Gordon v. U.S. Bank ( 2019 )

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 45202
(ELLEN) GITTEL GORDON, )
)
Plaintiff-Appellant, )
) Boise, May 2019 Term
v. )
) Opinion Filed: December 18, 2019
U.S. BANK NATIONAL ASSOCIATION, J.P. )
MORGAN LOAN TRUST 2006-03 company, ) Karel A. Lehrman, Clerk
LISA McMAHON-MYHRAN, SELECT )
PORTFOLIO SERVICING, INC., )
) SUBSTITUTE OPINION. THE
Defendants-Respondents, ) COURT’S PRIOR OPINION
) DATED AUGUST 28, 2019 IS
and ) HEREBY WITHDRAWN.
)
JOHN DOES 1-10, )
)
Defendants. )
Appeal from the District Court of the Fifth Judicial District, State of Idaho, Blaine
County. Jonathan Brody, District Judge.
The amended judgment of the district court is affirmed.
Ellen 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. Stenquist argued.
_____________________
STEGNER, Justice.
After Ellen Gittel Gordon (Gordon) defaulted on her mortgage, the loan servicer initiated
nonjudicial foreclosure proceedings to sell her home at auction. Gordon submitted multiple loss
mitigation 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
1
to take place. Gordon timely appealed. For the reasons that follow, we affirm the district court’s
dismissal of Gordon’s complaint.
I. FACTUAL AND PROCEDURAL BACKGROUND
On 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.
At some 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.
On 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.)
On 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.
Gordon 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
2
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 loss mitigation application) to SPS for review of “all
foreclosure prevention options.”
On May 7, 2015, SPS sent a letter to Gordon denying her initial loss mitigation
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 denial dated May 7, 2015, citing
SPS’s failure to include income from her trust. Gordon also requested a postponement of the
foreclosure sale.
On June 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 had not received 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 loss mitigation application.
As a 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 1 and
failed to properly review Gordon’s loss mitigation 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 (or loss mitigation application) from Gordon.
On September 15, 2015, SPS denied this loss mitigation 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
1
“Dual tracking is the term given to situations in which the lender actively pursues foreclosure while simultaneously
considering the borrower for loss mitigation options. [12 C.F.R.] Section 1024.41(g) prohibits dual tracking, and [12
C.F.R. section] 1024.41(a) expressly provides for a private right of action in the event the lender violates the
provision.” Gresham v. Wells Fargo Bank, N.A., 642 Fed. App’x 355, 359 (5th Cir. 2016) (citation footnotes
omitted).
3
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.
Gordon continued to have questions about this second denial and corresponded with SPS
yet again; Gordon alleged again 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 monthly trust income. Gordon, still unsatisfied, requested another Assistance Review
Application. SPS sent the third requested application to Gordon on February 18, 2016.
On 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. 2 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.
Almost ten months after Gordon received her third loss mitigation 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.
2
McMahon-Myhran recorded an initial Notice of Default on March 25, 2016. However, this notice was rescinded
on August 23, 2016.
4
On 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.
On 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.
On 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.
On 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, 2017.
On 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, 3 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 dismiss.”)
On 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
3
As will be discussed, Gordon’s motion for a TRO was correctly construed by the district court as a motion for a
preliminary injunction.
5
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.
II. STANDARD OF REVIEW
Because 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).
“The 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)).
III. ANALYSIS
A. 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
declaration.
1. Granting the Lenders’ motion to shorten time to hear their motion to dismiss was not
an abuse of discretion.
Gordon 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
6
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) (citations omitted).
When 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).
The 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.
Preliminarily, 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
7
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 reasons under those circumstances. See id. at 772 n.3, 727 P.2d at 1200 n.3.
Accordingly, the brief analysis undertaken by the district court does not amount to an abuse of
discretion.
The first consideration under the abuse of discretion standard has been met here. The
district court correctly recognized that the converted motion to dismiss was governed by Rule 56.
It has been a long standing rule that deciding whether to shorten time under Rule 56 is a matter
of discretion. See Doe, 150 Idaho at 495, 248 P.3d at 746; Sun Valley Potatoes, Inc, 133 Idaho at
5–6, 981 P.2d at 240–41. We conclude the district court correctly perceived this issue as one of
discretion.
The remaining elements on review have been satisfied as well. In this case, the April 4,
2017, hearing was scheduled so that the TRO could be addressed before the foreclosure sale,
which was set to occur on April 6, 2017. The Lenders’ actual motion to dismiss and motion to
shorten time were not filed until March 27, 2017, just eight days before the April 4 hearing.
However, Gordon admitted to receiving the Lenders’ memorandum in support of their motion to
dismiss on March 21, 2017, approximately fourteen days before the hearing. Gordon also filed a
twenty-page objection to the motion to dismiss on March 29, 2017.
The factors outlined above were satisfied here because Gordon had notice of the
upcoming motion, she was given nearly two weeks in which to respond, there is no evidence that
the Lenders announced new or unforeseeable factual information, and Gordon was not
prejudiced given her twenty-page objection. Moreover, since the motion for the TRO needed to
be heard before the foreclosure sale, judicial economy supported the district court’s decision to
hear all the motions related to the upcoming foreclosure sale at the same time. Additionally, the
purpose of the time requirements of Rule 56—to give the parties adequate and fair opportunity to
respond—remained satisfied despite the shortened timeframe. Sun Valley Potatoes, Inc., 133
Idaho at 5, 981 P.2d at 240. Accordingly, the decision to shorten time was within the boundaries
of the district court’s discretion, consistent with the applicable legal standards, reached by
reason, and the court did not abuse its discretion in granting the motion to shorten time.
8
2. Denying Gordon’s motion to strike McMahon-Myhran’s declaration was not an abuse
of discretion.
Gordon next contends that McMahon-Myhran’s declaration should have been stricken as
it was based in part on hearsay—not personal knowledge. “This Court reviews challenges to the
trial court’s evidentiary rulings under the abuse of discretion standard.” Dulaney v. St. Alphonsus
Reg’l Med. Ctr., 137 Idaho 160, 163–64, 45 P.3d 816, 819–20 (2002) (citation omitted). “At any
stage of a proceeding, Idaho courts are to ‘disregard all errors and defects that do not affect any
party’s substantial rights.’” In re Doe, 163 Idaho 565, 571, 416 P.3d 937, 943 (2018) (quoting
I.R.C.P. 61). As a result, in order to prevail, an “appellant must present some argument that a
substantial right was” affected by the alleged error. Id. (quoting Hurtado v. Land O’Lakes, Inc.,
153 Idaho 13, 18, 278 P.3d 415, 420 (2012)).
McMahon-Myhran’s declaration merely reintroduced copies of the three admitted
postponement scripts. These three scripts were admitted through other affidavits uncontested by
Gordon. Consequently, McMahon-Myhran’s declaration was ultimately cumulative; even if it
had been stricken in its entirety, it would not have altered the record before the trial court. It
therefore cannot be said that its inclusion affected Gordon’s substantial rights. Therefore, the
district court did not abuse its discretion by allowing the declaration to remain in the record.
B. The district court correctly denied Gordon’s requested injunction and
appropriately granted summary judgment in favor of the Lenders.
This case has an unusual procedural background involving the Lenders’ converted
motion to dismiss on the one hand and Gordon’s motion for a TRO that was treated as a motion
for a preliminary injunction on the other. These two motions were addressed at the same hearing.
Accordingly, we take this opportunity to clarify that the district court’s granting of summary
judgment properly addressed Gordon’s arguments for injunctive relief and properly dismissed
her claim.
Initially, Gordon’s motion for a TRO was properly construed by the district court as a
motion for a preliminary injunction. When Gordon filed her complaint with the district court on
January 9, 2017, she moved for a TRO under Rule 65(b) of the Idaho Rules of Civil Procedure.
Orders issued pursuant to Rule 65(b) are of short duration (no more than 14 days) because of
their extraordinary procedural posture. See I.R.C.P. 65(b)(2). At the time, a foreclosure sale was
scheduled to occur just two days after the hearing, on January 11, 2017; thus, a motion under
Rule 65(b) was appropriate. However, the January 11, 2017, foreclosure sale was postponed by
9
the Lenders. 4 Two months later, on March 15, 2017, Gordon filed a memorandum supporting her
motion for the TRO—the memorandum still claimed to be brought under Rule 65(b). However,
the Lenders had notice of the requested injunction and were able to present arguments against it.
Because the Lenders had been notified of Gordon’s requested injunction and the district court
held a contested hearing on the matter, Gordon’s motion for a TRO was properly characterized
as a motion for a preliminary injunction under Rule 65(a). See Wood v. Wood, 96 Idaho 100, 101,
524 P.2d 1072, 1073 (1974) (“The function of [a temporary restraining] order is to preserve the
status quo during the interim and until a hearing can be held after notice to the adverse party on
the application for a preliminary injunction.”).
1. The district court’s summary judgment analysis implicitly addressed Gordon’s
preliminary injunction arguments.
Despite appropriately categorizing Gordon’s motion as a request for a preliminary
injunction, the district court analyzed a number of Gordon’s arguments under the summary
judgment standard. Due to the nature of the grounds for Gordon’s proposed preliminary
injunction, this was not error.
A party seeking a preliminary injunction bears “the burden of proving the right
thereto . . . .” Harris v. Cassia Cty., 106 Idaho 513, 518, 681 P.2d 988, 993 (1984) (citing
Lawrence Warehouse Co. v. Rudio Lumber Co., 89 Idaho 389, 405 P.2d 634 (1965)). “Whether
to grant or deny a preliminary injunction is a matter for the discretion of the trial court.” Brady v.
City of Homedale, 130 Idaho 569, 572, 944 P.2d 704, 707 (1997) (citing Harris, 106 Idaho at
517, 681 P.2d at 992). A district court should grant a preliminary injunction “only in extreme
cases where the right is very clear and it appears that irreparable injury will flow from its
refusal.” Id. (quoting Harris, 106 Idaho at 518, 681 P.2d at 993).
Rule 65(e) enumerates the grounds upon which a district court may grant a preliminary
injunction. I.R.C.P. 65(e). Gordon posited, below and on appeal, three substantive arguments to
support her proposed injunction. All three arguments implicate subsection 65(e)(1). That section
authorizes a district court to grant a preliminary injunction “when it appears by the complaint
that the plaintiff is entitled to the relief demanded, and that relief, or any part of it, consists of
restraining the commission or continuance of the acts complained of, either for a limited period
4
This postponement is not contested on appeal.
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or perpetually[.]” I.R.C.P. 65(e)(1). This Court, has announced the following rules regarding
subsection (e)(1): The moving party must
demonstrate that based on their complaint, they were entitled to the relief they
demanded, and as such were likely to prevail at trial. The substantial likelihood of
success necessary to demonstrate that . . . [the moving party is] entitled to the
relief . . . demanded cannot exist where complex issues of law or fact exist which
are not free from doubt.
Harris, 106 Idaho at 518, 681 P.2d at 993 (analyzing an earlier yet substantively identical
version of Rule 65(e)(1)).
Accordingly, when an argument for a preliminary injunction is based on entitlement to
the requested relief, such as the case is here, a sufficient showing by the party opposing the
injunction that it is entitled to summary judgment necessarily defeats the moving party’s ability
to demonstrate the requisite likelihood of success. In other words, the legal effect of the district
court’s conclusion that the Lenders were entitled to summary judgment would unavoidably result
in the rejection of Gordon’s motion for a preliminary injunction.
On appeal, we review the district court’s dismissal of Gordon’s complaint under the
summary judgment standard, with the understanding that such dismissal implicitly found
Gordon’s argument could not support the requested preliminary injunction.
2. The alleged postponement error was not a sufficient basis to delay the foreclosure
sale.
In support of her effort to enjoin the foreclosure sale, Gordon argued that the Lenders
failed to properly cry and postpone the foreclosure sale on February 9, 2017. The district court
noted conflicting evidence in the matter and inferred that the postponement had been properly
cried. Gordon continues to argue on appeal that the postponement was not properly cried and that
the inference drawn by the district court was improper. The Lenders contend that the district
court properly inferred that the foreclosure sale was postponed in accordance with Idaho Code
section 45-1506(8). In the alternative, they argue that even if the postponement did not occur as
determined by the district court, section 45-1508 does not allow Gordon to undo the later
foreclosure sale. The Lenders argue that whatever transpired at the earlier postponement is
immaterial given subsequent events. We agree.
Section 45-1506(8) establishes the relevant procedure for providing notice regarding
postponement of a foreclosure sale. It reads, “The trustee may postpone the sale of the property
11
upon request of the beneficiary by publicly announcing at the time and place originally fixed for
the sale the postponement to a stated subsequent date and hour.” I.C. § 45-1506(8). The purpose
of section 1506(8) is to give a debtor notice that the sale date has been postponed so she may
protect her interest in the property at the rescheduled sale. See Black Diamond All., LLC. v.
Kimball, 148 Idaho 798, 801, 229 P.3d 1160, 1163 (2010).
There is no dispute that Gordon received notice of, and seemingly acquiesced to, the two
later postponements—the final of which was pronounced by the district court. At the end of the
day, Gordon had actual notice of the final sale. Actual notice afforded her the protection
contemplated by the legislature in Idaho Code section 45-1506(8). She was able to protect her
interest in the property at the rescheduled sale. Accordingly, any alleged error occurring at the
February 9, 2017, postponement was remedied through the later notices of and Gordon’s
apparent acquiescence to the later postponements because she was properly informed. See Black
Diamond, 148 Idaho at 801, 229 P.3d at 1163.
The determination that Gordon’s later acquiescence to the subsequent postponements
remedied any alleged error in the postponement procedure is supported by Idaho Code section
45-1508. Section 45-1508 establishes when foreclosure sales become final despite defects in
notice proceedings. That statute reads,
FINALITY OF SALE. A sale made by a trustee under this act shall foreclose and
terminate all interest in the property covered by the trust deed of all persons to
whom notice is given under section 45-1506, Idaho Code, and of any other person
claiming by, through or under such persons and such persons shall have no right
to redeem the property from the purchaser at the trustee’s sale. The failure to give
notice to any of such persons by mailing, personal service, posting or publication
in accordance with section 45-1506, Idaho Code, shall not affect the validity of
the sale as to persons so notified nor as to any such persons having actual
knowledge of the sale. Furthermore, any failure to comply with the provisions of
section 45-1506, Idaho Code, shall not affect the validity of a sale in favor of a
purchaser in good faith for value at or after such sale, or any successor in interest
thereof.
I.C. § 45-1508 (italics added). The Lenders claim that section 45-1508, along with Spencer v.
Jameson, 147 Idaho 497, 211 P.3d 106 (2009), dictate that the completed foreclosure sale should
not be invalidated or reversed—despite any alleged error in postponement or purported violation
of section 45-1506(8). The Lenders are correct and Spencer is instructive.
Like the case at bar, the debtor in Spencer received proper notice of the initial foreclosure
sale. Spencer, 147 Idaho at 500, 211 P.3d at 109. Also like this case, the sale in Spencer was
12
alleged to have violated a separate subsection of 45-1506 not involving the service or publication
of the initial notice; the lender had violated subsection (9) by placing a credit bid over the
amount owed under the promissory note at the time of the foreclosure sale. Id. at 503, 211 P.3d
at 112 (citing Fed. Home Mortg. Corp. v. Appel, 143 Idaho 42, 45, 137 P.3d 429, 432 (2006)).
Despite this violation of section 45-1506(9), this Court interpreted section 45-1508 and found
that the sale was final. Id. at 504, 211 P.3d at 113. We reasoned that it was not the legislature’s
intent to set aside a sale for a credit bid violation when no notice of a violation of service and
publication under section 45-1506(2)–(6) had occurred and a separate remedy existed under
section 45-1507 for the credit bid violation. Id. These two rationales remain valid here.
First, there is no dispute about the propriety of the initial notice of the foreclosure sale:
service and publication under section 45-1506(2)–(6) were properly completed. Nor is there any
dispute that Gordon received actual notice of the two later postponements—the latter of which
was pronounced by the district court. Thus, Gordon had actual notice of the sale.
Second, and as noted, the subsequent uncontested postponements and actual notice of the
sale rendered any initial failure to properly cry the February 9, 2017, postponement immaterial.
These proper subsequent procedures remedied any prior problems with whatever transpired at
the February 9, 2017, postponement. As a result, the completed foreclosure sale will not be
undone merely because Gordon contends the postponement that occurred months before the sale
was somehow improper. See Spencer, 147 Idaho at 503, 211 P.3d at 112. Accordingly, Gordon’s
argument that a postponement error occurred is not a basis to undo what was done. Because
subsequent events rendered the earlier postponement immaterial, it was unnecessary for the
district court to make a factual finding regarding the earlier postponement. It does not provide a
basis to conclude the district court’s rejection of Gordon’s motion for a preliminary injunction
was in error.
3. The Lenders’ failure to record a power of attorney did not invalidate the foreclosure
procedures, nor did it provide grounds to enjoin the sale.
On January 28, 2016, SPS (the loan servicer) executed an Appointment of Successor
Trustee, appointing McMahon-Myhran as successor trustee under the trust deed. This
appointment was recorded in Blaine County, Idaho, on February 8, 2016. SPS did so as U.S.
13
Bank’s attorney-in-fact. However, no power of attorney appointing SPS 5 as U.S. Bank’s
attorney-in-fact had been previously recorded in Blaine County. Months later, McMahon-
Myhran recorded the initial Notice of Default on August 31, 2016, and executed the Notice of
Sale on September 6, 2016.
Gordon claims that Idaho Code section 55-806 required U.S. Bank to record a power of
attorney in Blaine County, granting SPS the authority to act as the bank’s attorney-in-fact when
it appointed McMahon-Myhran; the bank failed to do so. Gordon thus contends that the failure to
record the power of attorney violated Idaho Code section 55-806, thereby rendering SPS’s
appointment of McMahon-Myhran as trustee ineffectual. Gordon contends the ensuing sale was
invalid because McMahon-Myhran did not have the requisite authority to effect the foreclosure
procedures. The district court found the failure to record the power of attorney did not invalidate
the sale, as such a prior recording was not required in this case. The district court was correct in
its determination.
Our analysis begins with an interpretation of Idaho Code section 55-806.
“Statutory interpretation begins with the literal language of the statute and provisions should not
be read in isolation, but must be interpreted in the context of the entire document.” Hayes, 159
Idaho at 170, 357 P.3d at 1278 (quotation marks and citation omitted). When interpreting
statutes, the objective is to give effect to legislative intent, which should be derived from the
whole act at issue. Farmers Nat’l Bank v. Green River Dairy, LLC, 155 Idaho 853, 856, 318 P.3d
622, 625 (2014) (citations omitted). A statute’s title may be consulted for context when the
statute is ambiguous or when the title’s conformity to Article III, Section 16 of the Idaho
Constitution is brought into question. Federated Publ’ns, Inc. v. Idaho Bus. Review, Inc., 146
Idaho 207, 211, 192 P.3d 1031, 1035 (2008), abrogated on other grounds by Verska v. Saint
Alphonsus Reg’l Med. Ctr., 151 Idaho 889, 265 P.3d 502 (2011). As an extension of Federated
5
Gordon correctly noted that the district court incorrectly stated that MERS, as the beneficiary of the trust deed,
appointed SPS as its attorney-in-fact. MERS had ceased being the beneficiary under the trust deed when it was
assigned to U.S. Bank on November 7, 2012. It appears that Chase, SPS’s predecessor as loan servicer, somehow
granted SPS a limited power of attorney—not MERS. However, given the conclusion reached by this Court, this
inaccuracy is irrelevant, as a failure to record a power of attorney in this instance does not invalidate the foreclosure
sale.
14
Publications, Inc., we find that the title of a statutory section may be consulted for context when
the statute is otherwise unambiguous. 6
Idaho Code section 55-806, which requires recordation of powers of attorney in certain
circumstances, reads as follows: “POWER MUST BE RECORDED BEFORE CONVEYANCE
BY ATTORNEY. An instrument executed by an attorney in fact must not be recorded until the
power of attorney authorizing the execution of the instrument is filed for record in the same
office.” I.C. § 55-806. Although the language of this statute appears broad on its face, suggesting
any instrument signed by an attorney-in-fact has to be preceded by a recorded power of attorney,
the surrounding statutory sections, and the title of section 55-806, show this is not the case, and a
prior recording was not required here.
There is no requirement to record a power of attorney if the document signed by the
attorney-in-fact does not affect an interest in real property. First, section 55-801, of Chapter 8
titled “Recording Transfers,” notes the type of instruments that are subject to the recording rules
and may be recorded. I.C. § 55-801. It reads, “[a]ny instrument or judgment affecting the title to
or possession of real property may be recorded under this chapter.” Id. (italics added). Second,
the title of section 55-806 further demonstrates that a power of attorney need only be recorded
prior to the “conveyance” by the attorney-in-fact. I.C. § 55-806 (“POWER MUST BE
RECORDED BEFORE CONVEYANCE BY ATTORNEY.”). Section 55-813 then defines
conveyance: “The term ‘conveyance’ as used in this chapter, embraces every instrument in
writing by which any estate or interest in real property is created, alienated, mortgaged or
encumbered, or by which the title to any real property may be affected, except wills.” I.C. § 55-
813. When read in conjunction, these sections require only that a power of attorney be recorded
before an attorney-in-fact executes an instrument that affects an estate or interest in real property.
Here, the instrument signed by the attorney-in-fact, SPS, merely names a new trustee
under the trust deed. All that appointment did was change the identity of a previously established
trustee—no interest in real property was altered in any way, as the trust deed already established
the trustee’s rights and duties. A mere change in what entity may perform those established
duties did not affect any real property interests; therefore, section 55-806 was not implicated and
6
As the Court of Appeals has correctly noted, the title of a statutory section is part of the act to be considered;
however, it cannot be used to create ambiguity. State v. Williston, 159 Idaho 215, 219, 358 P.3d 776, 780 (Ct. App.
2015); State v. Peterson, 141 Idaho 473, 476, 111 P.3d 158, 161 (Ct. App. 2004); State v. Browning, 123 Idaho 748,
750, 852 P.2d 500, 502 (Ct. App. 1993).
15
no prior recording needed to occur. Furthermore, the appointment was permitted under the trust
deed itself and Idaho Code section 45-1504(2).
Moreover, “[t]he primary purpose of the recording statutes is to give notice to others that
an interest is claimed in real property . . . .” Matheson v. Harris, 98 Idaho 758, 761, 572 P.2d
861, 864 (1977). Thus, the failure to record a power of attorney does not void a conveyance
between the parties involved; it merely renders the recorded conveyance ineffectual as notice to
subsequent purchasers. See Hunt v. McDonald, 65 Idaho 610, 149 P.2d 792 (1944) (analyzing
the predecessor to I.C. § 55-806, section 54-806, I.C.A.); I.C. § 55-815. Accordingly, in
recognizing that the purpose of recording instruments is to give subsequent purchasers notice, the
United States District Court for the District of Idaho has twice held, in similar circumstances,
that the appointment of a successor trustee by an attorney-in-fact, without a prior recorded power
of attorney, was valid and did not undermine a foreclosure sale as to the original debtor.
Rheinschild Family Tr. v. Rankin, No. 1:15-CV-00194-EJL, 2016 WL 1170945, at *8 (D. Idaho
Mar. 24, 2016) (“[A]n appointment of successor trustee is legally valid between the parties to the
appointment even if the power of attorney was not recorded.” (citing Purdy v. Bank of Am., No.
1:11-CV-00640-EJL, 2012 WL 4470938, *5 (D. Idaho 2012))).
In conclusion, the recording rule in section 55-806 does not apply to the appointment of a
successor trustee in this case, and even if recording the power of attorney were required, the
failure to do so would not invalidate the foreclosure sale as between Gordon and the beneficiary
of the trust deed. Accordingly, this argument does not supply grounds for Gordon’s injunctive
relief, and the district court did not err in denying that relief.
4. There are no genuine issues of material fact suggesting the Lenders violated federal
law or engaged in dual tracking; thus, this allegation was an insufficient basis for
enjoining the sale.
Gordon’s last ground for injunctive relief alleges that the Lenders violated federal law by
engaging in dual tracking. The Lenders reply that they complied with all applicable federal
regulations and that Gordon has failed to raise a genuine issue of material fact as it relates to the
Lenders’ compliance with federal law.
“A party asserting that a fact . . . is genuinely disputed must support the assertion
by . . . citing to particular parts of materials in the record, . . . or [by] showing that the materials
cited do not establish the absence . . . of a genuine dispute . . . .” I.R.C.P. 56(c)(1). Thus, “the
party opposing summary judgment must bring to the trial court’s attention evidence that may
16
create a genuine issue of material fact . . . .” Beus v. Beus, 151 Idaho 235, 239, 254 P.3d 1231,
1235 (2011) (citing Esser Elec. v. Lost River Ballistics Techs., Inc., 145 Idaho 912, 919, 188
P.3d 854, 861 (2008)). Mere conclusory allegations will not raise a genuine issue of material
fact. See Valiant Idaho, LLC v. VP Inc., 164 Idaho 314, 326, 429 P.3d 855, 867 (2018) (citing
Stafford v. Weaver, 136 Idaho 223, 225, 31 P.3d 245, 247 (2001)).
Dual tracking, where a “lender actively pursues foreclosure while simultaneously
considering the borrower for loss mitigation options[,]” is prohibited by section 1024.41(g) of
title 12 of the Code of Federal Regulations. Gresham, 642 Fed. App’x at 359. While the district
court quoted and seemingly analyzed section 1024.41(g), subsection (g) is not applicable here.
Section 1024.41(g) states, in pertinent part,
If a borrower submits a complete loss mitigation application[ 7] after a servicer
has made the first notice or filing required by applicable law for any judicial or
non-judicial foreclosure process but more than 37 days before a foreclosure sale,
a servicer shall not move for foreclosure judgment or order of sale, or conduct a
foreclosure sale unless [one of the enumerated circumstances has occurred.]
12 C.F.R. § 1024.41(g) (italics added).
The facts of this case do not implicate subsection (g): Gordon’s second loss mitigation
application, which was denied based on her corrected income, was on September 15, 2015. The
unrescinded Notice of Default was not filed until almost a year later on August 31, 2016, well
after the completed, accurate loss mitigation application had been denied. Thus, the second (and
only fully completed and accurate) loss mitigation application was not submitted “after a
servicer . . . made the first notice or filing required . . . for any . . . non-judicial foreclosures
process . . . .” 12 C.F.R. § 1024.41(g).
Gordon’s final (third) loss mitigation application, which was still open for review after
the filing of the notice of default, does not implicate subsection (g) either. That application was
never completed as required by subsection (g), nor was SPS even required to evaluate that latter
application at all, since SPS evaluated Gordon’s second loss mitigation application (which was
7
“A complete loss mitigation application means an application in connection with which a servicer has received all
the information that the servicer requires from a borrower in evaluating applications for the loss mitigation options
available to the borrower. A servicer shall exercise reasonable diligence in obtaining documents and information to
complete a loss mitigation application.” 12 C.F.R. § 1024.41(b)(1).
17
denied) and Gordon had remained delinquent on her mortgage. 12 C.F.R. § 1024.41(i).8
Accordingly, no violation occurred regarding Gordon’s final loss mitigation application, and
subsection (g) is not applicable to it either.
However, 12 C.F.R. Section 1024.41(f), which bars dual tracking when an application is
submitted before a notice of default is filed, does apply here. Even so, there is no evidence the
Lenders failed to comply with subsection (f). The relevant portion of subsection (f) states,
If a borrower submits a complete loss mitigation application . . . before a servicer
has made the first notice or filing required by applicable law for any judicial or
non-judicial foreclosure process, a servicer shall not make the first notice or filing
required by applicable law for any judicial or non-judicial foreclosure process
unless:
(i) The servicer has sent the borrower a notice pursuant to paragraph (c)(1)(ii) of
this section that the borrower is not eligible for any loss mitigation option and the
appeal process in paragraph (h) of this section is not applicable, the borrower has
not requested an appeal within the applicable time period for requesting an
appeal, or the borrower’s appeal has been denied[.]
12 C.F.R. § 1024.41(f)(2) (italics added). Accordingly, a loan servicer has complied with
subsection (f) and is allowed to initiate foreclosure proceedings once it (1) gives proper notice
under subsection (c)(1)(ii) to the borrower that she is not eligible for any loss mitigation option
but has the right to appeal, and (2) either gives the borrower notice that the appeal process was
not applicable, the borrower fails to request an appeal within the notified time frame, or the
appeal has been properly denied. Id.
Gordon contends SPS erred in denying her first modification application because it was
rejected based on an incorrect income calculation, suggesting SPS may not have exercised
reasonable diligence in obtaining correct income documentation. Specifically, she alleges that
the Lenders violated 12 C.F.R. § 1024.35 by “ignoring” her notice of error. Gordon maintains
SPS was required to conduct a “reasonable investigation” and was authorized to request
documentation of Gordon’s trust income when Gordon filed her first notice of error. 12 C.F.R. §
1024.35(e)(1)(i)(B) & (e)(2)(ii). SPS did not do this at that time. However, this error was
remedied by SPS in Gordon’s second loss mitigation application, when Gordon’s trust income
8
Subsection (i) reads, “A servicer must comply with the requirements of this section for a borrower’s loss mitigation
application, unless the servicer has previously complied with the requirements of this section for a complete loss
mitigation application submitted by the borrower and the borrower has been delinquent at all times since submitting
the prior complete application.”
18
was properly analyzed. If SPS had failed to acknowledge and rectify its failure to recognize
Gordon’s substantial trust income, SPS’s failure would have provided a basis to enjoin the
foreclosure process. 12 C.F.R. § 1024.35(e)(1)(i)(A). However, SPS corrected its oversight long
before both the recording of the Notice of Default and foreclosure sale. Accordingly, this error
did not amount to dual tracking.
Regarding Gordon’s second loss mitigation application, SPS satisfied the first
requirement of Section 1024.41(f) on September 15, 2015, by providing Gordon with written
notice that she was not eligible for any loss mitigation options and that she could appeal the
denial within thirty days. The second requirement was also satisfied because Gordon never
requested an appeal of her second denial within thirty days. Although Gordon continued to
correspond with SPS about the denial dated September 15, 2015, and appears to have requested a
third loss mitigation application that was never completed and subsequently closed by SPS on
December 7, 2016, she did not appeal the September 15, 2015, denial. As a result, the Lenders
did not violate subsection (f) when they began foreclosure proceedings by recording the Notice
of Default on August 31, 2016, over nine months after Gordon was required to have submitted
her appeal.
Gordon did attempt to appeal the closure of her final application on January 5, 2017.
However, this appeal was too little, too late, as far as the federal regulations were concerned. As
noted, Gordon’s final application was inapplicable for purposes of preventing the foreclosure
sale because 12 C.F.R. § 1024.41(i) only required SPS to consider one completed loss mitigation
application, which it did with her second application. Thus, Gordon had no right to appeal the
closure of her incomplete loss mitigation application that SPS had no obligation to review in the
first place. Consequently, Gordon has not raised a genuine issue of material fact suggesting the
Lenders violated 12 C.F.R. § 1024.41.
Finally, Gordon claims that the district court’s summary judgment must be vacated
because it found dual tracking was legal in Idaho, 9 which would amount to a violation of the
Supremacy Clause, as dual tracking is prohibited by federal law. Although the district court cited
9
Although it is ultimately immaterial to Gordon’s appeal, we take this opportunity to clarify that the Idaho
Legislature has provided certain limited protections against dual tracking. Idaho Code section 45-1506C(3) provides
some protection against a lender conducting a foreclosure sale, in certain circumstances, and states, “A trustee’s sale
for the property subject to the loan may not occur until after the beneficiary or the beneficiary’s agent timely
responds to” a properly requested loan modification. I.C. § 45-1506C(3).
19
the incorrect federal regulation, it nonetheless analyzed federal law and reached the correct
conclusion, ensuring federal law applied in accordance with the Supremacy Clause.
In conclusion, all three of Gordon’s arguments in support of her injunctive relief fail as a
matter of law. The district court was therefore correct in granting summary judgment and
dismissing her claim for injunctive relief.
C. The district court correctly dismissed Gordon’s breach of the covenant of good faith
and fair dealing claim, as Gordon failed to raise any genuine issue of material fact
that the Lenders had violated the covenant.
The district court found that there was no breach of the implied covenant of good faith
and fair dealing because the Lenders merely acted in accordance with the note and trust deed. As
a result, the district court dismissed Gordon’s related claims.
On appeal, Gordon claims that the Lenders violated the covenant of good faith and fair
dealing by committing a litany of actions listed below. Regardless, Gordon does not appear to
cite to or analyze any Idaho law regarding these allegations. Moreover, her arguments are largely
conclusory and her record citations are to her own conclusory statements made in her affidavits
and letters. Accordingly, she has failed to meet her burden of raising a genuine issue of material
fact.
“A party asserting that a fact . . . is genuinely disputed must support the assertion
by . . . citing to particular parts of materials in the record, . . . or [by] showing that the materials
cited do not establish the absence . . . of a genuine dispute . . . .” I.R.C.P. 56(c)(1). “[T]he party
opposing summary judgment must bring to the trial court’s attention evidence that may create a
genuine issue of material fact . . . .” Beus, 151 Idaho at 239, 254 P.3d at 1235. Mere conclusory
allegations will not raise a genuine issue of material fact. See Valiant Idaho, 164 Idaho at 326,
429 P.3d at 867. Likewise, a “mere scintilla of evidence or only slight doubt as to the facts is not
sufficient to create a genuine issue of material fact for the purposes of summary judgment.” La
Bella Vita, LLC, 158 Idaho at 805, 353 P.3d at 426 (quoting Van v. Portneuf Med. Ctr., 147
Idaho 552, 556, 212 P.3d 982, 986 (2009)).
“Idaho law recognizes a cause of action for breach of an implied covenant
of good faith and fair dealing.” Jenkins v. Boise Cascade Corp., 141 Idaho 233, 242, 108 P.3d
380, 389 (2005). The implied covenant of good faith and fair dealing requires parties in a
contract “to perform, in good faith, the obligations required by their agreement, and a violation
of the covenant occurs when either party violates, nullifies or significantly impairs any benefit of
20
the contract.” Fox v. Mountain W. Elec., Inc., 137 Idaho 703, 710–11, 52 P.3d 848, 855–56
(2002). A party does not breach the covenant of good faith and fair dealing “by merely
exercising its express rights” under the contract in question. First Sec. Bank of Idaho, N.A. v.
Gaige, 115 Idaho 172, 176, 765 P.2d 683, 687 (1988). In addition, “[n]o covenant will be
implied which is contrary to the terms of the contract negotiated and executed by the parties.”
Idaho Power Co. v. Cogeneration, Inc., 134 Idaho 738, 750, 9 P.3d 1204, 1216 (2000); see also
Clement v. Farmers Ins. Exch., 115 Idaho 298, 300, 766 P.2d 768, 770 (1988) (explaining an
implied covenant of good faith and fair dealing cannot override an express provision in a
contract).
Gordon contends the following acts by the Lenders amounted to a breach of the covenant:
(1) encouraging her to stop paying her mortgage to apply for a modification; (2) not fairly or
reasonably considering her applications (i.e., inviting Gordon to participate in an illusory loan
modification process); (3) transferring her to a different loan servicer to start the modification
process over; (4) requiring her to resubmit documentation she had already submitted, (5)
employing dual tracking; (6) denying her modification “on the eve of foreclosures based on
falsely contrived grounds, as a strategy” to obtain the property; (7) blocking her from accessing
information about her loan, charges, and penalties; (8) making misstatements to Gordon, the
district court, and this Court; and (9) prolonging the entire process in order to compound her debt
with penalties and interest. Gordon’s numerous allegations will be dealt with in turn, each of
which fail to establish any genuine issue of material fact as far as the covenant of good faith and
fair dealing is concerned.
Gordon admits that the first act was allegedly committed by Chase, which is not a party
to this case. It is therefore clear this action could not amount to bad faith on the part of the
Lenders.
Second, the Lenders have provided evidence that they properly evaluated Gordon’s
accurately calculated income and determined that her income was not adequate to permit a
modification. Specifically, SPS wrote, “We are unable to offer you a modification because we
are unable to create an affordable payment equal to 31% of your reported monthly gross income
without changing the terms of your account beyond the requirements of the program.”
Accordingly, SPS fairly examined Gordon’s loss mitigation application; Gordon’s conclusory
21
allegations otherwise do not raise a genuine issue of material fact as to this issue. See Valiant
Idaho, LLC, 164 Idaho at 326, 429 P.3d at 867.
Gordon’s third allegation fails because the beneficiary’s right to transfer the loan to a new
servicer is explicitly authorized in the trust deed and a party cannot breach the implied covenant
by acting pursuant to the terms of the contract. First Sec. Bank of Idaho, N.A., 115 Idaho at 176,
765 P.2d at 687.
It is unclear how Gordon’s fourth allegation, that she was required to resubmit
documents, might have “violate[d], nullifie[d] or significantly impair[ed] any benefit of” hers
under the contract. Fox, 137 Idaho at 711, 52 P.3d at 856. Although it may have been
aggravating, this act does not rise to the level of a breach of the covenant.
Fifth, it has already been shown that the Lenders did not commit dual tracking; their
compliance with federal law does not amount to a breach of good faith.
Sixth, although SPS denied Gordon’s final loss mitigation application on December 7,
2016, a little over a month before the scheduled January 11, 2017, foreclosure sale, Gordon’s
application was incomplete, and Gordon has not shown otherwise. SPS was therefore entitled to
deny that application. Moreover, SPS had already denied her second loss mitigation application
on proper grounds on September 15, 2015, over a year prior to the January 11, 2017, foreclosure
sale. Accordingly, the Lenders were within their rights under the trust deed and the note to
foreclose on the property in the way that they did.
Seventh, Gordon only cites to conclusory allegations that the Lenders denied her access
to her accounts and loan information. This is not enough to avoid summary judgment on her
claim. Valiant Idaho, LLC, 164 Idaho at 326, 429 P.3d at 867.
Eighth, although SPS admittedly made an error in its initial review of the first loss
mitigation modification, the error was corrected when it analyzed Gordon’s second loss
mitigation application. After reviewing all of the correspondences from SPS to Gordon and her
attorney, no material misstatements by the Lenders have been identified. Instead, it appears that
Gordon thought her final but incomplete loss mitigation application should have prolonged
foreclosure, and, when it did not, she was caught off-guard. However, Gordon has not pointed
out any misstatements amounting to a breach of the covenant of good faith or fair dealing.
Finally, although the process leading up to the foreclosure was very lengthy, it appears
the Lenders acted in accordance with the trust deed, note, and the law. Gordon has not
22
demonstrated any specific violation of the trust deed or note amounting to improper fees or
penalties, nor has she pointed out any specific action by the Lenders that was prohibited by the
trust deed or note. In addition, most if not all of the delay is attributable to Gordon. She stopped
payment on her mortgage in 2012. The foreclosure sale did not occur until 2017. Over the years,
there were numerous tactics employed by Gordon that extended this process and effectively
allowed her to remain in the home for free. The record does not support Gordon’s contention that
the Lenders unduly delayed this process.
In the end, Gordon has not carried her burden of demonstrating a genuine issue of
material fact regarding any breach of the covenant. As a result, the district court properly
dismissed Gordon’s claim of a breach of the covenant of good faith and fair dealing.
D. The Lenders are entitled to attorney fees on appeal.
The Lenders request attorney fees on appeal based on Idaho Code sections 12-120(3), 12-
121, and the express terms of the note and trust deed. Attorney fees on appeal may be awarded to
the prevailing party when the parties contemplated such fees in the underlying contract. Zenner
v. Holcomb, 147 Idaho 444, 452, 210 P.3d 552, 560 (2009). “Such provisions are ordinarily to be
honored by the courts.” Id. (quoting Holmes v. Holmes, 125 Idaho 784, 787, 874 P.2d 595, 598
(Ct. App. 1994)).
Here, the trust deed and the note provide for an award of attorney fees to the Lenders on
appeal. The trust deed states, “Lender shall be entitled to collect all expenses incurred in
pursuing the remedies provided[,] . . . including, but not limited to, reasonable attorney
fees . . . .” The note reads, “If the Note Holder has required [Gordon] to pay immediately in full
as described above, the Note Holder will have the right to be paid back by [Gordon] for all of its
costs and expenses in enforcing this Note to the extent not prohibited by applicable law. Those
expenses include, for example, reasonable attorney fees.” SPS declared all sums owing and due
immediately in its notice of default, as required for an award of attorney fees under the note.
Accordingly, because the Lenders have prevailed on appeal, they are awarded their reasonable
attorney fees based on the terms of trust deed and the note. Zenner, 147 Idaho at 452, 210 P.3d at
560.
23
IV. CONCLUSION
For the foregoing reasons, the district court’s amended judgment dismissing Gordon’s
claims is affirmed. Attorney fees and costs on appeal are awarded to the Lenders.
Chief Justice BURDICK, Justices BEVAN, MOELLER and Justice Pro Tem TROUT
CONCUR.
24