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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 38647

GMAC,

Plaintiff-Respondent,

v.

CINDY LEE BACH (DECEASED), an 

individual, and JOHN NICHOLAS BACH, 

an individual,

Defendant-Appellant.

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2011 Unpublished Opinion No. 707

Filed: November 17, 2011

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED 

OPINION AND SHALL NOT 

BE CITED AS AUTHORITY

Appeal from the District Court of the Seventh Judicial District, State of Idaho, 

Teton County. Hon. Gregory W. Moeller, District Judge. 

Summary judgment in favor of creditor in claim and delivery action, affirmed.

John Nicholas Bach, Driggs, pro se appellant. 

Ringert Law, Chtd.; Laura E. Burri, Boise, for respondent. 

________________________________________________

WALTERS, Judge Pro Tem

This is an appeal from a summary judgment granted by the district court to the creditor, 

GMAC, in an action to obtain possession of a vehicle following default of the purchase price by 

the purchaser, Cindy Lee Bach. We affirm.

I.

STANDARD OF REVIEW

When reviewing a motion for summary judgment, this Court uses the same standard 

employed by the trial court when deciding such a motion. Stoddart v. Pocatello Sch. Dist. 

No. 25, 149 Idaho 679, 683, 239 P.3d 784, 788 (2010); Kolln v. Saint Luke’s Reg’l Med. Ctr.,

130 Idaho 323, 327, 940 P.2d 1142, 1146 (1997). Summary judgment is proper “if the 

pleadings, depositions, and admissions on file, together with the affidavits, if any, show that 

there is no genuine issue as to any material fact and that the moving party is entitled to a 

judgment as a matter of law.” Idaho Rule of Civil Procedure 56(c). Disputed facts should be 
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construed in favor of the non-moving party, and all reasonable inferences that can be drawn from 

the record are to be drawn in favor of the non-moving party. The appellate court exercises free 

review over questions of law. Vavold v. State, 148 Idaho 44, 45, 218 P.3d 388, 389 (2009). 

II.

BACKGROUND

The following facts and reasonable inferences therefrom appear from the pleadings in this 

case. Cindy Lee Bach purchased a 2007 Chevrolet Equinox from Ressler Motor Company of 

Bozeman, Montana, on January 6, 2007, for $24,047, payable at the rate of $498 in sixty 

monthly installments. GMAC provided the financing. A lien on the vehicle was recorded in 

Idaho on January 17, 2007, showing GMAC as the lienholder. The monthly payments were 

made until November 2008. Cindy Lee Bach passed away and a “Decree of Summary 

Administration” was entered in the magistrate division of the district court for Teton County, 

Idaho, on December 1, 2008. The decree distributed the vehicle to John Bach, surviving spouse 

of Cindy Lee Bach. The decree further provided that John Bach assume and be responsible for 

all indebtedness which might be a claim against the Estate of Cindy Lee Bach.

In April 2009, GMAC filed this action for possession of the vehicle, under Title 8, 

Chapter 3 of the Idaho Code, seeking an order to have the vehicle sold in a commercially 

reasonable manner in accordance with Article 9, Chapter 5 of the Idaho Uniform Commercial 

Code. By verified complaint, GMAC alleged that the financed payments for the vehicle had not 

been made since December 2008, and that John Bach was in possession of the vehicle which was 

located in Teton County, Idaho, but he refused to make the payments. Bach filed responsive 

motions challenging service of process and raising jurisdiction questions. After a hearing, the 

district court denied Bach’s motions on the grounds that service of process was proper and that 

the district court had both in rem and in personam jurisdiction. Bach filed an answer and 

asserted a counterclaim. GMAC filed a motion for summary judgment and for dismissal of 

Bach’s counterclaim. The district granted both requests after a hearing. Bach filed a motion for 

reconsideration, which the district court denied after a hearing, issuing an amended decision 

again granting the summary judgment and dismissing the counterclaim. A final judgment was 

entered providing for the issuance of a writ of possession. Bach has appealed from the final 

judgment entered by the district court.
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III.

ISSUES

Bach states four issues in his opening brief. None of the issues address whether there is 

any genuine issue of material fact that would preclude the entry of a summary judgment.1 As 

worded by Bach, the issues on appeal are: 

(1) Was there any contract or agreement forum clause that required 

jurisdiction and venue to be in Montana? 

(2) Was plaintiff’s complaint for claim and delivery properly verified to be 

used for purposes of summary judgment? 

(3) Was the district court judge authorized by summary judgment rules to 

personally and without notice and a properly held due process hearing, to give his 

hearsay expert testimony which he used and applied in granting summary 

judgment? 

(4) Did GMAC, mislead, abuse the processes of the district court and fail 

to state a cause of action requiring the district court to grant appellant a favorable 

judgment on the pleadings? 

In its responsive brief, GMAC has requested an award for its attorney fees on appeal 

pursuant to a provision in the financing contract and also pursuant to Idaho Code §§ 12-120(1), 

12-120(3), and 12-121.

IV.

DISCUSSION

A. Forum Question

After he was served with the complaint in this case, Bach asserted several challenges to 

the district court’s jurisdiction. The district court determined that it had jurisdiction over the 

subject matter of the action because it was a claim for possession of the Chevrolet Equinox and 

both the vehicle and the purported owner, John Bach, were residing in or were located in Teton 

County, Idaho, to satisfy in rem and in personam requirements. Bach also argued that the action 

 

1 The appellate briefs filed by Bach largely suffer from incomprehensible “pseudo-legal 

hodgepodge and unintelligible verbiage” similar to that observed by the Idaho Supreme Court 

with regard to Bach’s briefs in Liponis v. Bach, 149 Idaho 372, 374, 234 P.3d 696, 698 (2010) 

and Bach v. Bagley, 148 Idaho 784, 229 P.3d 1146 (2010). In the Bagley case, the Court said: 

“Because of Bach’s convoluted briefing, it is not easy to follow his arguments or to discern how 

they might be legally supported.” Bagley, 148 Idaho at 791, 229 P.3d at 1153. Because Bach’s 

arguments were “so lacking in coherence, citations to the record, citations of applicable 

authority, or comprehensible argument,” id., the Court in Liponis refused to consider the 

arguments on appeal. Liponis, 149 Idaho at 375, 234 P.3d at 699.
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involving the vehicle should have been brought in Montana, since the sales transaction occurred 

there, and because a clause in the contract specified that: “Federal law and Montana law apply to 

this contract.” The district court held that although federal law and Montana law may apply to 

substantive issues related to the contract, they did not control the procedural rules relating to 

service of process and jurisdiction of the courts in Idaho. Moreover, the clause does not mandate 

venue in Montana. The district court relied on the provisions of Idaho Code § 1-705 that grant 

original jurisdiction to the district court in “all cases and proceedings.” The court determined 

that there is nothing unusual or extraordinary about the action of GMAC to repossess a vehicle. 

We agree that the district court’s jurisdiction was properly established and the district court 

correctly denied Bach’s assertion to the contrary. 

We would further note that at no time did Bach assert there was any provision in the 

contract that was in need of interpretation or was ambiguous and would require resort to 

Montana law for resolution. He did not otherwise seek the application of any provision of 

Montana law to this case. He simply claimed that GMAC should have brought the action in 

Montana. We conclude that Bach’s claim that the district court lacked jurisdiction to decide this 

case is without merit.2

B. Verification Question

Bach challenged the verification to GMAC’s complaint. According to the district court’s 

memorandum decision addressing the issue, Bach argued that the complaint was invalid because 

GMAC’s complaint was verified by an Arizona notary and signed by a company representative 

who, according to Bach, is “a wholly unknown and unqualified, nor authenticated person in the 

state of Idaho.” He further suggested, without supporting authority, that a verification made 

outside of Idaho invalidates the complaint. The district court rejected Bach’s challenge, finding 

that Bach had failed to produce any evidence establishing that the party verifying the complaint 

was legally incompetent to do so. The district court noted that Bach could pursue the issue 

 

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 In its brief, GMAC points out that the complaint in this action was for recovery of a 

vehicle in Idaho. This was an in rem action under Idaho Code § 8-301 to recover possession of 

the vehicle after payments became in default. By the very nature of the type of action involved, 

the suit was required to be filed in the state where the vehicle was located. If the suit had been 

filed in Montana, GMAC would be unable to obtain possession of the vehicle located in Idaho 

with a Montana writ of possession. The suit necessarily had to be filed in the forum where the 

vehicle was located; i.e., in the state of Idaho.
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further through discovery and present additional information to the district court at a later date, if 

necessary and justified.3 

In its analysis of the question, the district court applied Idaho Rule of Civil 

Procedure 11(c), which provides that a verification: 

shall be a written statement or declaration by a party or the party’s attorney of 

record sworn to or affirmed before an officer authorized to take depositions by 

Rule 28, that the affiant believes the facts stated to be true, unless a verification 

upon personal knowledge is required. When a corporation is a party, the 

verification may be made by an officer thereof.

The verification in question is signed by one Kathleen FitzGerald, who after first being 

duly sworn on oath, stated that “I am an employee of Semperian, Inc., agent for General Motors 

Acceptance Corporation and am actively engaged in the operation of said corporation and ha[ve] 

personal knowledge of the facts contained herein; [t]hat I have read the within and foregoing 

complaint, know[] the contents thereof and believe[] the facts therein stated to be true and correct 

and make[] this verification this date on behalf of the corporation.” The verification signature is 

dated two days before counsel for GMAC signed and filed the complaint.4

 

The verification signed by Ms. FitzGerald as an employee of an agent of GMAC5 recites 

that it was executed before a notary public for the state of Arizona residing in Maricopa County, 

Arizona. As noted above, I.R.C.P. 11(c) does not require that a verification be notarized only by 

an Idaho notary public. The rule refers to Rule 28, which provides that depositions shall be 

taken before a person authorized by the state of Idaho, by the United States, or of the place where 

the examination is held, within or without the state of Idaho. Therefore a notary public for the 

state of Arizona may properly notarize a verification to be used in a court in Idaho.

 

3 On appeal, Bach continues to make the same argument and also raises other questions 

about the validity of the verification but evidently never did pursue the discovery route suggested 

by the district court.

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 Contrary to one of Bach’s arguments, we find no requirement that the date of the 

verification must be the same or a subsequent day as that of the attorney’s signature or the same 

date as the filing stamp on the clerk’s office record.

5 Bach’s assertion that the agent of plaintiff GMAC, Semperian, Inc., was not registered to 

do business in Idaho is of no legal significance.
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Having reviewed the record, we concur with the district court that Bach failed to establish 

any invalidity with regard to the verification of the complaint. The complaint was properly 

verified and the district court correctly denied Bach’s challenge to the validity of the complaint.

C. District Judge

Bach next asserts a convoluted position concerning whether he was denied fair treatment 

by the district court. He argues that the district court committed error by inserting personal 

comments into one of its decisions in this case that indicated a bias on the court’s part. Although 

it is unclear from the briefing, we agree with the respondent that it appears that Bach raised this 

issue on the basis of the district court’s comments taking judicial notice that it is dangerous to 

drive in certain places in Idaho during the winter, including Teton County. When Bach 

challenged the district court’s opinion about weather conditions, and argued that weather 

conditions in Teton County were not in issue, the court issued an amended memorandum 

decision and removed the statement concerning weather conditions from the amended order 

granting summary judgment.

On appeal, Bach argues that the district court’s observation about the weather was made 

in the context of dismissing Bach’s counterclaim which asserted that the Chevrolet automobile 

was defective and unsafe to drive in the winter in Teton County. Bach argues that the district 

court’s opinion about the weather conditions was hearsay, was improper for the subject of 

judicial notice, and was an effort by the court to interject itself into the case as an expert 

witness,6 thereby demonstrating that the court was biased against Bach when it dismissed his 

counterclaim. 

We are not persuaded by Bach’s argument. He has not established that the district court 

was biased, acted improperly, or denied due process to him.

D. GMAC Conduct

As his final issue, Bach contends that GMAC misled the district court and abused process 

by bringing this action. However, there is nothing in the record that substantiates this assertion. 

GMAC filed the action to obtain possession of a vehicle in default of financial obligations. The 

contract debtor, Cindy Lee Bach, was deceased. The action included as a defendant the person 

 

6 To the extent Bach asserts that the district court assumed the role of expert witness when 

it applied the law to the facts, including the significance of legal documents, Bach’s claim is 

simply incorrect.
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in possession of the vehicle in Idaho, John Bach. To establish a right to summary judgment, 

GMAC produced a copy of the financing contract, affidavits declaring the amount of the 

outstanding debt, GMAC’s recorded lien for the vehicle, and the “Decree of Summary 

Administration” in the Cindy Lee Bach estate that awarded the vehicle to John Bach and ordered 

that he assume and be responsible for the indebtedness on the vehicle. The record supports the 

award of summary judgment by the district court allowing GMAC to repossess and dispose of 

the automobile. Contrary to Bach’s argument, there is no evidence of any misleading or abusive 

actions on the part of GMAC in this case.

E. Award of Attorney Fees to Respondent

GMAC has requested an award of attorney fees for this appeal, asserting four grounds or 

bases for such an award. First, GMAC relies upon the provision in the financing contract by 

which the vehicle was purchased. The contract provides: “If we hire an attorney who is not our 

salaried employee to collect what you owe, you will pay the attorney’s reasonable fee and court 

costs the law permits.” Next, GMAC seeks the award under Idaho Code § 12-120(1), which 

allows for an award of attorney fees where the amount pleaded is $25,000 or less. (The 

complaint in this case alleged that the indebtedness owing on the vehicle was the sum of 

$17,059.18 plus prejudgment interest at the rate of $4.16 per day from and after March 30, 

2009.) GMAC also requests the award of attorney fees under Idaho Code § 12-120(3), which 

provides for an award of fees to the prevailing party on a contract relating to the sale of goods. 

Finally, GMAC asks for the award under Idaho Code § 12-121, which allows for an award to the 

prevailing party in the court’s discretion.

Because we uphold the judgment of the district court in this case, GMAC is the 

prevailing party. Therefore, we will award attorney fees to GMAC under the financing contract, 

and under the statutory grounds claimed by GMAC. In particular, to paraphrase a prior decision 

of this Court:

Such an award will be made under I.C. § 12–121 if we are left with the abiding 

belief that the appeal was brought or pursued unreasonably, frivolously or without 

foundation. Minich v. Gem State Developers, Inc., 99 Idaho 911, 591 P.2d 1078 

(1979). We believe this appeal falls within the Minich standard. The agreement 

relied on by [GMAC] is clear and unambiguous. We have not been confronted 

with a choice between reasonable inferences. The law governing the case is well 

settled. Finally, there has been no cogent argument that the district court, in 

granting summary judgment, misapplied the law to the uncontroverted facts. 
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Therefore, we award attorney fees on appeal to [GMAC] in an amount to be 

determined as provided in I.A.R. 41(d).

Laight v. Idaho First Nat’l Bank, 108 Idaho 211, 215, 697 P.2d 1225, 1229 (Ct. App. 1985).

V.

CONCLUSION

The judgment is affirmed. Attorney fees on appeal, together with costs, are awarded to 

the respondent, GMAC.

Chief Judge GRATTON and Judge MELANSON CONCUR.