First National Bank of Volga v. Kleinjan
418 N.W.2d 326
S.D.
1988
Check Treatment

Dissenting Opinion

WUEST, Chief Justice

(dissenting).

I dissent. The trial court entered summary judgment against Wilbur D. Kleinjan *327and Adriana Kleinjan, jointly and severally in the sum of $8,171.03. In addition, the Court entered summary judgment against defendant Wilbur D. Kleinjan in the sum of $59,070.45. The trial court further granted summary judgment ordering the property sold to satisfy the debt. The majority opinion concedes there are genuine issues “of material fact as to the amount of the judgment, set-offs, credits for payments, and damages.” (Emphasis added). No way should this summary judgment of foreclosure have been entered without determining the balance due on the debt which the mortgage secured. The damages claimed from deficiencies in the foreclosure sale of the property would not reduce the principal and the Court did not err by severing those issues from the foreclosure action. It seems fundamental to me a debtor should be given credit for his payments and any set-offs before judgment is entered against him and his property sold to satisfy that judgment.





Lead Opinion

SABERS, Justice.

Bank filed a mortgage foreclosure complaint against Wilbur and Adriana Klein-jan, other members of the Kleinjan family, the FmHA, and the county. See companion case 418 N.W.2d 327. Wilbur and Adriana filed an answer and counterclaim which exceeded fifty pages and admitted the execution of the notes and mortgages but asserted claims denominated as affirmative defenses of fraud, failure of consideration, and accord and satisfaction.

Bank moved for summary judgment on its complaint and on Kleinjans’ counterclaims. Kleinjans resisted by affidavit. After a hearing, the trial court granted the Bank summary judgment on the right to foreclose but not on the counterclaims.

We have reviewed Kleinjans’ claims and are satisfied that they do not raise genuine issues of material fact as to the right to foreclose. Wilson v. Great Northern Ry. Co., 83 S.D. 207, 157 N.W.2d 19 (1968). Their claims do raise genuine issues of material fact as to the amount of the judgment, set-offs, credits for payments, delays in crediting payments, excess interest charges, and damages, including damages resulting from claimed deficiencies in the sale of property. Trapp v. Madera Pacific, Inc., 390 N.W.2d 558 (S.D.1986). All of these claims remain to be determined as counterclaims.

Therefore, we affirm the summary judgment of foreclosure, the determination of priorities among secured parties, and the order of sale of mortgaged property. All other matters remain for resolution below.

MORGAN, HENDERSON and MILLER, JJ., concur. WUEST, C.J., dissents.