97-384




                                                                        No. 97-384

                                         IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                                       1998 MT            65N



                                                    ROCKY MOUNTAIN BANK, f/k/a,
                                                        FIRST STATE BANK, STEVENSVILLE,

                                                                 Plaintiff and Respondent,

                                                                                    v.

                                                                                  MARK O. BARTEAUX and
                                                                                   KAREN L. BARTEAUX,

                                                                Defendants and Appellants.




         APPEAL FROM:                    District Court of the Twenty-First Judicial District,
                                                    In and for the County of Ravalli,
                                           The Honorable Jeffrey H. Langton, Judge presiding.


                                                              COUNSEL OF RECORD:

                                                                           For Appellants:

                                     Mark O. and Karen L. Barteaux, Stevensville, Montana (pro
                                                         se)

                                                                           For Respondent:

                                          Lawrence F. Daly, Lucy T. France, Garlington, Lohn &
                                                       Robinson, Missoula,Montana

                                                                         Submitted on Briefs: November 13, 1997

                                                                          Decided: March 24, 1998
                                                                          Filed:


                                                    __________________________________________
                                                                       Clerk

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              Justice William E. Hunt, Sr., delivered the Opinion of the Court.

      ¶1   Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996
   Operating Rules, the following decision shall not be cited as precedent but
   shall be filed as a public document with the Clerk of the Supreme Court and
 shall be reported by case title, Supreme Court cause number, and result to the
    State Reporter Publishing Company and to West Group in the quarterly table
                        of noncitable cases by this Court.

¶2   Mark and Karen Barteaux (Appellants) appeal the summary judgment
entered by the Twenty-First Judicial District Court, Ravalli County, holding
that Appellants were in default of a loan from Rocky Mountain Bank (Bank),
and that the Bank had legal right to repossess the collateral that secured the
loan. We affirm.

¶3   The following facts are undisputed. On August 11, 1993, the Bank
loaned Appellants $6583.50. To secure the loan, Appellants granted the Bank
a security interest in their backhoe. A year later, Appellants missed their
September, October, and November 1994 loan payments. On November 22,
1994, the Bank sent Appellants notices of default and legal action if
Appellants failed to bring the note current within ten days. Appellants failed
to bring the note current within ten days, and the Bank initiated repossession
of the backhoe. After several failed attempts by the Bank to contact
Appellants, the Bank decided to forego repossession and instead file a
complaint for claim and delivery in District Court. Meanwhile, on December
19, 1994, Appellants finally called the Bank and negotiated an extension of
time, until December 23, 1994, in which to bring the note current. At this
time, Appellants were behind four loan payments because they failed to make
the December payment.


¶4   On December 20, 1994, an officer of the Bank witnessed Appellants'
backhoe being moved south of Stevensville on Highway 93. The Bank later
learned that the backhoe was located on property believed to be owned by Mr.
Barteaux's mother. On December 21, 1994, in response to Appellants'
actions, the Bank filed a complaint for claim and delivery of the backhoe,
pursuant to § 27-17-201, MCA, and a motion for an ex parte order to allow the
Bank to immediately repossess the backhoe without notice and a hearing,
pursuant to § 27-17-203(2), MCA. In support of its motion for an ex parte
order, the Bank argued that the delay caused by notice and a hearing would
seriously impair the Bank's remedy of repossession. The Bank stated that
Appellants had already violated the security interest once by moving the
backhoe without the Bank's permission, and could do so again. The Bank
stated its belief that Appellants were attempting to conceal the backhoe and
prevent repossession. The court granted the Bank's motion.

¶5        On December 22, 1994, the Bank repossessed the backhoe.                                                  On


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December 23, 1994, Appellants paid three out of four delinquent payments,
and the Bank accepted the payments. Appellants subsequently missed their
January payment and now had two payments past due. On January 13, 1995,
the Bank sent a letter to Appellants requesting them to keep the loan under
thirty days past due, and informing them that if the note was not brought
current by January 23, 1995, the Bank would sell the collateral. Appellants
failed to bring the note current by the requested date.

¶6   On January 25, 1995, the Bank called the full amount of the loan due
and advised Appellants of their right to redeem the collateral. On January 26,
1995, Appellants made their December payment. On January 27, 1995, the
Bank returned Appellants' check accompanied by a letter stating that the Bank
would not accept the payment because the full amount of the loan had been
called due. The Bank also informed Appellants that they had until February
6, 1995, to redeem the collateral. Appellants failed to redeem the collateral
and the Bank sold the backhoe on March 3, 1995.

¶7   Appellants argue that summary judgment was improper in this case
because there exist material issues of fact concerning several affirmative
defenses including fraud, estoppel, and waiver. The thrust of Appellants'
defenses is that because the Bank agreed to allow Appellants to make their
delinquent payments by December 23, 1994, it was wrong for the Bank to
initiate repossession before that date. Also, Appellants argue that the Bank
established "a history of routinely accepting late payments" and, in so doing,
waived its right to enforce the terms of the security agreement. We disagree
with both of Appellants' arguments.

¶8   The express terms of the security agreement provide that the Bank shall
have the right to repossess the backhoe in the event of default. The security
agreement further provides the following waiver clause:
     Lender shall not be deemed to have waived any rights under this
     Agreement unless such waiver is given in writing and signed by
     Lender. No delay or omission on the part of Lender in
     exercising any right shall operate as a waiver of such right or
     any right.

¶9   Appellants admit they defaulted on their loan. Thus, the Bank had the
right to repossess the collateral. The Bank's later conduct, extending the time
in which to make payments and accepting late payments, does not constitute
a waiver of the Bank's right to repossess the collateral because the Bank never
signed a written waiver. Even from an equity standpoint, Appellants cannot
complain about the Bank repossessing the collateral before the period of
extension had expired. The Bank was simply responding to Appellants' first
act of moving the collateral in violation of the security agreement. Appellants
admit that they moved the collateral in violation of the security agreement. It
is a maxim of jurisprudence that "no one can take advantage of his own
wrong." Section 1-3-208, MCA. A party who breaches a contract cannot take
advantage of his own act or omission to escape liability thereon.   Maddux v.
Bunch (1990), 241 Mont. 61, 66, 784 P.2d 936, 940.

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¶10 We hold that no material issues of fact exist and that summary
judgment was proper in this case. The judgment of the District Court is
affirmed.

                                                             /S/       WILLIAM E. HUNT, SR.

We Concur:

/S/       J. A. TURNAGE
/S/       JAMES C. NELSON
/S/       TERRY N. TRIEWEILER
/S/       W. WILLIAM LEAPHART




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