MONTANA SUPREME COURT OPINION – May 3, 2016

“Specifically, the defendants argue in their briefs and argued at the summary judgment hearing in the District Court that they timely tendered to Wells Fargo the full amount of a delinquent payment, together with the fees assessed by the bank, but Wells Fargo refused to accept their payment. The District Court inquired of bank counsel at the hearing as to whether the attempt to pay should be considered a fact issue, but nonetheless concluded it was not. We conclude that the question of whether the Nickersons defaulted on their loan or the bank breached its obligation to accept a timely tendered late payment is a question of fact that must be explored further.
The Nickersons assert in their briefs on appeal that they were given only two days’ notice of the hearing on the motions for summary judgment, and were unable in that short time to gather and organize paperwork necessary to establish that the bank wrongfully rejected their tender of payment. They identified three persons during the District Court hearing who they maintain can verify their account of what occurred. In addition, in their brief in support of their motion to alter or amend the findings and conclusions of the court, the Nickersons asserted that they can present ‘letters, receipts, affidavits and testimony from the numerous Wells Fargo’s bankers, tellers, loan specialists and other representatives from Wells Fargo that attest to the prevention of performance actions of Wells Fargo.’ We conclude that the Nickersons should be given the opportunity to present verified and sworn evidence to establish that they tendered the full late payment plus fees demanded by Wells Fargo, and that Wells Fargo wrongly rejected their tender.”