submitted a notice of error regarding the May 7, 2015,
denial, citing SPS's failure to include income from her
trust. Gordon also requested a postponement of the
12, 2015, SPS wrote to Gordon to inform her there had been no
error and her income had been calculated correctly based on
the information she had provided. In a later letter, SPS
clarified that it did not receive proof of Gordon's trust
income with the May 13, 2015, notice of error or with the
original application; thus, the calculation had been
accurately based on the amount of income Gordon had provided.
SPS then affirmed the May 7, 2015, denial, noted that a
foreclosure sale was scheduled for June 30, 2015, and
informed Gordon that if she wished to have her account
reevaluated, she would need to submit a new application.
result of this denial, Gordon filed a complaint with the
Consumer Financial Protection Bureau (CFPB). The complaint
alleged that SPS had engaged in dual tracking and failed to
properly review Gordon's modification application. By
August 18, 2015, SPS had received correspondence from the
CFPB relaying the information about Gordon's complaint.
On August 26, 2015, SPS wrote to Gordon's attorney, Scott
Rose (Rose). In that letter, SPS denied committing any
improper dual tracking and noted that no foreclosure sale was
scheduled. (Apparently, SPS must have cancelled the June 30,
2015, sale.) Subsequently, SPS accepted a second Assistance
Review Application from Gordon.
September 15, 2015, SPS denied this second loan modification
application, sending Gordon a form denial stating there were
no loss mitigation options available to her. This second
denial was largely identical to the May 7, 2015, denial;
however, this second denial stated that a modification was
unavailable because a payment equal to 31% of Gordon's
reported income could not be effectuated without
impermissibly changing the terms of the loan. Prompted by
Gordon's subsequent communication with U.S. Bank, SPS
sent an explanatory letter to Rose on September 17, 2015. The
letter clarified that although an initial error had been made
in calculating Gordon's income, the September 15, 2015,
denial was based on a recalculation done on September 11,
2015, which included Gordon's trust income. Accordingly,
SPS clarified that the most recent denial remained in effect,
despite Gordon's accurate monthly income, which included
her monthly trust income of $9, 681.75.
continued to have questions about this second denial and
corresponded with SPS yet again; Gordon alleged that SPS had
violated the Dodd-Frank Act by engaging in dual tracking. SPS
responded on November 19, 2015, admitting that the first, May
7, 2015, denial had been erroneously predicated on an
incorrect income. Regardless, SPS provided additional
information on why its second denial on September 15, 2015,
was proper even when considering Gordon's $9, 681.75
monthly trust income. Gordon, still unsatisfied, requested
another Assistance Review Application. SPS sent the third
requested application to Gordon on February 18, 2016.
January 28, 2016, SPS, as U.S. Bank's attorney-in-fact,
appointed Lisa McMahon-Myhran (McMahon-Myhran) as the trustee
of the trust deed. On August 31, 2016, McMahon-Myhran
recorded a Notice of Default declaring all sums due and
announcing U.S. Bank's intent to foreclose the trust deed
by sale at public auction. On September 6, 2016, McMahon-Myhran
also executed a Trustee's Notice of Sale, which announced
that the property would be sold at public auction at the
front steps of the Blaine County Courthouse, in Hailey,
Idaho, on January 11, 2017. The Notice of Trustee's Sale
and other notices were posted on the property September 28,
October 8, and October 17, 2016. The Notice of Trustee's
Sale was also published in the local newspaper.
ten months after Gordon received her third modification
application, SPS alerted Gordon on December 7, 2016, that the
third application had not been completed within the given
timeline and closed her request. On January 5, 2017, Gordon
contacted SPS regarding this latest denial, sending SPS an
undated appeal and a notice of error dated that same date.
January 9, 2017, just two days before the scheduled
foreclosure sale, Gordon filed her complaint in district
court against J.P. Morgan Loan Trust, U.S. Bank,
McMahon-Myhran, and SPS (collectively Lenders). The complaint
contained eleven counts, requested the foreclosure sale be
vacated and enjoined, and sought damages for alleged
violations of the Dodd-Frank Act, Idaho Code, and the trust
deed. Gordon filed a simultaneous motion for a temporary
restraining order (TRO), requesting the January 11, 2017,
foreclosure sale be halted.
January 11, 2017, the date of the noticed foreclosure sale,
SPS postponed the sale until February 9, 2017. On February 9,
2017, the sale was once again postponed and rescheduled for
March 9, 2017. However, Gordon claims this postponement was
never properly announced. On March 9, 2017, the sale was
again postponed until April 6, 2017.
March 10, 2017, the Lenders filed a notice of hearing, asking
for their various anticipated motions (including a motion to
dismiss) to be heard on April 4, 2017, two days before the
upcoming sale. Five days later, Gordon filed a notice of
hearing, requesting that her motion for a TRO be heard on
April 4, 2017, as well. On March 22, 2017, Gordon filed a
motion to strike McMahon-Myhran's declaration and a
motion to shorten time so her motion to strike could also be
heard on April 4.
March 27, 2017, the Lenders filed their motion to dismiss and
objection to Gordon's motion for a TRO. On that same day,
the Lenders also filed a motion to shorten time to hear their
motion to dismiss on April 4, 2017. The district court
granted all pending motions to shorten time on March 28,
April 4, 2017, the district court heard evidence and argument
regarding the three motions: the Lenders' motion to
dismiss, Gordon's motion for a TRO,  and Gordon's
motion to strike. Since the district court considered
evidence outside of the pleadings, the Lenders' motion to
dismiss was treated as a motion for summary judgment under
I.R.C.P. 12(d). (As a result, the Lenders' dispositive
motion will be referred to as their "converted motion to
April 5, 2017, the day before the foreclosure sale was to
occur, the district court postponed the sale until April 24,
2017. On April 24, 2017, the district court issued an order
(the order) denying Gordon's motions and granting the
Lenders' converted motion to dismiss. The order stated
"the foreclosures sale may proceed[, ]" and the
sale finally occurred that same day at which it was purchased
by credit bid, presumably by U.S. Bank. On April 26, 2017,
the district court entered an amended judgment dismissing
Gordon's action. Gordon timely appealed. On September 22,
2017, this Court denied Gordon's August 28, 2017, motion
to stay the amended judgment.
STANDARD OF REVIEW
the district court considered matters outside the pleadings,
the Lenders' motion to dismiss must be treated as a
motion for summary judgment. I.R.C.P. 12(d). This Court
employs the same standard as the district court when
reviewing a ruling on a summary judgment motion. La Bella
Vita, LLC v. Shuler, 158 Idaho 799, 805, 353 P.3d 420,
426 (2015) (citing Wesco Autobody Supply, Inc. v.
Ernest, 149 Idaho 881, 890, 243 P.3d 1069, 1078 (2010)).
"The court must grant summary judgment if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law." I.R.C.P. 56(a). "The facts must be liberally
construed in favor of the non-moving party." Tiller
White, LLC v. Canyon Outdoor Media, LLC, 160 Idaho 417,
419, 374 P.3d 580, 582 (2016) (quoting Capstar Radio
Operating Co. v. Lawrence, 153 Idaho 411, 416, 283 P.3d
728, 733 (2012)). If no genuine issue of material fact
exists, and only questions of law remain, this Court
exercises free review over such questions. See Spencer v.
Jameson, 147 Idaho 497, 501, 211 P.3d 106, 110 (2009).
interpretation of a statute is a question of law that the
Supreme Court reviews de novo." Hayes v. City of
Plummer, 159 Idaho 168, 170, 357 P.3d 1276, 1278 (2015)
(citing State v. Schulz, 151 Idaho 863, 865, 264
P.3d 970, 972 (2011)).
The district court did not abuse its discretion in granting
the Lenders' motion to shorten time or in denying
Gordon's motion to strike McMahon-Myhran's
Granting the Lenders' motion to shorten time to hear
their motion to dismiss was not an abuse of discretion.
contends that the district court abused its discretion by
granting the Lenders' motion to shorten time and in
hearing the converted motion to dismiss on April 4, 2017.
Gordon argues that the district court abused its discretion
by failing to consider both of her objections to the
converted motion, which claimed notice had been untimely. The
Lenders respond that the district court properly found good
cause to grant their motion to shorten time as allowed by
Rule 7(b)(3)(H) of the Idaho Rules of Civil Procedure. Even
though the Lenders cite to the wrong rule for the district
court's authority, the district court was authorized to
shorten time under Rule 56(b)(3). As a result, the Lenders
are correct that the district court did not abuse its
discretion by shortening time.
When a motion to dismiss under I.R.C.P. 12(b)(6) is converted
into a motion for summary judgment, the parties must be given
time specified under I.R.C.P. 56([b]) to present relevant
materials to the court. The party moving for summary judgment
must serve the motion, affidavits, and supporting brief at
least twenty-eight days before the hearing, and the adverse
party then must serve its affidavits within fourteen days of
the hearing. The court may shorten this time period for
good cause. Deciding whether to shorten time under Rule
56([b]) is subject to the court's discretion. Sun
Valley Potatoes, Inc. v. Rosholt, Robertson &
Tucker, 133 Idaho 1, 6, 981 P.2d 236, 241 (1999).
Doe v. Idaho Dep't of Health & Welfare, 150
Idaho 491, 495, 248 P.3d 742, 746 (2011) (italics added)
reviewing a decision for an abuse of discretion, this Court
considers "[w]hether the trial court: (1) correctly
perceived the issue as one of discretion; (2) acted within
the outer boundaries of its discretion; (3) acted
consistently with the legal standards applicable to the
specific choices available to it; and (4) reached its
decision by the exercise of reason." Lunneborg v. My
Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018).
purpose of the time requirements of Rule 56(b) is to give the
parties "adequate and fair opportunity" to respond.
Sun Valley Potatoes, Inc. v. Rosholt, Robertson &
Tucker, 133 Idaho 1, 5, 981 P.2d 236, 240 (1999). This
Court has noted that there are "relevant factors
involved in determining [whether] good cause existed to
grant" a motion to shorten time. Brinkmeyer v.
Brinkmeyer, 135 Idaho 596, 601, 21 P.3d 918, 923 (2001).
Those factors are: whether the responding party had notice of
the motion (or if the motion was unexpected), whether new and
unforeseeable factual information was raised by the moving
party, how much time the responding party had to respond, and
whether the responding party was prejudiced. See id.;
Doe, 150 Idaho at 496, 248 P.3d at 747; Sun Valley
Potatoes, Inc., 133 Idaho at 6, 981 P.2d at 241.
we note that the district court provided sparse analysis
regarding this issue, stating in total that it reviewed the
Lenders' motion and "determined that good cause
exists for granting such Motion to Shorten Time."
Although district courts are typically required to disclose
their reasons for discretionary decisions that directly
affect the outcome of litigation, a district court need not
disclose reasoning when "those reasons are obvious from
the record itself." Quick v. Crane, 111 Idaho
759, 772, 727 P.2d 1187, 1200 (1986). In addition, an order
shortening time does not necessarily directly affect the
outcome of litigation. Rather, it is related to the
"management of the litigation," and the district
court is granted more latitude regarding the need to
articulate its ...