First National Bank of Volga v. Kleinjan

418 N.W.2d 326, 1988 S.D. LEXIS 12, 1988 WL 3633

• Court: South Dakota Supreme Court
• Decided: January 20, 1988
• Docket: No. 15716
• Status: Published

Opinions

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.