                                No. 89-15
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1989



AVCO FINANCIAL SERVICES, formerly d/b/a
ITT FINANCIAL SERVICES,
                 Plaintiff and Respondent,
       -vs-
DEBORAH H. FOREMAN-DONOVAN,
                Defendant and Appellant.




APPEAL FROM:    District Court of the Thirteenth ~udicial~istrict,
                In and for the County of Yellowstone,
                The Honorable ~ i l l i a mJ. Speare, Judge presiding.

COUNSEL OF RECORD:
       For Appellant:
                Deborah H. Foreman-Donovan, pro se, Denver, Colorado

       For Respondent:
                 Fred E. Work, Jr.; Work Law Firm, Billings, Montana



                                   Submitted on ~riefs: ~ p r i l6, 1989
                                     Decided:   May 2, 1989
Mr. Chief Justice J. A. Turnage delivered the Opinion of the Court.
     Appellant Deborah H. Foreman-Donovan appeals a summary
judgment granted to Avco Financial Services (Avco) in the District
Court for the Thirteenth Judicial District, Yellowstone County.
We affirm.
     The issue is whether the District Court erred in granting
summary judgment for Avco.
     In November 1984, appellant and her husband executed a
promissory note to Avco for $2,977.94 plus finance charges of
$1,270.06. The note called for thirty-six monthly payments of $118
each and was secured by a purchase money security interest in
certain furniture along with a security interest in a Ford pickup
truck used in the husbandfs business.
     In April 1986, appellant was late in two payments on the note.
She went to Avcofs office and asked to add these payments to the
end of the contract as she claims she had been offered in the past.
Avcofs representative refused this request. He stated that either
the three payments then due must be made within twenty-four hours
or the security interest would be foreclosed. Appellant and her
husband chose a third option and executed a renewal note in the
amount of $2,411.02 plus finance charges of $1,296.98. This note
called for thirty-six monthly payments of $103 each. Appellant
claims that in late 1986 Avco again offered to and in fact did
defer a payment to the end of her contract. At that time she
stopped making payments on the second note.
     Avco filed suit to foreclose the security against appellant
and her husband in December 1986.      Default judgment was taken
against the husband in February 1987 and his appeal to this Court
was dismissed about one year later for failure to prosecute.
Appellant, a law school graduate appearing pro se, answered the
complaint. She alleged that the note was voidable at her option,
filing counterclaims alleging fraud and economic duress.       Avco
moved for summary judgment and the motion was granted based on the
briefs and affidavits filed.
      Did the District Court err in granting summary judgment for
Avco?
      Summary judgment is proper when there is no genuine issue as
to any material fact and the moving party is entitled to a judgment
as a matter of law. Rule 56(c), M.R.Civ.P. Appellant argues that
her counterclaims raise.materia1 issues of fact concerning Avco's
denial of her request to add the delinquent payments to the end of
the first contract. She contends that the statement that Avco
would not add delinquent payments to the end of the contract was
untrue in light of Avco's offers in prior and later months to do
just that. She also contends that her request was denied so as to
extract greater interest payments from her by getting her to sign
the renewal note. She asserts that these circumstances amount to
both fraud and economic duress, so that summary judgment is not
proper.
      Fraud is generally a question of fact. Section 28-2-404, MCA.
However, summary judgment on the issue of fraud is not precluded
where the opposing party has not made out an issue of material fact
for fraud. Sprunk v. First Bank Western M. Missoula (Mont. 1987),
741 P.2d 766, 44 St.Rep. 1429. The party alleging fraud must make
out a prima facie case on nine elements:
      1. a representation;
     2. its falsity;
     3. its materiality;
     4. the speaker's knowledge of its falsity or ignorance of its
truth;
     5.   the speaker's intent that it should be acted upon by the
person and in the manner reasonably contemplated;
     6. the hearer's ignorance of its falsity;
     7. the hearer's reliance upon its truth;
     8. the right of the hearer to rely upon it;
     9. the hearer's consequent and proximate injury or damage.
     In Gallatin Trust and Savings Bank v. Henke (1969), 154 Mont.
170, 461 P.2d 448, this Court pointed out that the mere making of
a promise which the promisor fails to keep is not actionable fraud.
Therefore, even taking the allegations in the light most favorable
to appellant, as we must in considering a summary judgment, the
withdrawal of the "promisew to add delinquent payments to the end
of the first contract does not amount to fraud.
     Further, appellant has not presented a prima facie case on
element number 8 above, 'thatshe had the right to rely upon Avco's
representation. A defrauded party has a right to rely on another's
representations when the parties are not on equal footing. Sprunk,
741 P.2d at 770. The evidence here does not disclose two parties
on unequal footing. Appellant was a law school graduate and was
working as a law clerk for a district judge at the time this action
arose. She was in as good a position as was the Avco representa-
tive to understand the parties' contractual rights and obligations.
     Finally, appellant has not presented a prima facie case as to
element number 9, consequent and proximate injury or damage. Avco
cannot by any stretch be held responsible for appellant's predica-
ment of being unable to make her payments on the original contract.
Also, under the circumstances as alleged by appellant, Avco cannot
be said to have induced her to take out a renewal note with it
rather than get money from some other source.
     Appellant's second claim of material issues of fact arises
from her counterclaim alleging economic duress. She cites cases
from Utah and Minnesota which she believes support her position.
However, these cases are not controlling.      There have been no
allegations that Avco threatened to do anything other than that
which it was contractually entitled to do in foreclosing the
original contract for default. To threaten only those actions
which one has a legal right to do under an existing contract does
not constitute duress. Pederson v. Thoeny (1930), 88 Mont. 569,
575, 295 P. 250, 252.      Further, Avco is not responsible for
appellant's inability to make payments on the original note or to
obtain money elsewhere.     "It is not duress where a party is
constrained to enter into a transaction   . . .  by force of cir-
cumstances for which the other party is not responsible." 25
Am.Jur.2d1 Duress and Undue Influence, section 3, p. 357.
     As the District Court stated, it was undisputed that from
December of 1986 to the time of the June 1988 summary judgment, no
payments were made on the second note. This clearly put appellant
in breach of the contract, entitling Avco to "declare the entire
unpaid balance of the note ...   immediately due and payable." We
conclude that the District Court did not err in ruling that
appellant failed to raise an issue of material fact precluding
summary judgment for Avco.
     We affirm the judgment of the District Court.




                                        Chief Justice
We concur:


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