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Brief In Support of Motion For Leave To Amend Answer, Counterclaim, Third Party Complaint, and Demand For Jury Trial
Filed February 12, 2020

Brief In Support of Motion For Leave To Amend Answer, Counterclaim, Third Party Complaint, and Demand For Jury Trial


COMES NOW, Defendants, Nick and Donna Nickerson, submit this brief in support of our Motion for Leave to Amend Answer, Counterclaim, Third Party Complaint and Demand for Jury Trial. Opposing counsel has just disclosed a previous non-party, as a party of interest to this suit. Given the nature and length of this litigation, our repeated requests and motion for proof of authority and opposing counsels insistent and repeated claims that HSBC, not Wells Fargo, is the real party in interest to avoid oversight and quash our discovery attempts, this is a most extraordinary circumstance. In the interest of justice this Court must give leave to amend our answer and pursue our counterclaims to include our defenses and claims against Wells Fargo. We had previously been instructed that our claims and defenses against Wells Fargo had no merit in this lawsuit against HSBC. However, since Wells Fargo has now been disclosed as a previously concealed party, it is extremely prejudicial not to allow us to pursue all our claims and defenses. Furthermore, it is fraud on us and the court because opposing counsel has deceived, concealed, misrepresented and lied about the real party in interest from the beginning of this lawsuit despite our repeated attempts to discern the truth and ensure equal access to justice. We exercised due diligence and requested proof of authority on multiple occasions. This Court failed to enforce MCA § 37-61-402 which would have exposed the collusion, fraud, deception and prevented summary judgment from ever occurring. Such fair and just officiating would have also allowed us to present all our defenses and claims from the beginning of this suit. This prolonged deceit has caused years of loss, hardship, pain, and injustice which almost culminated in the unlawful sale of our property. It is within this Court’s discretion, authority, jurisdiction and responsibility to further justice, prevent injustice and ensure that cases are fairly tried upon the merits.

“It is well settled that a court has inherent authority to allow amendment or correction of pleadings at any stage of the proceeding. See Eberly v. Moore, 65 U.S. 147, 1860 WL 9942 (U.S. Tex. 1860) at *8 (‘The equitable jurisdiction of the courts of the United States as courts of law is chiefly exercised in the amendment of pleadings and proceedings in the court, and in the supervision of all the various steps in a cause, so that the rules and practices of the court shall be so administered and enforced as to prevent hardship and injustice, and that the merits of the cause may be fairly tried.’); Suffel v. Bosworth, 95 F.2d 494, 497 (9th Cir. 1938) (‘The court may likewise, in its discretion, and after notice to the adverse party, allow, upon such terms as may be just, an amendment to any pleading or proceeding in other particulars’).”
Fox v. County of Tulare, No. 1: 11-cv-0520 AWI SMS (E.D. Cal. May 8, 2014)

“Montana follows the general rule that leave to amend pleadings should be freely given when justice so requires (citation omitted). Refusal to permit an amendment offered at an opportune time and which should be made in the furtherance of justice is an abuse of discretion. (citation omitted)” Village Bank v. Cloutier, 249 Mont. 25, 813 P.2d 971 (1991)

“In this case, Ranch Recovery sought leave to amend its counterclaim as soon as newly discovered evidence came to light. We conclude that the interests of justice and judicial efficiency favor the amendment of Ranch Recovery’s pleadings so that all claims arising from the same transaction may be resolved in the same action. This policy, which underlies the rules of civil procedure, outweighs any prejudice to the Bank. Therefore, we conclude that the District Court abused its discretion when it failed to allow Ranch Recovery to amend its counterclaim.” First Sec. Bank v. Ranch Recovery Ltd., 1999 Mont. 43, 976 P.2d 956 (1999)


“It is not unreasonable that 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 (9th Cir. 2002)

“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)

“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)

 

Therefore, in the furtherance of justice, and in light of these extraordinary circumstances, and compelling new discovery and evidence coming to light out of the darkness of fraudulent concealment, we move the court grant our leave to amend. Oral argument requested.




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