No. 90-078 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

19 9 0 

FIRST SECURITY BANK OF BOZEMAN, 

Plaintiff and Respondent, 

MILTON E. JONES and HELEN 

C. JONES; and AMERICAN LAND 

TITLE COMPANY, 

Defendants and Appellants. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Larry W. Moran, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Thomas E. Smith, Scot Schermerhorn, Moulton, 

Bellingham, Longo & Mather, P.C., Billings, Montana 

For Respondent: 

Calvin L. Braaksma, Landoe, Brown, Planalp & 

Kommers, P.C., Bozeman, MT 59715 

Filed: 

Submitted on Briefs: May 16, 1990 

Decided: June 26, 1990 
Justice John Conway Harrison delivered the Opinion of the Court. 

District Judge Larry Moran of the Eighteenth Judicial 

District, Gallatin County, granted summary judgment to plaintiff 

First Security Bank of Bozeman in its effort to foreclose on five 

deeds of trust delivered by defendants Milton E. and Helen C. Jones 

for a promissory note. We affirm the summary judgment. 

The issue which we will review is whether the District Court 

erred in ruling that First Security Bank could judicially foreclose 

upon five deeds of trust in two counties, by filing separate 

actions in each of the counties, wherein the Bank sought a single 

judgment and a single, integrated foreclosure proceeding? 

The facts relevant to this appeal are simple and undisputed. 

On May 24, 1988, Milton and Helen Jones (Joneses) , husband and 

wife, executed a promissory note to First Security Bank (Bank) in 

the amount of $132,026.26. As collateral for the obligation the 

Joneses pledged five deeds of trust covering five parcels of real 

property, four parcels located in Gallatin County and one in 

Flathead County. 

The Joneses subsequently defaulted on the promissory note. 

The Bank proceeded to foreclose upon the deeds of trust as 

mortgages, filing actions in both Gallatin and Flathead counties. 

The complaint filed in Gallatin County sought collection of the 

promissory note and foreclosure of the four deeds of trust covering 

the four Gallatin properties. Likewise, the complaint filed in 

Flathead County sought collection on the same promissory note and 

foreclosure of the deed of trust covering the Flathead real 
property. The two complaints reference to and incorporate each 

other and allege default of the same promissory note, but clearly 

set forth that the Bank seeks a single recovery with integrated and 

coordinated foreclosures and, thereafter, a single deficiency 

judgment . 

The Joneses answered, specifically setting forth as 

affirmative defenses that (1) the Bank violated § 71-1-222, MCA, 

which requires but one action for recovery of a debt or enforcement 

of a right secured by a real estate mortgage; and (2) the Bank was 

barred from collecting upon the debt or obtaining a deficiency 

judgment, or both, by virtue of the doctrines of the one-action 

rule, waiver and estoppel. 

The Bank filed a motion for summary judgment in the Gallatin 

County action. The Joneses then moved the court to deny the Bank's 

motion for summary judgment and to enter summary judgment on their 

behalf prohibiting the Bank from obtaining any deficiency judgment 

against them. 

The District Court subsequently issued its Memorandum and 

Judgment which granted the Bank's motion for summary judgment. The 

Joneses now appeal from the summary judgment. 

Summary judgment is appropriately granted where no genuine 

issue of material fact exists and the moving party is entitled to 

judgment as a matter of law. Rule 56 (c) , M.R.Civ. P. The party 

seeking summary judgment has the burden of demonstrating absence 

of genuine factual issues. OIBagy v. First Interstate Bank (Mont. 

1990), 785 P.2d 190, 191, 47 St.Rep. 69, 71. The burden then 
shifts to the non-moving party who must show the existence of a 

genuine issue in order to prevail. a. To meet this burden, the 

non-moving party must proffer substantial evidence, not mere 

speculation and conclusory statements. Hando v. PPG Industries, 

Inc. (1989), 236 Mont. 493, 500, 771 P.2d 956, 959; Benson v. Pyfer 

(Mont. 1989), 783 P.2d 923, 925, 46 St.Rep. 2033, 2035. 

In the case at bar it has been shown that no genuine issue of 

material fact exists. The agreed upon facts establish that the 

Joneses executed the promissory note and deeds of trust which are 

the subject of this action, delivered them to the Bank, and then 

failed to make payment as required in the note. 

Appellants argue that the Bank violated 9 71-1-222, MCA, 

Montana's none action rule,I1 by filing simultaneous actions in the 

two counties where the real property pledged as security on the 

note is located. In pertinent part, the statute reads: 

(1) There is but one action for the recovery 

of debt or the enforcement of any right 

secured by mortgage upon real estate, which 

action must be in accordance with the 

provisions of this part. . . 

Section 71-1-222(1), MCA. 

The purpose of the one-action rule I1[i]s to compel one who has 

taken a special lien to secure his debt to exhaust his security 

before having recourse to the general assets of the debtor.'' Barth 

v. Ely (1929), 85 Mont. 310, 320, 278 P. 1002, 1006 (quoting Merced 

Bank v. Casaccia (Cal. 1894), 37 P. 648). Also, the rule is 

intended to shield a mortgagor from multiple lawsuits where two 

separate actions, while theoretically distinct, are so closely 
connected that the two can and should be decided in one suit. 

Stallings v. Erwin (1966);148 Mont. 227, 233, 419 P.2d 480, 483. 

See also Dietrich, The Montana Judicial and Non-Judicial 

Foreclosure Sale: Analysis and Suqqestions for Reform, 49 M0nt.L. 

Rev. 285, 298 (1988). 

The Bank did not intend to defeat the purpose of the oneaction rule by filing complaints in both Gallatin and Flathead 

counties. The Bank filed simultaneous foreclosure proceedings in 

an attempt to comply with 5 25-2-123, MCA, which states that: 

(1) The proper place of trial for the 

following actions is the county in which the 

subject of the action or some part thereof is 

situated : 

(d) for the foreclosure of all liens and 

mortgages on real property. 

Section 25-2-123(1), MCA. 

Each complaint references and incorporates the other. The two 

complaints seek a single recovery, a single, integrated, 

coordinated foreclosure, and a single deficiency judgment 

thereafter. In no way did the Bank endeavor to circumvent the oneaction rule. 

We affirm the judgment of the District Court and concur with 

its Memorandum wherein it noted: 

The [Gallatin and Flathead] actions are 

not sequential actions, and it is sequential 

actions that are.usually at issue when the one 

action rule is raised. Nor is there any 

effort to keep one or the other Court in the 

dark regarding the simultaneous action for 

foreclosure and deficiency judgment. 
The Court concludes that Plaintiff's 

Complaints, though filed in two counties are, 

because of the language of the Complaints, one 

action, and Plaintiff is acting entirely 

within the stated purpose of the one action 

rule. The remedy being pursued is a 

foreclosure action and includes a deficiency 

claim in the same proceeding. The mortgagor 

is, essentially, being protected against a 

multiplicity of actions. 

This case is a proper one for summary 

judgment, there being no genuine dispute over 

material fact. 

The District Court is affirmed.