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Zavadil v. Rud

Supreme Court of North Dakota

February 18, 2014

Peter F. ZAVADIL and Kathleen A. Zavadil, Plaintiffs and Appellees
v.
Jon RUD and Hollie Rud, Defendants. Jon Rud, Appellant.

Page 903

[Copyrighted Material Omitted]

Page 904

Timothy G. Richard and Kasey D. McNary, Fargo, N.D., for plaintiffs and appellees; submitted on brief.

Jonathan T. Garaas, DeMores Office Park, Fargo, N.D., for appellant.

CROTHERS, Justice.

[¶ 1] Jon Rud appeals from a summary judgment awarding Peter and Kathleen Zavadil $33,490.19 in their action to recover on a promissory note. We affirm, concluding the district court did not err in ruling no genuine issues of material fact exist and the Zavadils are entitled to judgment as a matter of law.

I

[¶ 2] The Zavadils allege they loaned Jon and Hollie Rud $32,000 under an April 2008 verbal agreement. The loan was to be repaid when the Ruds sold their home or within six months. When the Ruds failed to repay the loan, the Zavadils agreed to renew and extend the original verbal loan agreement. On May 14, 2009, the Ruds executed a third mortgage on their property in favor of the Zavadils, and on July 10, 2009 the Ruds executed a promissory note for $32,000 plus interest due and payable to the Zavadils on July 15, 2010. The Ruds divorced in June 2009, between executions of the third mortgage and the promissory note.

Page 905

[¶ 3] The Zavadils sued the Ruds to foreclose the third mortgage after the Ruds failed to make all payments required under the promissory note. Wells Fargo Bank subsequently brought an action against the Ruds, the Zavadils and others to foreclose its first position mortgage on the property. The Zavadils admitted their third mortgage was subordinate to the bank's mortgage on the property and stipulated to dismissal of their foreclosure action against the Ruds.

[¶ 4] The Zavadils then commenced this action against the Ruds seeking repayment under the terms of the promissory note. The Zavadils stated in their complaint that they waived the right to foreclose the third mortgage granted by the Ruds to secure the note. A default judgment was entered against Hollie Rud for $36,068.79. Following discovery, the Zavadils moved for summary judgment against Jon Rud. The district court granted the motion, concluding no genuine issues of material fact existed and the Zavadils were entitled to judgment as a matter of law. Judgment was entered against Jon Rud in the amount of $33,490.19.

II

[¶ 5] Jon Rud argues the district court erred in granting summary judgment in ...


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