HELENA, Mont. (Legal Newsline) – The Montana Supreme Court on April 4 said a retired judge who was temporarily hearing some cases in the Flathead County was right to grant summary judgment to Capital One, NA in a mortgage foreclosure proceeding.

The defendants in the foreclosure action filed by Capital One, which took over the mortgage in question following a merger with Chevy Chase Bank FSB, argued that retired District Court Judge Katherine R. Curtis did not have jurisdiction over the case after the Chief Justice of the Montana Supreme Court enlisted her to take some cases from retiring judge Ted O. Lympus.

However, according to the Supreme Court’s appeal ruling, Curtis had “full authority to conduct all proceedings required by law” for the Lympus cases “including final resolution.”

The defendants/appellants, Martha M. Guthrie and Richard A. Guthrie, who was also listed as the custodian for defendant Taylor M. Guthrie, also said in their appeal that Curtis was wrong to rely on an affidavit submitted by Huy Pham in making her decision to grant Capital One’s request for summary judgment.

“Guthrie’s argument in the motion to strike was that the Pham affidavit was not admissible; it was not based on Pham’s personal knowledge, uncertified document copies were attached, and it failed to establish foundation for the business records exemption,” the Supreme Court ruling said.

Capital One argued that “the affidavit’s contents were properly authenticated as a business record pursuant to M. R. Civ. P. 803(6) and the affidavit clearly showed Pham had personal knowledge of the statements and procedures therein.”

In her denial of the Guthries’ motion to strike the Pham affidavit, Curtis pointed out that the defendants were in fact using some of the same exhibits as part of their filings and that they attested to the authenticity of the documents related to the affidavit.

The Supreme Court said in its opinion that, as a custodian of the documents in question, including copies of a title insurance policy, a certificate of the banks’ merger and an affidavit by Pham that an original promissory note was lost or missing, Pham “had personal knowledge of the procedures and practices Capital and its predecessor followed regarding the creation of business records, and testified to the authenticity of the records.”

According to the Supreme Court opinion, the Guthries attempted to obtain a third modification of the mortgage, but issues arose in connection with the valuation of the property. The bank, then Chevy Chase, recommended that the Guthries instead pay down the mortgage “in order to have a portion of the property released,” but they chose not to do so.

The Guthries stopped making payments in July 2009, and Capital One began foreclosure proceedings in April 2010, court documents state.

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