                                                                                           August 19 2014


                                            DA 13-0838

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2014 MT 229N



JOHN JENKINS and CANDACE JENKINS,

              Plaintiffs and Appellants,

         v.

U.S. BANK NATIONAL ASSOCIATION TRUSTEE,
UNDER POOLING AND SERVICING
AGREEMENT DATED AS OF SEPTEMBER 1, 2005,
WACHOVIA MORTGAGE LOAN ASSET BACKED
CERTIFICATES, SERIES WMC-1, and DOES 1-50
INCLUSIVE,

              Defendants and Appellees.



APPEAL FROM:            District Court of the Fourth Judicial District,
                        In and For the County of Missoula, Cause No. DV 11-1418
                        Honorable John W. Larson, Presiding Judge


COUNSEL OF RECORD:

                For Appellants:

                        John Jenkins and Candace Jenkins, self-represented, Missoula, Montana

                For Appellees:

                        Mark C. Sherer, Mackoff Kellogg Law Firm, Dickinson, North Dakota


                                                    Submitted on Briefs: July 30, 2014
                                                               Decided: August 19, 2014


Filed:

                        __________________________________________
                                          Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     John Jenkins and Candace Jenkins, husband and wife, appeal from the order of the

Fourth Judicial District Court, Missoula County, denying their motions to vacate the

court’s earlier summary judgment ruling. We affirm.

¶3     The Jenkins executed a promissory note in the amount of $178,000.00. They also

executed a deed of trust to secure repayment of the note, which identified WMC

Mortgage Corp. as the lender and Mortgage Electronic Registration Systems, Inc., as the

beneficiary. At closing, the Jenkins executed a notice which stated that the lender would

not be withholding monies for property taxes and hazard insurance and that the Jenkins

would be responsible for the payment of these expenses.

¶4     John Jenkins was deployed in the Army Reserve and remained on active status

from March 2009 to August 2010. Pursuant to the Servicemembers Civil Relief Act

(50 U.S.C. App. §§ 501-515, 516-597b), the interest rate on the Jenkins’ loan was

reduced from 6.625 percent to 6.000 percent during John’s deployment, and continuing

through June 9, 2011. As a result, the Jenkins’ monthly payment of principal and interest

was reduced from $1,058.00 to $970.54.




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¶5     Meanwhile, on August 10, 2009, HomEq Servicing (the loan servicer at the time)

notified the Jenkins that their property taxes were delinquent and gave them 30 days to

cure the deficiency. On November 4, 2009, HomEq notified the Jenkins that it had paid

the delinquent taxes and that an escrow account would be set up. The Jenkins were given

the opportunity either to pay off the escrow balance in a lump sum of $5,154.46 or to

have their monthly payments increased from $970.54 to $1,457.03 until the escrow

balance was paid. On August 11, 2010, HomEq notified the Jenkins that it no longer

would be the servicer of their loan. On September 13, 2010, Ocwen Loan Servicing,

LLC (the new servicer) advised the Jenkins of the unpaid balance on the loan, including

principal, accrued interest, escrow advances, and the balance of the suspense fund.

¶6     On March 5, 2011, the Jenkins sent Ocwen a check in the amount of $1,100.00.

Ocwen returned the check to the Jenkins. On June 13, 2011, the Jenkins attempted to

make a payment in the amount of $1,500.00, but this payment was returned as well. On

June 22, 2011, Mortgage Electronic Registration Systems executed an assignment which

transferred the deed of trust to defendant U.S. Bank National Association as trustee. On

August 3, 2011, a notice of trustee’s sale was recorded in the Missoula County Clerk and

Recorder’s office. The notice stated that the Jenkins had defaulted on the terms of the

note and deed of trust by failing to make the monthly payments that came due beginning

March 1, 2011.

¶7     On November 3, 2011, the Jenkins filed a complaint in the District Court asserting

that the foreclosure is erroneous and seeking injunctive relief to stop the trustee’s sale.

The Jenkins alleged that their March 2011 payment of $1,100.00 should have been


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accepted and that U.S. Bank had no authority to pay the 2009 real estate taxes and the

escrow set-up fee that was imposed. Additionally, the Jenkins argued that U.S. Bank had

unlawfully increased their mortgage payment while John Jenkins was on active duty.

¶8    On July 25, 2012, WMC Mortgage executed an allonge endorsing the promissory

note to U.S. Bank. On April 30, 2013, after examining the original promissory note, the

District Court granted U.S. Bank’s motion for summary judgment and dismissed the

Jenkins’ complaint with prejudice. The court determined: that U.S. Bank is the holder of

the note; that the Jenkins’ monthly principal and interest payments were appropriately

reduced pursuant to the Servicemembers Civil Relief Act; and that U.S. Bank was

authorized, by the deed of trust and the Jenkins’ failure to pay the property taxes, to set

up an escrow account to recoup the delinquent taxes. The court entered judgment on

May 20, 2013, and U.S. Bank filed notice of entry of judgment on June 6, 2013.

¶9    The Jenkins filed a motion on September 9, 2013, followed by an amended motion

on October 8, 2013, asking the District Court to vacate summary judgment. They argued

that there are genuine issues of material fact and that the case should proceed to trial.

U.S. Bank responded that the Jenkins’ motion was untimely and that their argument

regarding the existence of disputed facts was incorrect. The District Court determined

that the Jenkins’ right to appeal the court’s May 20, 2013 judgment is time-barred under

M. R. App. P. 4(5)(a)(i). The court further determined that, if the Jenkins’ motions were

treated as motions to alter or amend the judgment, the motions were untimely under

M. R. Civ. P. 59(e). Finally, the court determined that, if the Jenkins’ motions were

treated as motions for relief from judgment under M. R. Civ. P. 60(b), the motions failed


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to meet any of the grounds for relief under this rule. The District Court accordingly

denied the motions on November 14, 2013. U.S. Bank filed notice of entry of order on

November 20, 2013. On December 13, 2013, the Jenkins filed with the Clerk of this

Court their notice of appeal from the District Court’s November 14, 2013 order.

¶10    On appeal, the Jenkins argue that the District Court should not have denied their

motions to vacate summary judgment. In response, U.S. Bank contends that the motions,

in substance, were merely claims that the District Court had mistakenly ruled against the

Jenkins and an effort to reinstate the lawsuit. U.S. Bank maintains that the District Court

did not abuse its discretion in denying the motions given that they were untimely and that

the Jenkins failed to establish a factual or legal basis for relief under M. R. Civ. P. 59(e)

or 60(b).

¶11    We have determined to decide this case pursuant to Section I, Paragraph 3(d) of

our Internal Operating Rules, which provides for noncitable memorandum opinions. A

district court has discretion to grant or deny relief under M. R. Civ. P. 59(e) and 60(b).

JAS, Inc. v. Eisele, 2014 MT 77, ¶ 19, 374 Mont. 312, 321 P.3d 113; In re Marriage of

Anderson, 2013 MT 238, ¶ 13, 371 Mont. 321, 307 P.3d 313.               The District Court

determined that the Jenkins’ motions to vacate were untimely under Rule 59(e) and that

they failed to establish a sufficient basis for granting relief from the court’s judgment

under Rule 60(b). The Jenkins have failed to demonstrate on appeal that the District

Court abused its discretion.




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¶12   Affirmed.



                              /S/ LAURIE McKINNON

We Concur:

/S/ JAMES JEREMIAH SHEA
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ JIM RICE




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