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Idaho

It Is Forever

Quick Facts
 
Capital: Boise
 
Area: 83,557 square miles
 
Ranks 13th in size
 
Nickname: Gem of the Mountains; Gem State
 
State Slogan: Great Potatoes. Tasty Destinations.
 
Admission Date: 1890
 
State Flower: Mock Orange
 
State Bird: Mountain Bluebird
Did you know?
  • The official gem of Idaho is the star garnet.
  •  
  • Idaho grew 27 billion potatoes in one year.
  •  
  • In 1951, at Idaho's National Reactor Testing Station, the first electricity from atomic energy was made.
  •  
  • At the Craters of the Moon National Monument, you can see several volcanos grouped closely together.
  •  
  • There are 31,000 miles of river flowing through Idaho, which is more than any other state.
  •  
  • The longest Main Street in the United States is in Island Park, Idaho. It is 35 miles long. 

In 1890, Idaho became the 43rd State to be admitted into the United States of America. Below are excerpts of the Idaho Constitution followed by what has and is happening in Idaho.


The Constitution of Idaho
We, the people of the State of Idaho, grateful to Almighty God for our freedom, to secure its blessings and promote our common welfare do establish this Constitution.
Preamble

All men are by nature free and equal, and have certain inalienable rights, among which are enjoying and defending life and liberty; acquiring, possessing and protecting property; pursuing happiness and securing safety.
Article 1, Section 1

The state of Idaho is an inseparable part of the American Union, and the Constitution of the United States is the supreme law of the land.
Article 1, Section 3

The exercise and enjoyment of religious faith and worship shall forever be guaranteed; and no person shall be denied any civil or political right, privilege, or capacity on account of his religious opinions; but the liberty of conscience hereby secured shall not be construed to dispense with oaths or affirmations, or excuse acts of licentiousness or justify polygamous or other pernicious practices, inconsistent with morality or the peace or safety of the state; nor to permit any person, organization, or association to directly or indirectly aid or abet, counsel or advise any person to commit the crime of bigamy or polygamy, or any other crime. No person shall be required to attend or support any ministry or place of worship, religious sect or denomination, or pay tithes against his consent; nor shall any preference be given by law to any religious denomination or mode of worship. Bigamy and polygamy are forever prohibited in the state, and the legislature shall provide by law for the punishment of such crimes.
Article 1, Section 4

The right of trial by jury shall remain inviolate; but in civil actions, three-fourths of the jury may render a verdict, and the legislature may provide that in all cases of misdemeanors five-sixths of the jury may render a verdict. A trial by jury may be waived in all criminal cases, by the consent of all parties, expressed in open court, and in civil actions by the consent of the parties, signified in such manner as may be prescribed by law. In civil actions the jury may consist of twelve or of any number less than twelve upon which the parties may agree in open court. Provided, that in cases of misdemeanor and in civil actions within the jurisdiction of any court inferior to the district court, whether such case or action be tried in such inferior court or in district court, the jury shall consist of not more than six.
Article 1, Section 7

No person shall be twice put in jeopardy for the same offense; nor be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty or property without due process of law.
Article 1, Section 13

Courts of justice shall be open to every person, and a speedy remedy afforded for every injury of person, property or character, and right and justice shall be administered without sale, denial, delay, or prejudice.
Article 1, Section 18

The distinctions between actions at law and suits in equity, and the forms of all such actions and suits, are hereby prohibited; and there shall be in this state but one form of action for the enforcement or protection of private rights or the redress of private wrongs, which shall be denominated a civil action; and every action prosecuted by the people of the state as a party, against a person charged with a public offense, for the punishment of the same, shall be termed a criminal action.
Feigned issues are prohibited, and the fact at issue shall be tried by order of court before a jury.
Article 5, Section 1


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It is happening in Idaho
We knew Idaho was a Northwest State that grew potatoes...


Prior to seeing Idaho for ourselves, we thought of it as a place in the Northwest where you can grow potatoes. When we first drove through Idaho, we were amazed at the beautiful terrain and abundant wildlife. We are nature enthusiasts so we quickly fell in love with Idaho's natural beauty. We came to love and give to Idaho and her people, not take from it and them. Time and the vicious attacks we have suffered in the State of Idaho have sadly soured and rotted our initial enchantment, but we have continued to fight to do our part and to try and help make a difference for those who were suffering and asking for our help.

Our story is not unlike many others. Many have come, been attacked, and chosen to leave Idaho. We have heard their stories and understood why they left. Even though the cost to us has been great, and it would have been much easier and monetarily beneficial to leave and silently walk away, we believed the truth of what has happened to us needed to be told. Why? Because we believed, and believe, the right thing to do in the face of wrong is sound the alarm. We felt it was our duty and obligation to provide Idaho with an opportunity to stand up for religious freedom, property rights, and due process. Idaho could have led the country in their response to our and other innocent Idaho homeowners' pleas. The appropriate authorities and officials all know our story and have heard the horrific stories of what has happened to us and to others, but they have done nothing to help or stop the abuse. They have chosen not to get involved and not to uphold the laws and regulations already in place that can save our Idaho Ranch and stop this assault. They have hidden behind committee mandates, ran in fear of messing up their pensions if they challenged JPMorgan Chase, refused to reign in the tyranny of the judicial branch, and used their official capacities as excuses not to stand with and alongside us as fellow Americans. These men and women could have shined the light of freedom in Idaho; but instead, they have allowed Idaho Courts to play hot potato and rotten potatoes with our ranch, lives, and freedoms. Where are the good guys in Idaho?

What might have been has been destroyed by what has been. The beauty of Idaho and the freedoms codified in the Idaho Constitution make Idaho seem like the perfect location in the land of the free for the home of the brave to settle, or have a place to be still, as in our case. However, no Constitution, laws, land, society, or freedom is immune from oppression, tyranny, and abuse if they are not upheld and enforced. No more silence. No more abuse. The choice to do nothing is the choice to do something. On November 12, 2019, our Nickerson Family Idaho Ranch was attacked in an armed invasion by the police powers of the State of Idaho without a warrant and outside the authority of the law. Is this okay with you, Idaho? Your answer to this question will determine your destiny.



And judgment is turned away backward, and justice standeth afar off: for truth is fallen in the street, and equity cannot enter. Yea, truth faileth: and he that departeth from evil maketh himself a prey. And the Lord saw it, and it displeased Him that there was no judgment.
Isaiah 59:14,15
 



 
Idaho Government Corruption?
The US-Observer has begun an investigation into the dealings between the Idaho Department of Finance (IDF) and Value Recovery Group, L.P., which, according to one legal source, blatantly committed a felony in the summer of 2014 and then was given a "pass" by the IDF. So far there have been no consequences for Value Recovery Group because IDF failed to investigate. This accusation alone creates "red flags" concerning integrity in the upper echelons of Idaho government!...What is beginning to appear at first blush, is the operation of a Corporateocracy (or corporate run government) destroying individuals financially; and there is no accountability, even from the 'watchdog' agencies charged with that responsibility. In fact, if what allegedly happened last summer was a felony by Value Recovery Group, L.P., and it was swept under the proverbial "rug," then, this is strong evidence that the corporate entities are being given immunity as they are destroying the citizens of Idaho with impunity.

United States Senator Mike Crapo, United States Senator James Risch, United States Representative Mike Simpson, and United States Representative Russ Fulcher, this has and is happening under your watch.
Read more...

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Tags: Idaho
Source: http://www.ini-world-report.org/2015/02/20/idaho-government-corruption/
Article by Edward Snook

 
 
This entire ordeal is truly inconceivable by any rational, sane, or even remotely normal human being. How can companies conspire together to refuse payments, destroy perfect credit to prevent a homeowner from accessing other equity so they can protect their interests, fraudulently create records to support their lies and deception, and treat their customers or alleged customers so outrageously wrong? Is there hidden gold or oil on this property? What gives? How does your mind wrap around all this? It is crazy behavior and conduct by any standard. It is irrational, inconceivable and outrageous. Someone needs to be held accountable. Someone needs to go to jail. The Nickersons need to be reimbursed for all that has been stolen, and justice needs to be served. May God render to every man according to his deeds.
Nickerson's Amended Answer and Counterclaim (Idaho), pg. 165

Finding no relief through judicial intervention has added to our victimization and left us feeling helpless, hopeless, vulnerable and exposed. For us, this is a fight to save our lives from people who have access and knowledge of the facts, but have intentionally disregarded, struck and concealed those facts, knowing they were and are directly and indirectly causing loss, damages, injuries, severe pain and extreme suffering, and yet intentionally, and with total indifference to the consequences, proceeding forward with this wrongful and fraudulent foreclosure despite its impact on our family now and for the rest of our lives. We cannot even offer these reprobates the grace of our Lord Jesus Christ in praying “Father, forgive them for they know not what they do.” For they do know. And yet, they are still doing it. So instead, we pray, “Let destruction come upon them unawares, let the net they have hid catch them, and let them fall into that very destruction.” And, may God, with or without the help of this Court, redeem and restore to the Nickersons the years that the swarming locusts have eaten.

Nickerson's Amended Answer and Counterclaim (Idaho), pg. 216
 

Our View: Corruption Stinks, and Idaho Needs a Bath
Good old boy politics has a certain stink, and Idaho reeks to high heavens. Lawmakers must toss aside decades of neglect, do their jobs and grab the deodorant stat. Over the past few months, sweetheart deals surfaced that were orchestrated by Gov. C.L. “Butch” Otter’s administration with Correction Corporation of America, which bilked taxpayers out of millions, and CenturyLink, over the Idaho Education Network. They’re merely the most recent examples of small-townstyle politics run amok at the state level....
Neither lawmakers nor executive officials report their personal finances....Idaho is a failing state, run by special interests and elected officials regulated only by the honor system. Idaho’s systems to combat corruption rank 41st nationally, says a recent State Integrity Investigation study funded by good-government and media groups.
The state notably got an "F" for executive-level and legislative accountability. The few regulations governing conflicts of interest in the Governor's Office are ineffective, researchers found. And Idaho is one of three states in which lawmakers don't have to disclose their finances.
It's a structure designed to protect backroom dealing. Only a lawmaker's conscience stands between transparent governance and outright, self-interested, malfeasance.
...
Read more...

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Tags: Idaho
Source: http://magicvalley.com/news/opinion/editorial/our-view-corruption-stinks-and-idaho-needs-a-bath/article_9cdda194-64ea-5966-a5bc-b0844c9d55fd.html
Article by Times-News Editorial Board, November 28, 2014

 

Jeff Sessions nails big mortgage company for $75M over false claims
For years, we’ve all complained about how the big mortgage lenders get away with dishonest business practices, leaving the little guy holding the bag. Well, today, Jeff Sessions is making one of the lenders pay up. On Thursday, the Justice Department announced that PHH Corp., PHH Mortgage Corp., and PHH Home Loans (collectively, PHH) agreed to pay over $74 million to resolve alleged False Claims Act liabilities arising from mortgage lending. Below is the full release with all the details. I urge you to share this story on your social media page. Let people know that “things” are being done to make America great again....
We have been fighting to keep our faith in the law for years, but it has felt like misplaced faith during our journey through the Idaho injustice system and the Montana see-no-evil system. We are very thankful to read Attorney General Jeff Sessions and the Department of Justice getting involved with PHH. Time will tell how serious and committed their efforts are. We are fighting 5 banksters (PHH Mortgage, JP Morgan Chase, HSBC, Wells Fargo, Coldwell Banker) because they have played hot potato with our loans. HSBC is foreclosing on our Montana Ranch and PHH is foreclosing on our Idaho Ranch. Neither have beneficial interests in the properties. State and federal crimes have been committed. These criminals need to go to jail for what they have done to our family.
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Tags: Idaho
Source: http://dennismichaellynch.com/jeff-sessions-nails-big-mortgage-company-75m-false-claims/
Article by Dennis Michael Lynch, August 10, 2017


OPEN LETTER TO THE ATTORNEY GENERAL OF THE UNITED STATES

Mr. Attorney General, we implore you to do your part to help make protect and preserve our American homeland. Can you please take a look and see if there is anything you can do to save our home and ranches? The truth, law, and justice are 100% on our side. We committed no act or inaction to cause, warrant or justify these attacks on our property and entire financial portfolio. Everyone else is apparently too afraid to stand up and do the right thing. Please help us if you can.

Because it happened to us,
The Nick and Donna Nickerson Family
 

Idaho's Attorney General gets involved and helps hold banks responsible for what they did to Idaho homeowners. Second largest settlement in Idaho history: Biggest banks to pay Idaho borrowers $100 million.
“The settlement holds the participating banks accountable for their unacceptable mortgage servicing and foreclosure practices and provides relief to homeowners,” Attorney General Lawrence Wasden said. “Backed by a federal court order, the settlement will aid homeowners with enforceable changes to how their loans are serviced.”....
The investigation expanded beyond issues of so-called document “robo-signing” and focused also on allegations that the banks may have: • failed to timely and accurately apply borrowers’ loan payments;...
• charged excessive or improper fees for default-related services;
• failed to properly oversee third-parties involved in the banks’ servicing activities;
• imposed high-cost hazard insurance on borrowers without properly notifying them;
• provided false or misleading information in response to borrowers’ complaints; and
• failed to maintain appropriate staffing, training and quality control systems.
The settlement provides for comprehensive new servicing and foreclosure protections for borrowers....

When reading this article, please note the amount actually being paid to Idaho homeowners. Make sure you get out your calculator and review the dispersion of the funds before you accept this as a victory for homeowners who have lost their homes.
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Tags: Idaho
Source:http://www.ag.idaho.gov/media/newsReleases/2012/nr_02092012.html
Article by Idaho AG News Release, February 9, 2012

 

In the Wake of Foreclosure, a Debt That Won’t Die
The National Consumer Law Center, a nonprofit consumer advocacy group, confirms that deficiency judgments appear to be going up across the country, but how that plays out depends on state law. Geoff Walsh, a staff attorney with the organization, says approximately 40 states, including Idaho, allow lenders to sue former homeowners for the amount of the mortgage that remains after a foreclosure. Idaho is more protective of homeowners than some of those states. It requires lenders to act within 90 days of the foreclosure sale. Elsewhere, the statute of limitations can be much longer. “In many other states around the country, homeowners find themselves subject to deficiency actions one, two, three, four or five years after they’ve been foreclosed,” Walsh says. That means former homeowners can think they’ve moved on, only to find that the debt is still there. “They’ve definitely been under the impression that they walked away from a situation, or it’s over,” says Walsh, “and then this deficiency claim in court just comes back and hits them.”...
Lenders are selling deficiency claims. “I do know some private investors who are coming in and purchasing up bank loan packages and have been paying literally pennies on the dollar, ” she says. “Just sitting on the paper, waiting for the right time to collect on it.”...

NOTE: This article recommends a short sale to avoid a deficiency judgment. We do not agree. We recommend you either do some serious research online or at your local or state law library, or seek competent legal counsel before agreeing to a short sale. More articles that detail short sale horror stories will be posted soon.

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Tags: Idaho
Source: https://stateimpact.npr.org/idaho/2011/10/25/in-the-wake-of-foreclosure-a-debt-that-wont-die/

Article by Molly Messick, October 25, 2011

 


Case Excerpts

Below are excerpts from legal cases that we have found during our research. Please note that we are not necessarily recommending or endorsing any of the cases or their outcomes. However, we have found the parts below to be helpful and informative in our battle.



Reconsideration
“…a motion for reconsideration pursuant to Rule 11(a)(2)(B) was proper, even if filed after final judgment had been entered, because the Patient sought reconsideration of an interlocutory order. When considering a motion for reconsideration under Rule 11(a)(2), the district court should take into account any new facts, law, or information presented by the moving party that bear on the correctness of the district court’s interlocutory order. Coeur d’Alene Mining Co. v. First Nat’l Bank of N. Idaho, 118 Idaho 812, 823, 800 P.2d 1026, 1037 (1990). However, new evidence is not required and the moving party can re-argue the same issues in addition to new arguments.”
Arregui v. Gallegos-MAIN, 153 Idaho 801, 291 P.3d 1001 (2012)

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Tags: Idaho
Source: Arregui v. Gallegos-MAIN, 153 Idaho 801, 291 P.3d 1001 (2012)

 

Court Determinations
“It has long been judicial policy in Idaho that controversies be determined and disposed of each on its own particular facts and as substantial justice may require. The exercise of judicial discretion should tend to bring about a judgment on the merits. Perry v. Perkins, 73 Idaho 4, 245 P.2d 405 (1952); Dellwo v. Peterson, 34 Idaho 697, 203 P. 472 (1921). See 5 Am.Jur.2d Appeal and Error § 906.

In addressing the effect of noncompliance with procedural statutes and rules, the Court in Stoner v. Turner, 73 Idaho 177, 121, 247 P.2d 469, 471 (1952), said:
The object of statutes and rules regulating procedure in the courts is to promote the administration of justice. Those statutes and rules which fix the time within which procedural rights are to be asserted are intended to expedite the disposition of causes to the end that justice will not be denied by inexcusable and unnecessary delay. But, except as to those which are mandatory or jurisdictional, procedural regulations should not be so applied as to defeat their primary purpose, that is, the disposition of causes upon their substantial merits without delay or prejudice.

A ‘determination’ of an action within the meaning of Rule 1 is meant to be a determination of the controversy on the merits – not a termination on a procedural technicality which serves litigants not at all. A determination entails a finding of the facts and an application of the law in order to resolve the legal rights of litigants who hope to resolve their differences in the courts. The ‘liberal construction’ of the rules required by Rule 1, while it cannot alter compliance which is mandatory or jurisdictional, will ordinarily preclude dismissal of an appeal for that which is but technical noncompliance. This will be especially so where no prejudice is shown by any delay which may have been occasioned…Sound judicial discretion properly exercised will reflect the judicial policy of this State developed over many years by case law, and lying within the spirit of liberality mandated by Rule 1.”

Bunn v. Bunn, 99 Idaho 710, 587 P.2d 1245 (1978)

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Source: Bunn v. Bunn, 99 Idaho 710, 587 P.2d 1245 (1978)

 

Res Judicata
“It is, of course, the general rule that once a judgment issues it is res judicata with respect to all issues which were or could have been litigated. There are a number of avenues, however, for attacking a judgment… Finally, provision for the modification of all final judgments is made in I.R.C.P. 60(b). The rule provides for two means of attacking a decree: first, by motion, for the reasons set out in 60(b)(1) through (6).”
Compton v. Compton, 101 Idaho 328, 612 P.2d 1175 (1980)

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Source: Compton v. Compton, 101 Idaho 328, 612 P.2d 1175 (1980)

 

Res Judicata

“The plea of res judicata is an affirmative defense and the burden rests on the party asserting it to establish all of the essential elements thereof by a preponderance of the evidence.”
Foster v. City of St. Anthony, 122 Idaho 883, 841 P.2d 413 (1992)

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Source: Foster v. City of St. Anthony, 122 Idaho 883, 841 P.2d 413 (1992)

 

Must Consider Evidence with Motion to Reconsider
"When considering whether the evidence shows a genuine issue of material fact, the trial court must liberally construe the facts, and draw all reasonable inferences in favor of the nonmoving party. Mitchell v. Bingham Mem'l Hosp., 130 Idaho 420, 422, 942 P.2d 544, 546 (1997).

The district court has no discretion on whether to entertain a motion for reconsideration pursuant to Idaho Rule of Civil Procedure 11(a)(2)(B). On a motion for reconsideration, the court must consider any new admissible evidence or authority bearing on the correctness of an interlocutory order. . See PHH Mortg. Servs. Corp. v. Perreira, 146 Idaho 631, 635, 200 P.3d 1180, 1184 (2009) (citing Coeur d'Alene Mining Co. v. First Nat'l Bank of N. Idaho, 118 Idaho 812, 823, 800 P.2d 1026, 1037 (1990)). However, a motion for reconsideration need not be supported by any new evidence or authority. When deciding the motion for reconsideration, the district court must apply the same standard of review that the court applied when deciding the original order that is being reconsidered. In other words, if the original order was a matter within the trial court's discretion, then so is the decision to grant or deny the motion for reconsideration. If the original order was governed by a different standard, then that standard applies to the motion for reconsideration. Likewise, when reviewing a trial court's decision to grant or deny a motion for reconsideration, this Court utilizes the same standard of review used by the lower court in deciding the motion for reconsideration. If the decision was within the trial court's discretion, we apply an abuse of discretion standard. On the other hand, when reviewing the grant or denial of a motion for reconsideration following the grant of summary judgment, this Court must determine whether the evidence presented a genuine issue of material fact to defeat summary judgment. In this case, the trial court was asked to reconsider the granting of a motion for summary judgment, so the summary judgment standard applied both to the trial court deciding the motion for reconsideration and to our review of that decision on appeal."

Fragnella v. Petrovich, 153 Idaho 266, 281 P.3d 103 (2012)

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Tags: Idaho
Source:
Fragnella v. Petrovich, 153 Idaho 266, 281 P.3d 103 (2012)
 

Reconsideration
“A rehearing or reconsideration in the trial court usually involves new or additional facts, and a more comprehensive presentation of both law and fact. Indeed, the chief virtue of a reconsideration is to obtain a full and complete presentation of all available facts, so that the truth may be ascertained, and justice done, as nearly as may be.

…every court has power "To amend and control its process and orders, so as to make them conformable to law and justice."

"A renewal motion may be filed with the permission of the court. It involves a question of practice, and the decision of the first motion is not necessarily res adjudicata. As was held in Belmont v. Erie g Co., 52 Barb. (N.Y.) 637: `It is well settled that whatever can be done upon motion to the court may, by the court, upon further motion by either party, be altered, modified or wholly undone.'

‘In 1 Freeman on Judgments (5th Ed.) p. 432, it is said that where the court is deceived or is laboring under a mistake or misapprehension as to the state of the record or as to the existence of extrinsic facts upon which its action is predicated, it has inherent power to vacate a judgment which would not otherwise have been rendered’.”

JI Case Company v. McDonald, 76 Idaho 223, 280 P.2d 1070 (1955)

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Source: JI Case Company v. McDonald, 76 Idaho 223, 280 P.2d 1070 (1955)

 

Claims of Fraud and Summary Judgment
“…the law in Idaho is that an action for relief on the grounds of fraud will not be “deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud” I.C. § 5-218.

…this Court has held that before a claim of fraud can be dismissed on a motion for summary judgment based on res judicata, a court must first answer the question of whether there is more than one conclusion as to whether the party alleging the fraud has exercised due diligence in discovering the fraud. Kawai Farms v. Longstreet, 121 Idaho 610, 826 P.2d 1322 (1992). If the court finds that there exists more than one conclusion that such party exercised due diligence, then a material question of fact exists precluding a granting of summary judgment. Id.… In Kawai Farms, relying on our prior decision in Gerlach v. Schultz, 72 Idaho 507, 244 P.2d 1095 (1952), we held that an individual's reliance on another's fraudulent representations can affect the question as to whether a proper investigation was conducted, and therefore can raise more than one conclusion as to whether the fraud could have been discovered through reasonable diligence.”

Hall v. Forsloff, 124 Idaho 771, 864 P.2d 609 (1993)

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Tags: Idaho
Source: Hall v. Forsloff, 124 Idaho 771, 864 P.2d 609 (1993)

 

Possession and Ownership in the Note
“…Movant must show that it has an interest in the relevant note, and that it has been injured by debtor’s conduct (presumably through a default on the note). Such is necessary to establish constitutional standing.

In conclusion, Movants have failed to establish they possess the notes at issue. For this reason alone, the Court can, and will, deny their motions.

Because Movants failed to establish possession and an ownership interest in the notes, they are not shown to be the real party in interest, and they lack standing to bring the motions.”

In re Wilhelm, 407 B.R. 392 (Bankr. D. Idaho 2009)

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Tags: Idaho
Source: In re Wilhelm, 407 B.R. 392 (Bankr. D. Idaho 2009)

 

Deception

“…no person is privileged to deceive another to the other's detriment.”
Kawai Farms, Inc. v. Longstreet, 121 Idaho 610, 826 P.2d 1322 (1992)

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Tags: Idaho
Source: Kawai Farms, Inc. v. Longstreet, 121 Idaho 610, 826 P.2d 1322 (1992)

 

Statutes Interpretation
“If the statutory language is unambiguous, the legislatures clearly expressed intent must be given effect…Thus, the plain meaning of a statute will prevail…”
KOOTENAI HOSP. V. BONNER CTY. BD., 149 Idaho 290, 233 P.3d 1212 (2010)

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Tags: Idaho
Source: KOOTENAI HOSP. V. BONNER CTY. BD., 149 Idaho 290, 233 P.3d 1212 (2010)

 

Statutes Interpretation #2

“When construing the language contained in a statute, this Court will construe statutory terms according to their plain, obvious, and rational meanings.”
Sweitzer v. Dean, 118 Idaho 568, 798 P.2d 27 (1990)

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Source: Sweitzer v. Dean, 118 Idaho 568, 798 P.2d 27 (1990)

 

Amended Pleadings
“In response to plaintiff's motion for summary judgment, the defendant filed an affidavit alleging fraud on the part of the plaintiff. The court below concluded that the defendant might be able to establish the necessary elements of fraud and therefore ordered that "if Defendant files an amended answer properly setting up such defense within ten days, and leave is hereby granted therefor, then the motion for summary judgment must accordingly be denied."

Bistline, Justice, specially concurring. While I agree in affirming, I believe it of sufficient importance to state my view that the submission of an affidavit in response to a motion for summary judgment may, and ordinarily does, suffice to introduce an issue without a formal amendment to the complaint, answer, or cross-complaint — as the case may be.

The court in Griffeth v. Utah Power & Light Co., 226 F.2d 661 (9th Cir.1955), aptly stated that "[u]nder pre-trial or summary judgment procedure, the affidavits serve the same purpose as the allegations of the pleading. Here the affidavit ... was an extension of the answer." Id. at 670.

The court in Parsons v. Doctors for Emergency Services, 81 F.R.D. 660 (D.Del. 1979), similarly noted that issues of law raised in pretrial orders constitute exceptions to the general rule that affirmative defenses not pleaded are waived. "Since the pretrial order preserved the defendant's factual and legal contention of contributory negligence, the issue was not waived by the defendant's failure to conform to Rule 8(c)." Id. at 662.

Further, after the judgment was entered, relief should have been sought under I.R.C.P 60(b); it should not have been sought in the first instance in this Court.[1] While all the parties knew that fraud was an issue, the court was within its rights in asking for an amended pleading to specifically set forth the allegations of fraud. Nor can the court be faulted for subsequently entering judgment for plaintiff when defendant failed to comply.”

McKee Bros., Ltd. v. Mesa Equipment, Inc., 102 Idaho 202, 628 P.2d 1036 (1981)

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Source: McKee Bros., Ltd. v. Mesa Equipment, Inc., 102 Idaho 202, 628 P.2d 1036 (1981)

 

Setting Aside a Sheriff Sale
“This Court's decisions have set out a consistent and appropriate standard to apply in cases seeking to set aside a sheriff's sale conducted under Idaho's execution statutes. We stated that standard in Federal Land Bank of Spokane v. Curts: "As a general rule mere inadequacy of consideration is not sufficient ground for setting aside a sheriff's sale, but it is uniformly held that gross inadequacy of consideration, coupled with very slight additional circumstance, is sufficient." 45 Idaho 414, 425, 262 P. 877, 880 (1927). (Emphasis added.) We reiterated it in Gaskill, which involved a mortgage foreclosure. There, we said: "As a general rule, mere inadequacy of consideration is not sufficient ground for setting aside a sheriff's sale, but it is uniformly held that gross inadequacy of consideration, coupled with very slight additional circumstances, is sufficient." 77 Idaho at 433, 293 P.2d at 960. This rule was reiterated in Suchan where we said, "[i]n general, gross inadequacy of price coupled with irregularities in the sale warrants vacation." 113 Idaho at 109, 741 P.2d at 1296. In all of the reported cases where relief has been granted from a sheriff's sale involving a grossly inadequate purchase price, some additional circumstance was involved. In Suchan, this Court observed that, both in Gaskill and Curts, there had been not only an inadequate sale price, but the sheriff conducting the execution sale sold the property in parcels, rather than as a unit, at the direction of persons not authorized to direct the manner and order of the sale, and the sheriff also improperly ignored the highest bid offered at the sale and instead accepted a much lower bid. Suchan, 113 Idaho at 109, 741 P.2d at 1296. In Tudor Engineering Co. v. Mouw, 109 Idaho 573, 709 P.2d 146 (1985), the court granted an equitable right of redemption to a debtor where the real property executed upon and sold at the sheriff's sale produced a grossly inadequate purchase price and the judgment creditor failed to provide any of the interested parties with actual notice of the execution sale. Id. at 575, 709 P.2d at 148. The foregoing cases had one additional fact in common—they were all cases in which the party injured by the grossly inadequate sale price and additional circumstance was the judgment debtor.”
Phillips v. Blazier-Henry, 154 Idaho 724, 302 P.3d 349 (2013)

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Source: Phillips v. Blazier-Henry, 154 Idaho 724, 302 P.3d 349 (2013)

 

Negligence Sets Aside Judgment
“…it is said that, where it appears that a judgment was taken against appellant through the negligence of an attorney who had been employed by such party, nothing is left to the discretion of the court, and the judgment must be set aside.”
Pierce v. Vialpando, 78 Idaho 274, 301 P.2d 1099 (1956)

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Source: Pierce v. Vialpando, 78 Idaho 274, 301 P.2d 1099 (1956)

 

Relief Under Rule 60
“Clearly, too, the mistake, inadvertence, surprise or excusable neglect need not be that of the party making the motion. In 7 Moore’s Federal Practice, Sec. 60.22[2], page 247, in discussing Federal Rule 60(b)(1), which is identical with Idaho’s Rule of the same number, after commenting on the old rule which restricted relief to cases involving movant’s own mistakes, etc., it is said: “Relief can now be had under 60(b)(1) not only for the mistake, etc. of the moving party, but also from that of other parties to the action, the clerk, and even the court. (Emphasis added.)”
Sines v. Blaser, 98 Idaho 435, 566 P.2d 758 (1977)

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Source: Sines v. Blaser, 98 Idaho 435, 566 P.2d 758 (1977)

 

Judgment, Fraud and 60b
“Moreover, where a party seeks to avoid the operation of a judgment on the basis of fraud, mistake, or other justifiable reason, I.R.C.P. 60(b) permits the court to set aside the judgment upon timely motion.”
Harper v. Harper, 122 Idaho 535, 835 P.2d 1346 (Ct. App. 1992)


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Source: Harper v. Harper, 122 Idaho 535, 835 P.2d 1346 (Ct. App. 1992)

 

Evidence Requirements
“The requirements of Rule 56(e) are not satisfied by an affidavit that is conclusory, based on hearsay, and not supported by personal knowledge.”
State v. Shama Resources Ltd. Partnership, 127 Idaho 267, 899 P.2d 977 (1995)

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Source: State v. Shama Resources Ltd. Partnership, 127 Idaho 267, 899 P.2d 977 (1995)

 

Abuse of Discretion

“Therefore, accepting the rationale of the Supreme Court in Cooter and considering our own standard for reviewing other awards of attorney fees, we conclude that the abuse-of-discretion standard is more compatible with our view of the appropriate role of our appellate courts in reviewing the award of sanctions under I.R.C.P. 11(a)(1) than de novo review.
...
…the abuse of discretion standard… is: (1) whether the trial court correctly perceived the issue as one of discretion; (2) whether the trial court acted within the outer boundaries of its discretion and consistently with the legal standards applicable to the specific choices available to it; and (3) whether the trial court reached its decision by an exercise of reason.

The appropriate focus of the trial court should have been whether McCabe "made a proper investigation upon reasonable inquiry." Durrant v. Christensen, 117 Idaho at 74, 785 P.2d at 638. To the extent the trial court did not give appropriate focus to its inquiry, it did not act consistently with the legal standards applicable to the choice it had to make.”

Sun Valley Shopping Ctr. v. Idaho Power, 119 Idaho 87, 803 P.2d 993 (1991)

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Source: Sun Valley Shopping Ctr. v. Idaho Power, 119 Idaho 87, 803 P.2d 993 (1991)

 

Fraud and Res Judicata
“…with respect to a fraud claim, res judicata would not bar the claim if Mr. Taylor could not have discovered the fraud by the exercise of due diligence. Kawai Farms, Inc. v. Longstreet, 121 Idaho 610, 614-15, 826 P. 2d 1322, 1326-27 (1992).”
Taylor v. Riley, 162 Idaho 692, 403 P.3d 636 (2017)

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Source: Taylor v. Riley, 162 Idaho 692, 403 P.3d 636 (2017)

 

Issue Preclusion
“Five factors are required in order for issue preclusion to bar the relitigation of an issue determined in a prior proceeding: (1) the party against whom the earlier decision was asserted had a full and fair opportunity to litigate the issue decided in the earlier case; (2) the issue decided in the prior litigation was identical to the issue presented in the present action; (3) the issue sought to be precluded was actually decided in the prior litigation; (4) there was a final judgment on the merits in the prior litigation; and (5) the party against whom the issue is asserted was a party or in privity with a party to the litigation……. For claim preclusion to bar a subsequent action there are three requirements: (1) same parties; (2) same claim; and (3) final judgment.”
Ticor Title Co. v. Stanion, 144 Idaho 119, 157 P.3d 613 (2007)

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Source: Ticor Title Co. v. Stanion, 144 Idaho 119, 157 P.3d 613 (2007)

 

Summary Judgment
"Summary judgment is appropriate if ‘the pleading, depositions, and admissions on file, together with 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.’ I.R.C.P 56(c).”
Trotter v. Bank of New York Mellon, 152 Idaho 842, 275 P.3d 857 (2012)

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Source: Trotter v. Bank of New York Mellon, 152 Idaho 842, 275 P.3d 857 (2012)

 

Testimony and Summary Judgment
“On a motion for summary judgment, the Court does not weigh evidence or determine truthfulness of allegations; instead, it determines the existence of genuine issues of material fact… Direct testimony of the non-movant must be believed… (citations omitted).”
Sparks v. ALLSTATE MEDICAL EQUIPMENT, INC., No. 1:14CV-00166-EJL-CWD. (D. Idaho, Dec. 7, 2015)

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Source: Sparks v. ALLSTATE MEDICAL EQUIPMENT, INC., No. 1:14CV-00166-EJL-CWD. (D. Idaho, Dec. 7, 2015)

 

Summary Judgment and Appeal
“This Court reviews an appeal from an order of summary judgment de novo, and this Court’s standard of review is the same as the standard used by the trial court in ruling on a motion for summary judgment.” (citations omitted)
Curlee v. Kootenai Cnty. Fire & Rescue, 148 Idaho 391, 224 P.3d 458 (2008)

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Source: Curlee v. Kootenai Cnty. Fire & Rescue, 148 Idaho 391, 224 P.3d 458 (2008)

 

Evidence and Summary Judgment
“If the evidence is conflicting on material issues or supports conflicting inferences, or if reasonable minds could reach differing conclusions, summary judgment must be denied.”
Doe v. Sisters of the Holy Cross, 126 Idaho 1036, 895 P.2d 1229, 1232 (Ct. App. 1995)

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Source: Doe v. Sisters of the Holy Cross, 126 Idaho 1036, 895 P.2d 1229, 1232 (Ct. App. 1995)

 

Affidavits and Summary Judgment
“In order to be considered on a summary judgment motion, affidavits must be based on personal knowledge, set forth facts that would be admissible in evidence at trial, and show that the affiant is competent to testify on the stated matters. I.R.C.P. 56(e). In determining the admissibility of evidence, trial courts are given broad discretion and will be reversed on appeal only when there has been a clear abuse of discretion. State, Dep't of Health and Welfare v. Altman, 122 Idaho 1004, 1007, 842 P.2d 683, 686 (1992); Baker v. Shavers, Inc., 117 Idaho 696, 698, 791 P.2d 1275, 1277 (1990).”
R Homes Corp. v. Herr, 142 Idaho 95, 123 P.3d 720 (Ct. App. 2005)

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Source: R Homes Corp. v. Herr, 142 Idaho 95, 123 P.3d 720 (Ct. App. 2005)

 

Fraud Needs No Definition
“Tusch Enterprises directs the court's attention to Faw v. Greenwood,101 Idaho 387, 613 P.2d 1338 (1980), and argues that the elements of misrepresentation outlined therein have been satisfied. The elements are as follows: ‘(1) a representation; (2) its falsity; (3) its materiality; (4) the speaker's knowledge of its falsity or ignorance of its truth; (5) his intent that it should be acted on by the person and in the manner reasonably contemplated; (6) the hearer's ignorance of its falsity; (7) his reliance on the truth; (8) his right to rely thereon; and (9) his consequent and proximate injury.’ Id., at 389, 613 P.2d at 1340, quoting Mitchell v. Siqueiros, 99 Idaho 396, 401, 582 P.2d 1074, 1079 (1978). We do not believe Tusch Enterprises' misrepresentation claim should be analyzed only with reference to the elements recited in Faw, supra…To say that all fraudulent misrepresentation must fit within Faw's nine-element formulation misconstrues the very nature of fraud. “Fraud vitiates everything it touches. It is difficult to define; there is no absolute rule as to what facts constituted [sic] fraud; and the law does not provide one `lest knavish ingenuity may avoid it.” Massey-Ferguson, Inc. v. Bent Equipment Company, 283 F.2d 12, 15 (5th Cir.1960). ‘[T]he law does not define fraud; it needs no definition; it is as old as falsehood and as versable as human ingenuity.’ Id.”
Tusch Enterprises v. Coffin, 113 Idaho 37, 740 P.2d 1022 (1987)

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Source: Tusch Enterprises v. Coffin, 113 Idaho 37, 740 P.2d 1022 (1987)

 

Amended Complaints
“In Smith v. Great Basin Grain Co., 98 Idaho 266, 561 P.2d 1299 (1977), the plaintiff’s amended their complaints after defendants moved for summary judgment. Id. at 272, 561 P.2d at 1305. Although the amended complaints reflected a new legal theory, this Court noted that there was no prejudice to the defendants ‘since the basic facts giving rise to a right of recovery remain unaltered.’ Id.

The time between filing the original complaint and the amended complaint is not decisive. See Clark v. Olsen, 110 Idaho at 324-26, 715 P.2d at 994-96 (where seven years separated original and amended complaints and defendants had moved for summary judgment, denial of motion to amend without justifying reason was abuse of discretion).”
Family Trust v. Christensen, 133 Idaho 866, 993 P.2d 1197 (1999)

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Source: Family Trust v. Christensen, 133 Idaho 866, 993 P.2d 1197 (1999)

 

Leave to Amend

“In this Circuit, ‘plaintiffs may seek amendment after an adverse ruling, and in the normal course district courts should freely grant leave to amend when a viable case may be presented.’ Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1039 (9th Cir. 2002).”
Brown v. Miller Brewing Co., No. 1: 12-cv-00605-REB (D. Idaho Jan. 17, 2014)

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Source: Brown v. Miller Brewing Co., No. 1: 12-cv-00605-REB (D. Idaho Jan. 17, 2014)

 

Leave to Amend and Abuse of Discretion
“I.R.C.P. 15(a) provides that leave of the court to amend a pleading ‘shall be freely given when justice so requires.’ (Our emphasis.)…Professors Wright and Miller in discussing Federal Rule 15 – an identical counterpart to our I.R.C.P. 15 – state that the purpose of the rule is two-fold: First, to allow the best chance for each claim to be determined on its merits rather than on some procedural technicality, and, second, to relegate pleadings to the limited role of providing parties with notice of the nature of the pleader’s claim and the facts that have been called into question. Issue formulation is to be left to the discovery process and pleadings are not to be viewed as carrying the burden of fact revelation or of controlling the trial phase of the action. C. Wright & A. Miller, Federal Practice and Procedure: Civil 2d § 1471 (1971).
The United States Supreme Court in Foman v. Davis, 371 U.S. 173, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962), explained the operation of Rule 15(a) as follows:
‘Rule 15(a) declares that leave to amend ‘shall be freely given where justice so requires’, this mandate is to be heeded. See generally, 3 Moore, Federal Practice (2nd ed. 1948), ¶¶ 15.08, 15.10. If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason – such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of the allowance of the amendment, futility of amendment, etc. – the leave sought should, as the rules require, ‘be freely given.’ Of course, the grant or denial of an opportunity to amend is within the discretion of the District Court, but outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules.’
In Smith v. Great Basin Grain Co., 98 Idaho 266, 272073, 561 P.2d 1299, 1305-06 (1977), this Court expressly adopted Foman’s language and, in addition, placed the burden of showing why a court should not grant leave to amend a complaint on the parties opposed to the amendment. Id. As Foman and Smith declare, a district courts refusal to grant leave to amend without any justifying reason is, per se, an abuse of discretion.”
Clark v. Olsen, 110 Idaho 323, 715 P.2d 993 (1986)


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Source: Clark v. Olsen, 110 Idaho 323, 715 P.2d 993 (1986)
 

Amendment Should be Freely Given
“A detailed examination of this rule [I.R.C.P. 15(a)] was recently set forth in Carl H. Christensen Family Trust:
The twin purposes behind the rule are to allow claims to be determined on the merits rather than on technicalities, and to make pleadings serve the limited role of providing notice of the nature of the claim and the facts at issue.
It is within the district court’s sound discretion to decide whether to allow a party to amend its complaint after a responsive pleading has been served. ‘[I]n the interest of justice, district courts should favor liberal
grants of leave to amend a complaint.’ Id. at 871, 993 P.2d at 1202 (internal citations omitted).
The Court went on to discuss the effect of ‘timeliness’ on a motion to amend, noting that in Smith v. Great Basin Grain Co., 98 Idaho 266, 561 P.2d 1299 (1977), this Court adopted the reasoning of the U.S. Supreme Court in interpreting the comparable federal rule:
In the absence of any apparent or declared reason-such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendment previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.–the leave sought should, as the rules require, be freely given. Id. at 871, 993 P.2d at 1202.

Due to the respondents’ awareness of the wrongful death claim, the district court erred in refusing to grant Alfred leave to amend the complaint. Allowing the amendment would comply with the ‘liberal application’ policy set forth by this Court and would not result in prejudice, undue hardship, or surprise to the
respondents.”
Hayward v. Valley Vista Care Corp., 136 Idaho 342, 33 P.3d 816 (2001)

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Source: Hayward v. Valley Vista Care Corp., 136 Idaho 342, 33 P.3d 816 (2001)

 

Contract Issues are for the Jury
“The existence of a contract is a genuine issue of material fact. “As to contract disputes at summary judgment, ‘[w]hen the existence of a contract is in issue, and the evidence is conflicting or admits of more than one inference, it is for the jury to decide whether a contract in fact exists.”’”
Safaris Unlimited, LLC v. Von Jones, 158 Idaho 846, 353 P.3d 1080 (2015)

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Source: Safaris Unlimited, LLC v. Von Jones, 158 Idaho 846, 353 P.3d 1080 (2015)

 

Agreements and Fraud
“’[A]greements and communications prior to or contemporaneous with the adoption of a writing are admissible in evidence to establish fraud.’ Tusch Enterprises v. Coffin, 113 Idaho 37, 45 n. 5, 740 P.2d 1022, 1030 n. 5 (1987), Mikesell v. Newworld Development Corp., 122 Idaho 868, 876, 840 P.2d 1090, 1098 (Ct.App.1992). Fraud vitiates the specific terms of the agreement and can provide a basis for demonstrating that the parties agreed to something apart from or in addition to the written documents.”
Aspiazu v. Mortimer, 139 Idaho 548, 82 P.3d 830 (2003)

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Source: Aspiazu v. Mortimer, 139 Idaho 548, 82 P.3d 830 (2003)

 

Waiver Defined

"Waiver is a voluntary, intentional relinquishment of a known right or advantage."
Brand S Corp. v. King, 102 Idaho 731, 639 P.2d 429 (1981)

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"A waiver is the intentional relinquishment of a known right. It is a voluntary act and implies election by a party to dispense with something of value or to forego some right or advantage which he might at his option have demanded and insisted upon."
Crouch v. Bischoff, 78 Idaho 364, 304 P.2d 646 (1956)

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Source: Brand S Corp. v. King, 102 Idaho 731, 639 P.2d 429 (1981)
Crouch v. Bischoff, 78 Idaho 364, 304 P.2d 646 (1956)

 

Assertion of Waiver
A party asserting waiver must have acted in reliance upon the waiver and altered the party's position."
Hecla Mining Co. v. Star-Morning Mining Co., 122 Idaho 778, 839 P.2d 1192 (1992)


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Source: Hecla Mining Co. v. Star-Morning Mining Co., 122 Idaho 778, 839 P.2d 1192 (1992)

 

Clean Hands and Equitable Relief
“In order to establish the prima facie case for unjust enrichment, the plaintiff must show that there was: (1) a benefit conferred upon the defendant by the plaintiff; (2) appreciation by the defendant of such benefit;
and (3) acceptance of the benefit under circumstances that would be inequitable for the defendant to retain the benefit without payment to the plaintiff of the value thereof. Idaho Lumber, Inc. v. Buck, 109 Idaho 737, 745, 710 P.2d 647, 655 (Ct. App. 1985).”

Under that doctrine [clean hands] a party who seeks equity must enter the court with ‘clean hands.’ More specifically, a litigant may be denied equitable relief by a court on the ground that his conduct ‘has been inequitable, unfair and dishonest, or fraudulent and deceitful as to the controversy at issue.’ Gilbert v. Nampa School District No. 131, 104 Idaho 137, 145, 657 P.2d 1, 9 (1983);”
Curtis v. Becker, 130 Idaho 378, 941 P.2d 350, (Ct. App. 1997)

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Source: Curtis v. Becker, 130 Idaho 378, 941 P.2d 350, (Ct. App. 1997)

 

Damages and Emotional Distress
In Idaho, four elements are necessary to establish a claim of intentional infliction of emotional distress: (1) the conduct must be intentional or reckless; (2) the conduct must be extreme and outrageous; (3) there must be a causal connection between the wrongful conduct and the emotional distress; and (4) the emotional distress must be severe. Curtis v. Firth, 123 Idaho 598, 601, 850 P.2d 749, 751 (1993) Justification for an award of damages for emotional distress seems to lie not in whether distress was actually suffered by a plaintiff, but rather the quantum of outrageousness of the defendant’s conduct. Brown v. Fritz, 108 Idaho 357, 362, 699 P.2d 1371, 1376 (1985).
Edmondson v. Shearer Lumber Products, 139 Idaho 172, 75 P.3d 733 (2003)

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Source: Edmondson v. Shearer Lumber Products, 139 Idaho 172, 75 P.3d 733 (2003)

 

Mortgages and Deed of Trusts Are not the Same
“Because the legislature has created a separate scheme for deeds of trust, the rationale for Brown v. Bryan, that mortgages and deeds of trust are functional equivalents, is undercut. The legislature obviously intended separate treatment; therefore, they are not functionally the same. A mortgage and a deed of trust are also separately defined. Compare I.C. § 45-901 with I.C. § 45-1502(3).”
Frazier v. Neilsen & Co, 115 Idaho 739, 769 P. 2d 1111 (1989)

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Source: Frazier v. Neilsen & Co, 115 Idaho 739, 769 P. 2d 1111 (1989)

 

Disputed Facts and Nonmoving Party
“All disputed facts are to be construed liberally in favor of the nonmoving party, and all reasonable inferences that can be drawn from the record are to be drawn in favor of the nonmoving party.”
Mackay v. Four Rivers Packing Co., 145 Idaho 408, 179 P.3d 1064 (2008)

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Source: Mackay v. Four Rivers Packing Co., 145 Idaho 408, 179 P.3d 1064 (2008)

 

Due Process and Deeds of Trust
““*** ‘The fundamental requisite of due process of law is the opportunity to be heard.’ Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363, [1368]. This right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest.
******
‘An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. (Citations). The notice must be of such nature as reasonably to convey the required information,* * * and it must afford a reasonable time for those interested to make their appearance. (Citations)’  339 U.S. 306, 70 S.Ct. at page 657, 94 L.Ed. at page 873.


Whereas the availability of more adequate financing for home construction and business expansion is essential to the development of the State of Idaho, and Whereas such financing for real estate of not more than three acres is more available with little or no equity in the borrower and on amortization terms over a long period of years and by the use of deeds of trust as herein provided; Now Therefore, the use of deeds of trust of estates in real property of not more than three acres as hereinafter provided is hereby declared to be the public policy of the State of Idaho. § 1, Chap. 181, Laws 1957.”
Roos v. Belcher, 79 Idaho 473, 321 P.2d 210 (1958)

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Source: Roos v. Belcher, 79 Idaho 473, 321 P.2d 210 (1958)

 

Ordinary Care
“The existence of a duty [of ordinary care] is a question of law over which this Court exercises free review. Freeman v. Juker, 119 Idaho 555, 556, 808 P.2d 1300, 1301 (1991). Every person, in the conduct of his business, has a duty to exercise ordinary care to ‘prevent unreasonable, foreseeable risks of harm to others.’ Sharp v. W.H.Moore Inc., 118 Idaho 297, 300, 796 P.2d 506, 509 (1990). In determining whether a duty will arise in a particular context, the Court has identified several factors to consider.
[T]he foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved. Rife v. Long, 127 Idaho 841, 846, 908 P.2d 143, 148 (1995) (quoting Isaacs v. Huntington Mem’l Hosp., 38 Cal3d 112, 211 Cal. Rptr. 356, 695 P.2d 653,658 (1985)).”
Turpen v. Granieri, 133 Idaho 244, 985 P.2d 669 (1999)

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Source: Turpen v. Granieri, 133 Idaho 244, 985 P.2d 669 (1999)

 

Unconscionable Contract
“‘For a contract or contractual provision to be voided as unconscionable, it must be both procedurally and substantively unconscionable.’ Lovey v. Regence BlueShield of Idaho, 139 Idaho 37, 42, 72 P.3d 877, 882 (2003) (citing Walker v. American Cyanamid Co., 130 Idaho 824, 948 P.2d 1123 (1997)). Procedural unconscionability relates to the bargaining process and is typically indicated by either lack of voluntariness or lack of knowledge:
Lack of voluntariness can be shown by factors such as the use of high-pressure tactics, coercion, oppression or threats short of duress…or by great imbalance on the parties’ bargaining power with the stronger party’s terms being nonnegotiable and the weaker party being prevented by market factors, timing, or other pressures from being able to contract with another party on more favorable terms or to refrain from contracting at all…. Lack of knowledge can be shown by lack of understanding regarding the contract terms arising from the use of inconspicuous print, ambiguous wording, or complex legalistic language…; the lack of opportunity to study the contract and inquire about its terms…; or disparity in the sophistication, knowledge, or experience of the parties,…Id.
Substantive unconscionability relates to the terms of the agreement. ‘The contract or provision is substantively unconscionable if it is a bargain that no person in his or her senses and not under delusion would make on the one hand and that no honest and fair person would accept on the other.’ Id.”
US Welding, Inc. v. BATTELLE ENERGY ALLIANCE, 728 F. Supp. 2d 1110 (D. Idaho 2010)

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Source: US Welding, Inc. v. BATTELLE ENERGY ALLIANCE, 728 F. Supp. 2d 1110 (D. Idaho 2010)

 

Help Needed In Idaho
We need Idaho judicial and non-judicial foreclosure cases. According to a market report released by Realty Trac, Idaho was among the top ten highest foreclosure rate states in the nation in 2010 (8th) and 2011 (5th). Their ranking appeared to drop down a little in 2012 to 14th in the nation. However, foreclosure reporting seemed to adjust a little as we moved into 2013, presumably because of the horrific publicity foreclosures were receiving. Short sales, deeds signed over in lieu of foreclosure, delayed foreclosures, nonjudicials, and other "foreclosure" type activity was not included in a lot of the statistical analysis we have reviewed. Thus, it is really hard to ascertain the true ranking of Idaho in relation to the national average. What we know is the non-judicial foreclosure attempt on our Idaho Ranch began in 2010, and the judicial foreclosure attempt was filed in 2011. Foreclosure proceedings were filed on one in two hundred ninety-four housing units in Idaho in the fall of 2012. It looks like that would be a higher average than the highest national foreclosure average in any state according to a December 2012 report (Florida had one in every three hundred thirty-eight). Time and innocent homeowners willing to tell their story will show whether there are actually any decreases in Idaho foreclosures. Our research indicates Idaho, and the attorneys handling Idaho foreclosures, push short sales, signing over deeds in lieu of foreclosure, and bankruptcy claims. Keep in mind these home losses are not even included in the foreclosure statistics. No matter how you look at it, the statistics and injustices are alarming. One injustice is one too many. None of this should ever have happened, and it is time for this to stop. Help us help others. If you are a foreclosure victim, or know someone who is, please send in your cases and your stories. We are looking for precedents that can be used to fight the bad guys. They are NOT too big to go to jail.