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Losee v. Deutsche Bank National Trust Co.

Supreme Court of Idaho

November 29, 2019

JERRY LOSEE and JOCAROL LOSEE, Plaintiffs-Appellants,

          Appeal from the District Court of the Sixth Judicial District, State of Idaho, Bannock County. Stephen S. Dunn, District Judge.

         The decision of the district court is affirmed.

          Jerry Losee and Jocarol Losee, Plaintiffs-Appellants pro se

          Hawley, Troxell, Ennis & Hawley, LLP, Boise, for Defendant-Respondent. Lars Eric Lundberg argued.


         Appellants Jerry and JoCarol Losee appeal the district court's decision granting Deutsche Bank National Trust Company's motion for summary judgment, arguing the district court erred by refusing to consider their "Chain of Title Analysis" as inadmissible hearsay. The Losees also argue the district court erred in failing to rule on two of their claims against Deutsche Bank. We affirm.


         On February 6, 2003, the Losees entered into a home mortgage loan ("Note") with New Century Mortgage Corporation. The Note was secured by a Deed of Trust.

         Several months later, the Note and Deed of Trust were transferred by New Century to Deutsche Bank by an Assignment of Deed of Trust, which was recorded on April 7, 2003. The Losees continued to make payments after the assignment.

         In 2009, however, the Losees became delinquent in their payments, eventually defaulting on the Note. Accordingly, Deutsche Bank initiated non-judicial foreclosure proceedings. On March 3, 2011, Deutsche Bank recorded a notice of default, and issued a Notice of Trustee's Sale, setting the sale for July 7, 2011.

         On July 6, 2011, the day before the trustee's sale, the Losees filed a complaint against New Century and Deutsche Bank in district court and were granted a temporary restraining order to stop the sale. Later that year, on December 7, 2011, the district court entered judgment in favor of Deutsche Bank allowing it to move forward with foreclosure.

         Then the Losees filed for bankruptcy relief on January 12, 2012, staying the foreclosure proceedings. The Losees' bankruptcy case was voluntarily dismissed fourteen days later. Following the dismissal of the Losees' bankruptcy case, Deutsche Bank set a foreclosure sale date for December 6, 2012. However, two days before the sale, the Losees again filed for bankruptcy relief and the sale was stayed for a second time.

         Over two years after the foreclosure sale was supposed to take place, a second notice of default was recorded on April 20, 2014. However, the foreclosure sale was postponed when the Losees requested a loss mitigation review. The owner of the loan would not allow loan modification, so the Losees were advised that a short sale of the property was the only loss mitigation available.

         On August 17, 2015, this case commenced when the Losees, acting pro se, filed their "Original Petition for Breach of Contract, Slander of Title for Declaratory Judgment and Motion for Temporary Restraining Order and Application for Temporary Injunction" ("Complaint") with the district court, naming Deutsche Bank and New Century as defendants. The Complaint alleged a breach of contract claim and a slander of title claim, and requested a declaratory judgment regarding the rights, obligations, and interests in the property at issue. The Losees then filed an amended complaint on September 14, 2015, adding a claim for wrongful foreclosure against New Century. On March 7, 2017, Deutsche Bank filed a motion for summary judgment.

         On April 11, 2017, the Losees submitted a "Notice of Filing for Judicial Review," to which they attached a "Chain of Title Analysis." The "Chain of Title Analysis" was a report resulting from a mortgage fraud investigation conducted by a private investigation company hired by the Losees. The Notice of Filing for Judicial Review stated that the "Chain of Title Analysis" supported the affidavit of Joseph Esquivel, Jr., which had been filed with the amended complaint a year and a half earlier. Although the "Chain of Title Analysis" was filed in support of the Esquivel affidavit, it was not labeled as an affidavit and the statements within it were unsworn.

         On August 25, 2017, the district court granted Deutsche Bank's motion for summary judgment. The district court concluded that New Century's sale of its interest in the Losees' Note did not breach the Deed of Trust, that title to the property had not been slandered or become clouded by the assignment, and that the "Chain of Title Analysis" submitted by the Losees was inadmissible hearsay not appropriate for ...

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