DA 16-0191

IN THE SUPREME COURT OF THE STATE OF MONTANA

2016 MT 312N

ARLAN WIGGINS,

 Plaintiff and Appellant,

 v.

RESIDENTIAL CREDIT SOLUTIONS,

 Defendant and Appellee.

APPEAL FROM: District Court of the Twentieth Judicial District,

In and For the County of Lake, Cause No. DV-13-277

Honorable Deborah Kim Christopher, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Michael Klinkhammer, Klinkhammer Law Offices, Kalispell, Montana

For Appellee:

Erika R. Peterman, RCO Legal, P.S., Missoula, Montana

Submitted on Briefs: October 26, 2016

 Decided: November 29, 2016

Filed:

__________________________________________

Clerk

11/29/2016

Case Number: DA 16-0191
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Justice Michael E Wheat delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), 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 Arlan Wiggins (Wiggins) appeals from the order of the Twentieth Judicial District 

Court, Lake County, granting Residential Credit Solution’s (RCS) motion for summary 

judgement. We affirm. 

¶3 On July 10, 2007, Wiggins obtained a loan in the amount of $595,000 from 

Fairway Independent Mortgage Corporation (Fairway), executing a Note and Deed of 

Trust and encumbering the property currently known as 28302 Cougar Trail in Bigfork, 

Montana. On July 16, 2007, the Deed of Trust was recorded in Lake County, Montana, 

conveying the property to a trustee and naming Fairway as the lender and Mortgage 

Electronic Registration Systems, Inc. (MERS) as the sole nominee for Fairway and its 

successor and assigns. 

¶4 On December 19, 2008, MERS assigned the Deed of Trust to Amtrust Bank 

(Amtrust) and recorded the assignment in Lake County, Montana, on January 2, 2009. 

Wiggins had previously executed a Notice of Assignment, Sale or Transfers of Servicing 

Rights, acknowledging the transfer of his loan to Amtrust, on July 10, 2007. On April 

22, 2009, Wiggins, Amtrust, and MERS entered into a Loan Modification Agreement
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which amended and supplemented the Deed of Trust, and provided a new unpaid 

principal balance of $645,221 on the loan. On December 4, 2009, Amtrust was closed 

and the Federal Deposit Insurance Corporation (FDIC) was appointed as Receiver and 

charged with winding up Amtrust. On July 14, 2010, FDIC sent a letter to Wiggins, 

advising him that the servicing of the loan had been transferred to RCS and that Wiggins 

should begin making payments to RCS after August 1, 2010. On July 23, 2010, RCS also 

sent a letter to Wiggins, informing him that RCS would be servicing his loan. 

¶5 Wiggins subsequently filed for Chapter 13 bankruptcy and the U.S. Bankruptcy 

Court for the District of Montana approved a Stipulation and Agreement (Stipulation) on 

November 7, 2011. In the Stipulation, Wiggins acknowledged that he was in default in 

the amount of $7,984.43 under the loan obligation due RCS and agreed, among other 

things, that he would cure the arrearages for post-petition fees and costs and make regular 

monthly payments to RCS. The Stipulation also provided that, upon default, RCS was 

immediately entitled to seek foreclosure and liquidate the property. Wiggins failed to 

comply with the terms of the Stipulation and, on April 5, 2012, RCS filed a notice of 

non-compliance with the Bankruptcy Court, advising Wiggins that RCS was proceeding 

with a foreclosure action.

¶6 In April of 2012, the loan was referred to Northwest Trustee Services, 

Incorporated (Northwest), an agent of First American Title Insurance Company (First 

American). Northwest initially scheduled a trustee sale for October 30, 2012, but

cancelled the sale due to its failure to give proper notice of the sale. Northwest then 

discovered an error in the chain of title, specifically in the assignment, which listed 
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MERS as nominee for John Adams Mortgage Company (instead of Fairway) and 

assigned the Deed of Trust to Amtrust. Northwest corrected the error by filing and 

recording a new Assignment of Deed of Trust on February 26, 2013. RCS then filed an 

Appointment of Successor Trustee on April 1, 2013, appointing First American as 

successor trustee under the trust deed. 

¶7 Northwest sent Wiggins a Notice of Trustee’s Sale, scheduling a new trustee sale 

for September 5, 2013. The notice was sent to several addresses, including the property’s 

current address of 28302 Cougar Trail in Bigfork, Montana. The notice was also posted 

at the property address and published for three consecutive weeks in a local newspaper. 

The trustee sale was held on September 6, 2013. RCS was the highest bidder at the sale 

with a credit bid of $600,000. The Trustee’s Deed was recorded on September 12, 2013.

¶8 On November 1, 2013, Wiggins filed an Interim Motion to Set Aside Trust Sale 

and, after failing to properly serve RCS, filed a complaint on January 7, 2014, asking the 

court to move forward with his motion. The court granted Wiggins’ motion on February 

21, 2014, basing its order on RCS’s failure to answer Wiggins’ complaint. On August 1, 

2014, the court vacated the order after discovering numerous procedural deficiencies 

related to Wiggins’ motion and complaint. On December 12, 2014, Wiggins filed an 

amended complaint, but again failed to properly serve RCS. After RCS became aware of 

the amended complaint and filed its answer, Wiggins filed, and the court denied, his

Motion for Entry of Default. 

¶9 On September 21, 2015, RCS filed a Motion for Summary Judgment, arguing that: 

1) RCS was the holder of the Note and recorded beneficiary of the Deed of Trust; 
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2) Wiggins received proper notice of the foreclosure sale; and 3) Wiggins was given the 

opportunity, but failed, to cure the default and remain in possession of the property 

pursuant to § 71-1-312, MCA. On October 9, 2015, Wiggins filed an Answer to 

Summary Judgment, contending that RCS had no standing to foreclose on the property 

because the loan documentation had been procured by fraud. On November 12, 2015, the 

District Court granted RCS’s Motion for Summary Judgment, finding that Wiggins had 

not presented a single genuine issue of material fact. The court based its rationale on the 

undisputed fact that Wiggins had failed to make payments on the loan or cure the default. 

The court acknowledged, but did not find material, both Wiggins’ belief that the 

documents “have or should have different numbers,” and the fact that the title contained 

mistakes which were corrected in order to clear the title. 

¶10 On November 18, 2015, Wiggins filed a Motion to Set Aside Summary Judgment, 

arguing that the redaction of loan numbers by RCS’s law firm constituted fraud. He also 

accused RCS of forgery, falsification, and other criminal activity. RCS responded to 

Wiggins’ accusations with an affidavit of the firm’s paralegal, stating that the redactions 

were made in order to comply with federal law.1 The District Court denied Wiggins’ 

motion and entered its final judgment in favor of RCS on February 11, 2016. Wiggins

filed a timely appeal.

 

1 The Gramm-Leach-Bliley Act, 15 USC § 6801 (2012), requires financial institutions to 

protect the security and confidentiality of their customer’s nonpublic personal information. 

Federal regulations interpreting the statute state that “[n]onpublic personal information includes 

any list of individuals’ names and street addresses that is derived in whole or in part using 

personally identifiable financial information (that is not publicly available), such as account 

numbers.” 16 C.F.R. 313.3(n)(3)(i) (2000).
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¶11 We review a district court’s grant of summary judgment de novo, applying the 

same criteria of M. R. Civ. P. 56 as the district court. Pilgeram v. GreenPoint Mortg. 

Funding, Inc., 2013 MT 354, ¶ 9, 373 Mont. 1, 313 P.3d 839. We review a district 

court’s conclusions of law to determine whether they are correct and its findings of fact 

to determine whether they are clearly erroneous. Pilgeram, ¶ 9. Under Rule 56(c), 

summary judgment will be granted if the moving party can show there is no genuine

issue as to any material fact and the moving party is entitled to a judgment as a matter of 

law. Roe v. City of Missoula, 2009 MT 417, ¶ 14, 354 Mont. 1, 221 P.3d 1200.

¶12 Wiggins appeals the District Court’s ruling in favor of RCS as it applies to his 

claims that the RCS loan documents are fraudulent. He also argues for the first time on 

appeal that redactions made to the loan documents rendered them inadmissible under 

M. R. Evid. 902(8). It is undisputed that Wiggins received a loan for a house and 

subsequently failed to make payments on the loan. Indeed, in his amended complaint, 

Wiggins stated that he “owes someone on my mortgage, but it’s not RCS.” We note that 

this statement is inconsistent with the bankruptcy Stipulation, wherein Wiggins

specifically acknowledged RCS as his creditor and agreed to make regular monthly 

payments to RCS. Nonetheless, Wiggins claims that RCS had no legal right to foreclose 

on the property because the loan documents do not properly reflect to whom he owes 

money. The District Court determined that the steps RCS took to comply with federal 

law and correct the title after Wiggins failed to meet his loan obligation did not create a 

genuine issue of material fact. We agree.
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¶13 Addressing Wiggins’ claim that RCS committed fraud when it redacted loan 

numbers and corrected the chain of title by filing and recording a new Assignment of 

Deed of Trust, we conclude that the District Court was not required to address the fraud 

allegation because Wiggins did not plead fraud in his original or amended complaint. 

Under M. R. Civ. P. 9(b), a party alleging fraud must plead the circumstances 

constituting fraud with particularity. Fossen v. Fossen, 2013 MT 299, ¶ 9, 372 Mont. 

175, 311 P.3d 743. To sustain a fraud claim, one must plead and prove the following 

nine elements of fraud:

(1) a representation; (2) falsity of the representation; (3) materiality of the 

representation; (4) speaker’s knowledge of the falsity of the representation,

or ignorance of its truth; (5) speaker’s intent that it should be relied upon; 

(6) the hearer’s ignorance of the falsity of the representation; (7) the 

hearer’s reliance on the representation; (8) the hearer’s right to rely on the 

representation; and (9) consequent and proximate injury was caused by 

reliance on the representation.

Fossen, ¶ 9 (quoting Krone v. McCann, 197 Mont. 380, 387, 642 P.2d 584, 587-88 

(1982)). A pleading is sufficient when it “gives adequate notice to an adverse party 

enabling it to prepare a responsive pleading.” Fossen, ¶ 9.

¶14 In this case, Wiggins did not plead fraud with sufficient particularity to give RCS 

adequate notice of his claim. In his amended complaint, Wiggins simply claimed that the 

“assignments of deed of trust were fabricated” such that he could not sell the home 

because “a clean chain of title was taken from me.” However, such bare assertions are 

insufficient for us to conclude that he has alleged the facts and circumstances constituting 

fraud with particularity. His allegations are too indefinite and stated so generally that we 

cannot determine which acts comprise the nine elements of fraud. While a court may 
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give pro se litigants a certain amount of latitude with respect to procedural oversights, 

“that latitude cannot be so wide as to prejudice the other party, and it is reasonable to 

expect all litigants, including those acting pro se, to adhere to procedural rules.” Sun 

Mountain Sports, Inc. v. Gore, 2004 MT 56, ¶ 28, 320 Mont. 196, 85 P.3d 1286 (quoting 

Greenup v. Russell, 2000 MT 154, ¶ 15, 300 Mont. 136, 3 P.3d 124). It is the plaintiff’s 

burden to plead a cause of action adequately and Wiggins did not do so in this case. 

Jones v. Mont. Univ. Sys., 2007 MT 82, ¶ 42, 337 Mont. 1, 155 P.3d 1247. As such, we 

conclude that the District Court did not err in granting summary judgment to RCS.

¶15 Additionally, for the first time on appeal, Wiggins attempts to argue that the 

District Court erred in relying on redacted loan documents because the documents do not 

qualify as self-authenticating evidence under M. R. Evid. 902(8). However, “[i]t is well 

established that this Court will not review an issue that was not raised in the district 

court.” Paulson v. Flathead Conservation Dist., 2004 MT 136, ¶ 37, 321 Mont. 364, 91 

P.3d 569. Accordingly, we decline to address the merits of Wiggins’ evidentiary 

argument on appeal. 

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

our Internal Operating Rules, which provides for memorandum opinions. In the opinion 

of the Court, the case presents a question controlled by settled law or by the clear 

application of applicable standards of review. The District Court’s findings of fact were 

not clearly erroneous and its interpretation and application of the law was correct. 

¶17 Affirmed.
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/S/ MICHAEL E WHEAT

We Concur: 

/S/ MIKE McGRATH

/S/ LAURIE McKINNON

/S/ BETH BAKER

/S/ JIM RICE