Summary 2008 WY 53

Summary of Decision issued May 9, 2008

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: PBS Enterprises, Inc. v. CWCapital Asset Management LLC

Citation: 2008 WY 53

Docket Number: S-07-0024; S-07-0251

Appeal from the District Court of Park County, the Honorable Dan Spangler, Judge.

Representing Appellant (Defendant): Timothy Charles Kingston, Graves, Miller & Kingston, PC, Cheyenne, Wyoming.

Representing Appellee (Plaintiff): Colin MacKenzie Simpson, Burg, Simpson, Eldredge, Hersh & Jardine, PC, Cody, Wyoming.

Facts/Discussion: PBS appealed the district court’s entry of summary judgment in favor of CWC. They also challenged the confirmation of the foreclosure sale which took place while the first appeal was pending. PBS owned and operated two hotels, one in Cody and another in Norfolk, Nebraska. CWC held PBS’s promissory note secured by the “Norfolk” mortgage. They also held promissory notes secured by two “Cody” mortgages on the Cody property. The Cody mortgages included cross-default provisions such that a default under the Norfolk mortgage was also a default under the Cody mortgage.
Default: It was undisputed that PBS defaulted on the Norfolk mortgage. PBS did not contest CWC’s foreclosure on that mortgage in Nebraska state court. Regardless of whether the parties agreed to change the payment schedule under the Cody mortgages, PBS’s default under the Norfolk mortgage also put it in default under the Cody mortgages. In the “Pre-Negotiation Agreement”, PBS conceded there were no modifications to the written agreement and confirmed that the written documents continued to define their legal and enforceable obligations.
Negligent or Intentional Misrepresentation: PBS complained that CWC misrepresented amounts due under the Cody mortgages. The Court’s review of the record showed that the Cody mortgage assigned the duty to provide the correct and accurate pay off amount to PBS, not CWC. Because PBS failed to establish that CWC had any duty to provide it with figures for the amount owed under the Cody mortgages, PBS could not sustain its intentional or negligent misrepresentation claims against CWC.
Confirmation of Foreclosure Sale: While PBS’s initial appeal was pending before the Court, CWC proceeded with the foreclosure sale. It then filed a motion asking the district court to confirm the foreclosure sale and enter a deficiency judgment against PBS. The district court retained the right and power to enforce its decree that CWC was entitled to foreclose against PBS even though that decision had been appealed. PBS did not seek to stay the district court’s order. Absent the stay, the district court did not exceed its authority to enforce the judgment.

Holding: The district court properly granted summary judgment to CWC in its foreclosure action against PBS and properly granted summary judgment against PBS’s counterclaims. The district court also had jurisdiction to confirm the foreclosure sale.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/5aydoj .

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