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, 

-vsDEBORAH H. FOREMAN-DONOVAN, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth ~udicial ~istrict, 

In and for the County of Yellowstone, 

The Honorable ~illiam J. 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: ~pril 6, 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, 'that she 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 representative 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 predicament 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 circumstances 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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