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

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-384%20Opinion.htm (1 of 4)4/25/2007 9:25:06 AM
97-384

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

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-384%20Opinion.htm (2 of 4)4/25/2007 9:25:06 AM
97-384

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.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-384%20Opinion.htm (3 of 4)4/25/2007 9:25:06 AM
97-384

¶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

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-384%20Opinion.htm (4 of 4)4/25/2007 9:25:06 AM