mk0boisedevcom5k1s01.kinstacdn.com · 2020-07-20 · INTHEDISTRICTCOURTOFTHEFOURTHJUDICIALDISTRICT OFTHESTATEOFIDAHO,INANDFORTHECOUNTYOFVALLEY TAMARACKMOUNTAINOPERATIONS, LLC,anIdaholimitedliabilitycompany,

IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT

OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF VALLEY

TAMARACK MOUNTAIN OPERATIONS,LLC, an Idaho limited liability company, Case No. CV43-19-170

Plaintiff, MEMORANDUM DECISION AND ORDERON CROSS-MOTIONS FOR SUMMARY

vs. JUDGMENT

IDAHO-PACIFIC INVESTMENTS LLC, an

Idaho limited liability company,

Defendant.

The defunct Osprey Meadows Golf Course sits 0n multiple parcels of land not currently

under common ownership. Defendant Idaho-Pacific Investments LLC owns most of them, and

Plaintiff Tamarack Mountain Operations, LLC (“TMO”) owns or leases the rest. TMO claims,

though, t0 have—and to have validly exercised—an option to purchase Idaho—Pacific’s parcels.

TMO filed this action to establish as much. The parties’ cross-motions for summary judgment

were argued and taken under advisement on July 13, 2020. For the reasons that follow, the Court

concludes that the option terminated years ago. Consequently, Idaho-Pacific prevails.

I.

BACKGROUND

In its operating agreement, executed in December 2004, West Mountain Golf, LLC

(“WMG”) granted one of its members, Tamarack Resort LLC (“TR”), an option (“Option”) to

buy the “Golf Property” from WMG. (Hopkins Decl. Ex. A, at § 5.7.) The operating agreement

defined “Golf Property” as “the golf course and Clubhouse at the Tamarack Resort located in

Donnelly” but gave n0 legal description. (Id. Ex. A, at § 3.1.) This golf course was the Osprey

MEMORANDUM DECISION AND ORDER ON CROSS~MOTIONS FOR SUMMARY JUDGMENT ~I

07/15/2020 14:05:56

White, Candice

Filed:Fourth Judicial District, Valley CountyDouglas A. Miller, Clerk of the CourtBy: Deputy Clerk -

Meadows Golf Course, (Mowitz Decl. 1] 4), which is no lqnger operating. As WMG’S operating

agreement mentioned, (Hopkins Decl. Ex. A, at § 1.16), WMG also had agreed to lease the Golf

Property t0 TR, (May Decl. Ex. 6). In any event, nothing was contemporaneously recorded in

Valley County to notify the public 0f the Option. But on May 19, 2006, about a year and a half

later, a Notice of Option to Purchase Real Property (as later amended, “Notice of Option”) was

executed by WMG and TR and recorded in Valley County, giving record notice of the Option

and supplying the legal description ofthe Golf Property that had been missing from WMG’s

operating agreement} (Wilson Decl. Ex. A.)

The Notice 0f Option came about because TR was receiving a massive loan from Credit

Suisse, as shown by two other documents recorded within minutes after the Notice of Option.

One was a collateral assignment of the Option by TR to Credit Suisse (“Option Assignment”).

(Id. Ex. C, at §§ 1——2.) Under the Option Assignment, ifTR defaulted on the loan, Credit Suisse

could exercise the Option, but ifTR repaid the loan, the collateral assignment would become

“null and void,” restoring the Option to TR. (Id. Ex. C, at §§ 3, 7.) The other document was a

mortgage (“TR Mortgage”). (Id. Ex. B.) The property pledged to Credit Suisse in the TR

Mortgage included TR’s leasehold interest in the Golf Property, its fee interest in other property

(“TR Property”), and its “other interests 0f every kind and character” in the Golf Property and

the TR Property. (Id. Ex. B, at 1—3 & Exs. AwB.)

By the time the Notice of Option was recorded, WMG had mortgaged the Golf Property.

(Id. Ex. J, at 1] 4.) That mortgage (“WMG Mortgage”) was granted t0 a lender other than Credit

Suisse and recorded on September 20, 2005, (id. ), months before the Notice of Option.

I

An Amended Notice of Option was recorded on August 16, 2006, t0 correct an error in the

original’s legal description. (Wilson Decl. Ex. A.)

MEMORANDUM DECISION AND ORDER ON CROSS—MOTIONS FOR SUMMARY JUDGMENT - 2

TR defaulted on the TR Mortgage, prompting Credit Suisse t0 file a foreclosure action on

March 11, 2008. (Compl. 1] 28; Answer 1] 28; Wilson Decl. Ex. D, at 3.) In an order entered in

that action 0n August 5, 201 0, the court ruled that TR’S leasehold interest in the Golf Property

terminated effective February 19, 2010, extinguishing Credit Suisse’s lien 0n TR’s leasehold

interest in the Golf Property, leaving it with no “mortgage, lien or encumbrance in 0r on WMG’S

fee title interest in [the Golf Property].” (Wilson Decl. EX. G, at 5.) The order then said that

“[n]othing contained herein shall affect [Credit Suisse’s] rights, security and interests in the

[Option Assignment] . . . and [Credit Suisse] retains any and all interests therein,” (id. ), failing to

note or explain the evident contradiction between that statement and the immediately preceding

ruling that Credit Suisse had no encumbrance of WMG’S fee interest in the Golf Property.2 The

order also said, without explanation, that the Option Assignment was “included as part of the

Collateral” granted to Credit Suisse in the TR Mortgage. (Id. Ex. G, at 3.)

At some point, Retirement Security Plan and Trust (“RSPT”) succeeded to the rights of

WMG’S original mortgage lender. (Compl. 1] 36; Answer 1] 36; Wilson Decl. Ex. J, at 1] 1.)

WMG also defaulted on the WMG Mortgage, prompting RSPT to file a foreclosure action.

Judging by its case number, that action was filed in 2013, and Credit Suisse was among the

defendants. (Wilson Decl. Ex. J.) On December 30, 2013, RSPT and Credit Suisse filed a

stipulation to the entry of a judgment of foreclosure and order for the Golf Property’s sale,

complete with a proposed judgment and order of sales During the negotiations leading t0 the

stipulation, RSPT’S counsel took the position that the Option was junior to the WMG Mortgage,

2

An option seems to be an encumbrance. See Encumbrance, Black’s Law Dictionary, (1 1th ed.

2019) (defining “encumbrance” as “[a] claim or liability that is attached to property or someother right and that may lessen its value, such as a lien or mortgage; any property right that is not

an ownership interest”).

3

The Court takes judicial notice of the stipulation, a copy of which is attached to this decision.

MEMORANDUM DECISION AND ORDER ON CROSS~MOTIONS FOR SUMMARY JUDGMENT - 3

without resistance from Credit Suisse’s counsel. (Angstman Dec]. Ex. 1.) Credit Suisse’s

counsel offered to include a provision in the proposed judgment that “Credit Suisse does not

have a mortgage, lien or encumbrance in or on WMG’S fee title interest in the [Golf Property].”

(Id. Ex. 3.) The proposed judgment included such a provision. (Wilson Decl. Ex. J, at 1] 10.) It

was entered, without apparent change, on January 2, 2014. (Id. Ex. J, at 1.)

The judgment (“RSPT Judgment”) doesn’t mention the Option. In its paragraph 6,

however, it does say the impending foreclosure sale “shall not, and is not intended to, affect the

valid, perfected lien and security interest 0f Credit Suisse . . . in the real and personal property

(the ‘Tamarack Property’) described in, and by virtue 0f, [the TR Mortgage].” (Id. Ex. J, at fl 6.)

This action centers on whether paragraph 6 preserved the Option.

At the foreclosure sale held on December 29, 2016, RSPT bought the Golf Property with

a credit bid 0f $3 million. (May Decl. Ex. 2.) Idaho-Pacific later succeeded to RSPT’S rights in

the Golf Property and currently owns most of it (fifteen holes of the defunct Osprey Meadows

Golf Course), with TMO having acquired or leased the rest of the Golf Property in other

transactions. (Id. Ex. 4; Mowitz Decl. 1H] 4&5.) This decision calls the portion 0f the Golf

Property that is currently owned by Idaho-Pacific the “Idaho-Pacific Property.”

At some point after the RSPT Judgment was entered, the Option underwent a series of

assignments: first from Credit Suisse to New TR Acquisition Company, LLC; then to Tamarack

Municipal Association, Inc.; then to Tamarack Homeowners Acquisition Company, LLC; and,

finally, to TMO. (Wilson Decl. Ex. I; Mowitz Ex. B.) The TMO assignment happened on

December 3, 201 8, (Mowitz Ex. B). TMO tried to exercise the Option a week later. (Id. 1] 7.)

But Idaho-Pacific refilsed to sell the Idaho-Pacific Property, contending the Option didn’t

survive the foreclosure sale directed by the RSPT Judgment.

MEMORANDUM DECISION AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT - 4

As a result, TMO filed this action, seeking declaratory relief t0 the effect that the Option

is valid and has been validly exercised, as well as an order requiring specific performance of the

Option. Idaho-Pacific moved for an I.R.C.P. 12(b)(6) dismissal. The Court denied that motion

but, in doing so, noted some concerns about TMO’s claim that the RSPT Judgment preserved the

Option, hoping to help the parties frame their arguments in future motions. (Mem. Decision &

Order Denying Mot. Dismiss 9—1 1.)

A bench trial is scheduled t0 begin on September l4, 2020, (Scheduling Order 11 1), but

the parties have filed the seemingly inevitable cross-motions for summary judgment. Among the

issues addressed in the motions is whether the RSPT Judgment preserved the Option. As already

noted, they were argued and taken under advisement on July 13, 2020. Three noteworthy

developments occurred during the hearing. First, both sides agreed that there is no genuine

factual dispute that prevents the Court from determining as a matter of law whether or not the

RSPT Judgment preserved the Option. Second, TMO’s counsel conceded, t0 his credit, that

TMO’s claims fail if the RSPT Judgment didn’t preserve the Option. And, third, responding an

inquiry the Court made at the end 0f the hearing, TMO’s counsel gave TMO’s interpretation of

paragraph 6 of the RSPT Judgment: the “valid, perfected lien and security interest of Credit

Suisse” refers n_ot to the Option but Credit Suisse’s lien on it, and “the real and personal property

(the ‘Tamarack Property’) described in, and by virtue 0f, [the TR M0rtgage]” refers to the

Option (among other collateral). In other words, according to TMO, paragraph 6, as it pertains

to the Option, provides that the impending foreclosure sale “shall not, and is not intended t0,

affect the valid, perfected lien and security interest of Credit Suisse . . . in the [Option] described

in, and by virtue of, [the TR Mortgage].” (Wilson Decl. Ex. J, at Tl 6.) In any event, the motions

are ready for decision.


II.

LEGAL STANDARD

Summary judgment is proper “if the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter 0f law.” I.R.C.P. 56(a).

To obtain summary judgment against a claim 0r defense of the nonmovant, the movant

must show that the evidence doesn’t suppofl at least one element of the challenged claim or

defense. E.g., Holdaway v. Broulim ’s Supermarket, 158 Idaho 606, 61 1, 349 P.3d 1197, 1202

(201 5). The movant may do so by offering evidence disproving that element, by demonstrating

that the nonmovant is unable to offer evidence proving it, or in both of those ways. Id.; see also

I.R.C.P. 56(c)(1). The movant then is entitled to summary judgment unless the nonmovant

presents “specific facts” showing “a genuine issue for tria .” Haight v. Idaho Dep ’t 0fTransp,

163 Idaho 383, 387, 414 P.3d 205, 209 (2018).

To obtain summary judgment on its own claim or defense, the movant must cite

particular parts 0f the record for proof 0f the facts that are essential to the claim or defense.

I.R.C.P. 56(c)(1)(A). If the movant does so, the burden shifts to the nonmovant to prove that a

genuine factual dispute must be resolved before judgment can be awarded to the movant. E. g. ,

Boise Mode, LLC v. Donahoe Pace & Partners Ltd, 154 Idaho 99, 104, 294 P.3d 1111, 1116

(201 3). To carry that ultimate burden, the nonmovant “may not rest upon mere allegations in the

pleadings, but must set forth by affidavit specific facts showing there is a genuine issue for trial.”

Id. (quotation marks omitted).

In either case, the record must be construed in the light most favorable to the nonmovant.

E.g., id; Holdaway, 158 Idaho at 610, 349 P.3d at 1201. But “[a] mere scintilla of evidence or

'only slight doubt as to the facts is not sufficient” for the nonmovant to avoid summary judgment.

E.g., Holdaway, 158 Idaho at 610, 349 P.3d at 1201 (quoting AED, Inc. v. KDC Invs., LLC, 155

MEMORANDUM DECISION AND ORDER ON CROSS-MOTlONS FOR SUMMARY JUDGMENT ~ 6

Idaho 159, 163, 307 P.3d 176, 180 (2013)). And, absent a jury demand, the trial court “is

entitled to arrive at the most probable inferences based upon the undisputed evidence properly

before it and grant the summary judgment despite the possibility of conflicting inferences.” J.R.

Simplot C0. v. Bosen, 144 Idaho 61 1, 615, 167 P.3d 748, 752 (2006) (quoting Shawver v.

Huckleberry Estates, L.L.C., 140 Idaho 354, 360—61, 93 P.3d 685, 691—92 (2004)).

III.

ANALYSIS

Idaho is a “race—notice” jurisdiction, meaning the order of recording normally determines

the relative priority of competing interests in real property. I.C. § 55-812. The WMG Mortgage

was recorded in 2005, (Wilson Decl. Ex. J, at 1] 4), and the Option wasn’t recorded until 2006,

(id. Ex. A), so the WMG Mortgage had priority over the Option. By operation of law, then, the

foreclosure of the WMG Mortgage would terminate the Option. See, e.g., 2 Michael T. Madison

et al., Law ofReal Estate Financing § 12:22, Westlaw (database updated July 2020) (“[T]he

general rule at foreclosure is that the mortgagee foreclosing its mortgage can terminate all

interests junior t0 the mortgage[.]”); 55 Am. Jur. 2d Mortgages § S92, Westlaw (database

updated May 2020) (“When . . . junior encumbrancers are made parties to a foreclosure suit, they

are effectively cut off, for the purchaser at the foreclosure sale acquires the title as it stands at the

date of the mortgage.”). That is, the foreclosure of the WMG Mortgage would terminate the

Option unless the RSPT Judgment provided otherwise. The Court tentatively so held in a prior

order. (Mem. Decision & Order Denying Mot. Dismiss 8.) The Court finally so holds now, as

TMO’s summary-judgment briefs offer no basis to conclude otherwise and, to his credit, TMO’s

counsel conceded the point during the hearing. The key issue, then, is whether the RSPT

Judgment preserved the Option. If not, then TMO’S claims fail.


RSPT and Credit Suisse stipulated t0 the entry and form 0f the RSPT Judgment. Hence,

the RSPT Judgment, though a court order, reflects the terms of a contract between RSPT and

Credit Suisse. So, the Court will interpret the RSPT Judgment as it would interpret a contract.

T0 that end, the Court recites some basic principles of contract interpretation:

The purpose 0f interpreting a contract is to determine the intent of the

contracting parties at the time the contract was formed. T0 accomplish this, the

contract is to be viewed as a whole. The interpretation of a contract begins with

the language of the contract itself. An unambiguous contract will be given its

plain meaning. A contract is ambiguous if it is reasonably subject t0 conflicting

interpretations.

Caldwell Land & Cattle, LLC v. Johnson Thermal Sys., Ina, 165 Idaho 787, 796, 452 P.3d 809,

818 (2019) (internal citations andquotation marks omitted). “There are two types 0f ambiguity,

patent and latent. Thurston Enters., Inc. v. Safeguard Bus. Sys., Ina, 164 Idaho 709, 71 8, 435

P.3d 489, 498 (2019). “A patent ambiguity is an ambiguity clear from the face 0f the instrument

in question.” Id. “On the other hand, ‘a latent ambiguity exists where an instrument is clear on

its face, but loses that clarity when applied t0 the facts as they exist.” Id. (brackets omitted)

(quoting Knipe Land C0. v. Robertson, 151 Idaho 449, 455, 259 P.3d 595, 601 (201 1)). If a

contract is patently ambiguous, parol evidence may be considered in determining the parties’

intent. E.g., Wolford v. Montee, 161 Idaho 432, 441, 387 P.3d 100, 109 (2016). And, as to latent

ambiguities, “Idaho law permits ‘first, the introduction of extrinsic evidence to show that the

latent ambiguity actually existed; and, second, the introduction of extrinsic evidence t0 explain

what was intended by the ambiguous statement.” Rangen, Inc. v. Idaho Dep ’t 0f Water Res. ,

159 Idaho 798, 807, 367 P.3d 193, 202 (2016) (quoting Snoderly v. Bower, 30 Idaho 484, 487,

166 P. 265, 265 (1917)).

In its paragraph 15, the RSPT Judgment says that upon completion of the impending

foreclosure sale, “all junior interests in, or junior liens on, the Property shall be terminated and


foreclosed,” except as provided in certain other paragraphs of the RSPT Judgment, including

paragraph 6. (Wilson Decl. Ex. J, at 1] 15.) Again, the “Property” includes the Golf Property.

The Option, as already discussed, was a junior interest in the Golf Property. The general rule of

paragraph 15 is that junior interests in the Golf Property terminated upon completion of the

foreclosure sale. The Option isn’t mentioned in any paragraph of the RSPT Judgment—not even

paragraph 6, on which TMO’s preservation argument depends. Paragraph 6 merely provides that

the foreclosure sale wouldn’t affect Credit Suisse’s “valid and perfected lien and security interest

. . . in the real and personal property (the ‘Tamarack Property’) described in, and by virtue of,

[the TR Mortgage].” (Id. Ex. J, at 1] 6.) Although the TR Mortgage, as discussed later, defines

the collateral so broadly as to include the Option, it doesn’t mention the Option or even suggest

its existence. (See id. Ex. B.) So, considering gn_ly the text of the RSPT Judgment and the other

documents mentioned in it, including the TR Mortgage, the general rule of paragraph 15 applies,

not any of the exceptions. The RSPT Judgment isn’t patently ambiguous 0n that point.

Consequently, TMO’s argument depends on the existence of a latent ambiguity. Again,

“a latent ambiguity exists where an instrument is clear on its face, but loses that clarity when

applied t0 the facts as they exist,” Thurston Enters. , 164 Idaho at 718, 435 P.3d at 498 (brackets

omitted) (quoting Knipe, 151 Idaho at 455, 259 P.3d at 601), and extrinsic evidence may be

taken to show both the existence of a latent ambiguity and how to resolve it, Rangen, 159 Idaho

at 807, 367 P.3d at 202. The extrinsic evidence in the record includes the Notice of Option and

the Option Assignment, which evidence, respectively, the existence of the Option and its

assignment by TR to Credit Suisse as loan collateral. (Wilson Decl. Exs. A, C.) Taking them

into account, the Court sees a potential latent ambiguity as to whether the RSPT Judgment

preserved the Option.


In its paragraph 6, the RSPT Judgment provides that the impending foreclosure sale

wouldn’t affect Credit Suisse’s “valid and perfected lien and security interest . . . in the real and

personal property (the ‘Tamarack Property’) described in, and by virtue 0f, [the TR Mortgage].”

(Id. Ex. J, at 1} 6.) Through the TR Mortgage, TR pledged t0 Credit Suisse its fee interest in the

TR Property, its leasehold interest in the Golf Property, and its “other interests of every kind and

character” in the TR Property and the Golf Property. (Id. Ex. B, at 1—3 & Exs. A—B.) The

quoted phrasing is broad enough, TMO contends, t0 have encompassed TR’s contingent interest

in the Golf Property via the Option, despite the Option’s failure to garner a mention in the TR

Mortgage. The Court agrees with TMO in that respect. The Option was part 0f the collateral

granted to Credit Suisse in the TR Mortgagef This conclusion isn’t undermined by TR also

having granted Credit Suisse rights in the Option through the Option Assignment. That separate

collateral instrument that doesn’t somehow operate as a limitation on the breadth 0f the collateral

clauses in the TR Mortgage.

TMO says the Option, having been part of the collateral granted in the TR Mortgage, is

part of the “Tamarack Property,” as that term is used in paragraph 6, so paragraph 6 preserved

Credit Suisse’s lien on the Option. That’s a reasonable interpretation of paragraph 6, read in

isolation. A countervailing interpretation is this: even if Credit Suisse obtained its lien on the

Option “by virtue of” the TR Mortgage, the Option—unmentioned in the TR Mortgage—wisn’t

“described in” it, so the lien 0n the Option doesn’t satisfy all of paragraph 6’s criteria for

preservation. This interpretation is more faithful to paragraph 6’s literal language than TMO’S,

which glosses over whether the Option can be said to be “described in” the TR Mortgage despite

4

Given this conclusion, the Court need not consider TMO’s argument that the order issued onAugust 5, 2010, in the Credit Suisse foreclosure litigation precludes Idaho—Pacific from

contending that the Option wasn’t part of the collateral granted in the TR Mortgage.


inarguably not having been mentioned in its So, if the outcome depends on the most literal

reading of the RSPT Judgment and the documents méntioned in it, considered in light of only the

Notice of Option and Option Assignment as extrinsic evidence, TMO loses.

That is so for a second reason. As already noted, paragraph 15 of the RSPT Judgment

says that upon completion of the impending foreclosure sale, “all junior interests in, 0r junior

liens on, the Property shall be terminated and foreclosed,” except as provided in certain other

paragraphs of the RSPT Judgment, including paragraph 6. (Id. Ex. J, at 1] 15.) The “Property”

includes the Golf Property. The Option was a junior interest in the Golf Property. Paragraph 6

didn’t stop the general rule of paragraph 15 from terminating the Option. That’s because

paragraph 6 didn’t preserve the Option itself, even if it purports to preserve Credit Suisse’s lien

‘on the Option. In other words, the Option is a junior interest in the Golf Property, and Credit

Suisse received, by virtue 0f the TR Mortgage (and the Option Assignment) a lien 0n that junior

interest. An attempt to preserve the lien on the junior interest, assuming paragraph 6 makes one,

is ineffectual Without preservation ofthe junior interest itself. Paragraph 6, read literally, doesn’t

take the necessary first step of preserving the Option.

TMO’S interpretation may, however, be sufficiently reasonable, despite being less

defensible than these competing interpretations, to warrant the conclusion that, after the Notice

5

The Golf Property, by contrast, was “described in” the TR Mortgage. (Wilson Decl. Ex. B, at 1

& Ex. B.) But Credit Suisse’s lien on TR’S leasehold interest in the Golf Property had

terminated years before the RSPT Judgment was negotiated, (id. Ex. G, at 5). So, the term

“Tamarack Property,” as used in paragraph 6, may not have been intended to encompass the Golf

Property. This is how TMO gets around the concerns noted in the Court’s prior decision,

centering 0n the RSPT Judgment being internally inconsistent if the term “Tamarack Property”

encompasses the Golf Property. (Mem. Decision & Order Denying Mot. Dismiss 9-«1 1.) In any

event, while the Court now concludes that the RSPT Judgment didn’t preserve the Option, as the

Court’s prior decision suggested may be the case, the rationale isn’t the same now as then.

MEMORANDUM DECISION AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT - 1 1

of Option and Option Assignment are taken into account, the RSPT Judgment is latently

ambiguous as to whether it preserved the Option.

The more extrinsic evidence is considered, the weaker TMO’S preservation argument

gets. As already discussed, because the Option is junior to the WMG Mortgage, the foreclosure

of the WMG Mortgage would terminate the Option by operation of law. Sure, the RSPT

Judgment, entered by agreement 0fRSPT and Credit Suisse, could’ve overridden the outcome

destined by law. Had they wanted to do so, RSPT and Credit Suisse should’ve taken care to

specify in their proposed form ofjudgment that the Option was being preserved. By contrast,

had they not wanted to do so, they need not have mentioned the Option. The non-mention of the

Option, then, is a powerful indicator that they didn’t intend to preserve the Optionf And that

already-powerful inference is reinforced by the extrinsic evidence ofthe negotiations between

RSPT and Credit Suisse leading to the entry ofthe RSPT Judgment.

During the negotiations, RSPT’S counsel took the position that the Option was junior t0

the WMG Mortgage, and Credit Suisse’s counsel expressly declined to challenge that position.

(Angstman Decl. Ex. 1.) Further, Credit Suisse’s counsel offered to include a provision in the

RSPT Judgment that “Credit Suisse does not have a mortgage, lien or encumbrance in or on

WMG’s fee title interest in the [Golf Property].” (Id. Ex. 3.) Paragraph 10 ofthe RSPT

6During the hearing, TMO’S counsel, responding to an inquiry from the Court, argued that the

non-mention 0fthe Option stemmed from a desire for paragraph 6 not to fail to mention any ofthe collateral granted in the TR Mortgage in which Credit Suisse still had a valid, perfected lienor security interest. In other words, the argument was that the drafting of paragraph 6 reflects asacrifice of specificity in service of ensuring breadth. The problem With this argument is thatbreadth need not be sacrificed to achieve specificity; a simple clause could’ve been inserted to

say that the Option was among the interests unaffected by the impending foreclosure sale.

Careful lawyers—and good ones seem to have been involved in negotiating the terms of theRSPT Judgment—uwould’ve specifically mentioned the Option in paragraph 6 had the partiesintended to preserve it when the law, left to its own devices, would’ve terminated it.


Judgment includes a provision to that effect: except as provided in certain other paragraphs,

“Credit Suisse . . . [has] no right, title 0r interest in and/or claim to the Property, and, to the

extent any such right, title, interest and/or claim ever existed or was asserted, any such right,

title, interest and/or claim is extinguished.” (Wilson Decl. Ex. J, at 11 10.) As footnote 2, infia,

suggests, the Option seems to have encumbered WMG’s fee interest in the Golf Property. In any

event, among the other paragraphs listed in paragraph 10, only paragraph 6 arguably could have

the effect of preserving the Option. And, as already explained, paragraph 6 doesn’t even

mention the Option or otherwise suggest a deliberate effort to preserve it. The picture painted by

the negotiations is that Credit Suisse either didn’t care t0 preserve the Option or, if it did care,

knew it didn’t have a leg t0 stand on.

Also important is what’s missing from the negotiations: evidence of a reason for RSPT

to forgo its right to terminate the Option by foreclosing on the WMG Mortgage. The evidence

shows that RSPT wasn’t oblivious to having that right. So why would RSPT agree to give it up?

What did Credit Suisse offer in return? TMO offers no answers. The lack 0f answers reveals the

bankruptcy of its position that the Option was intentionally preserved.

Finally, another indicator that paragraph 6 doesn’t reflect an intent to preserve the Option

can be found in the fact that, a few years before the negotiations leading to the RSPT Judgment,

a ruling was made in the Credit Suisse foreclosure litigation that TR’s leasehold interest in the

Golf Property was terminated, thus terminating Credit Suisse’s lien on TR’s leasehold interest.

(Id. Ex. G, at 5.) The TR Mortgage granted that lien. (Id. Ex. B, at 1—3 & Ex. B.) Had it not

done so, TMO would have no basis to argue that the collateral granted in the TR Mortgage

encompasses the Option. A few years afier the TR Mortgage had stopped effectively conveying

a lien on a leasehold interest in the Golf Property, RSPT and Credit Suisse might not have been

MEMORANDUM DECISION AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT - l3

attuned t0 the fiotion that the TR Mortgage granted a lien on the Option; as already discussed, it

did so only indirectly, without mentioning the Option. (See id.) They were more likely aware,

however, of the standalone document—wthe Option Assignment, (id. Ex. C}——that assigned the

Option to Credit Suisse. Indeed, the order issued in the Credit Suisse foreclosure litigation

concerning the termination of TR’s leasehold interest in the Golf Property, along with the

attendant termination of Credit Suisse’s lien 0n the leasehold interest, specifically noted that the

Option Assignment was unaffected by the termination. (Id. Ex. G, at 5.) Yet the Option

Assignment, like the Option, garnered no mention in the RSPT Judgment.

In sum, considering only the text of the RSPT Judgment and the documents mentioned in

it, the RSPT Judgment cannot be interpreted t0 preserve the Option, which was a junior interest

within paragraph 15’s general rule of termination ofjunior interests. Broadening the inquiry to

include all extrinsic evidence in the record, perhaps the RSPT Judgment suffers from a latent

ambiguity as to whether it preserved the Option. But even so, the extrinsic evidence

overwhelmingly supports the inference that RSPT and Credit Suisse didn’t intend their

stipulation to the terms of the RSPT Judgment t0 have the effect of preserving the Option. As

the trier of fact in this action, the Court is empowered to draw that inference now, on summary

judgment. The Court does so. Summary judgment is granted to Idaho-Pacific.

Accordingly,

IT IS ORDERED that Idaho-Pacific’s motion for summary judgment is granted.

IT IS FURTHER ORDERED that TMO’s motion for summary judgment is denied.

Jason D. Scott

DISTRICT JUDGE

MEMORANDUM DECISION AND ORDER 0N CROSS-MOTIONS FOR SUMMARY JUDGMENT - 14

Signed: 7/15/2020 01:52 PM

CERTIFICATE OF SERVICE

I certify that on,I served a copy of this document as follows:

Kenneth C. HowellBrent R. WilsonHAWLEY TROXELL ENNIS & HAWLEY [email protected]

[email protected]

J. Justin MayANGSTMAN [email protected]

PHIL McGRANEClerk 0f the District Court

By:

Deputy Court Clerk


DOUGLAS A. MILLER

July 15, 2020

Signed: 7/15/2020 02:06 PM

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Thomas J. AngstmanMatthew T. Christensen

ANGSTMAN JOHNSON3649 N. Lakeharbor LaneBoise, Idaho 83703Telephone: (208) 384-8588Facsimile: (208) 853-0! 17

Angstman ISB: 5738Christensen ISB: 7213

Attomey for Plaintiff



RETIREMENT SECURITY PLAN ANDTRUST,

Plaintiff,

vs.

GREEN VALLEY HOLDINGS, LLC. an

Idaho limited liability company; WESTMOUNTAIN GOLF, LLC, a Delaware limited

liability company; CREDIT SUISSE AG,CAYMAN ISLANDS BRANCH (fka Credit

Suisse, Cayman Islands Branch); JAMES W.FLETCHER, an individual; CERTAIN REALPROPERTY LOCATED IN VALLEYCOUNTY, IDAHO; DOES 1-50; DOES 51-

100; DOES 101-120,

Defendants.

Case No. CV-ZO] 3-203C

AMENDED STIPULATION BETWEENPLAINTIFF AND DEFENDANT CREDITSUISSE AG, CAYMAN ISLANDS BRANCH.TO ENTRY 0F JUDGMENT. DECREE OFFORECLOSURE AND ORDER OF SALE

AMENDED STIPULATXON BETWEEN PLAINTIFF AND DEFENDANT CREDIT SUISSEAG, CAYMAN ISLANDS BRANCH, TO ENTRY OF JUDGMENT, DEGREE OFFORECLOSURE AND ORDER OF SALE ~— PAGE I

Matter: 8S7 f -007

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213896£ 51m AUSTIN PAGE 82/82

COME NOW the Plaintiff, Retirement Security Plan and Trust, by and through its

counsel of maul, ANGSTMAN JOHNSON, and the Defendant, Credit Suisse AG, Cayman

Islands Branch, by and through its counsel of record. SIDLEY AUSTIN, LLP. and hereby

stipulate to the entty of a Judgment, Decree of Foreclosure and Order of Sale in the above-

entitled matter in the form attached hereto as Exhibit I. Credit Suissds consent to this

Stipulation is conditioned upon the issuance of the Comfort Order (described in paragraph t9 of

the Judgment) prior to the conduct ofthc Sale (described in paragraph 1 I ofthe Judgment).

DATED this L6 day ofDecember, 20! 3. WMATTHE . [-1 STBNSENAttorney for Plaintiff

m/DATED $3475 day or December, 2013.

Attome Defendant Credit Suisse AG,Cayman Islands Branch

AMENDED STIP'ULATION BETWEEN PLAINTIFF AND DEFENDANT CREDIT SUISSE

AG.CAYMAN ISLANDS BRANCH, T0 ENTRY OF JUDGMENT, DEGREE 0F

FORECLOSURE AND ORDER OF SALE -PAGE 2

Malta: 8571-007

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I HEREBY CERTIFY that on this Z5 day of December, 2013,I caused to be served a

true copy of the foregoing docmnent by the method indicated below, and addressed to those

parties marked served below:

§___.erved Emm Defendant

m Defendant

hV Defendant7

$ Defendant

Counsel Means of Service

RandauA. Peterman $115. Mail, Postage PaidMofl'att Thomas101 s. Capitol 31m, 10thFloor D Hand Delivered

P.o. Box 829

Boise, 1D 83701-08 D Fax Tmmittal(208) 335-5334

Elizabeth w. Walker fins. Mail, Postage Paid

Sidley Austin LLP555 w. Fiflh St, Suite 4000 D Hand DeliyemdLos Angeles, CA 90013

(213) 896-6600 D Fax Transmittas

James w. Fletcherm fins. Mail, Postage Paid

9.0. Box 298spenyvine, VA 22740 D Hand Delivered

(540) 937-3688

E] Fax Transmittal

Christopher C. Burke $US. Mail, Postage Paid

Gteener Burke Shoemaker Obcrrccht,

P.A. U Hand Delivered

950 w. Bannock St, suite 950

Boise, ID 83702 D Fax Transmittal

(208) 319.2601

NdxgwaMatthew T. Christensen

AMENDED STIPULATION BETWEEN PLAINTIFF AND DEFENDANT CREDIT SUISSEAG, CAYMAN ISLANDS BRANCH, TO ENTRY 0F JUDGMENT, DEGREE OFFORECLOSURE AND ORDER OF SALE ~ PAGE 3Mum: 8571007

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EXHIBIT 1

AMENDED STIPULATION BETWEEN PLAINTIFF AND DEFENDANT CREDIT SUISSEAG, CAYMAN ISLANDS BRANCH, TO ENTRY OF JUDGMENT, DECREE OFFORECLOSURE AND ORDER OF SALE -— PAGE 4Matter: 8571-007

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Matthew T. Christensen

ANGSTMAN JOHNSON3649 N. Lakeharbor LaneBoise. Idaho 83703Telephone: (208) 384-8588Facsimile: (208) 853-0] 17

Christensen ISB: 7213

Attorney for Plaintiff



RETIREMENT SECURITY PLAN ANDTRUST,

Plaintiff,

VS.

GREEN VALLEY HOLDINGS, LLC, an


liability company; CREDIT SUISSE AG,CAYMAN ISLANDS BRANCH (fl(a Credit

Suisse, Cayman Islands Branch); JAMES W.FLETCHER, an individual; CERTAIN REALPROPERTY LOCATED IN VALLEYCOUNTY, IDAHO; DOES 1-50; DOES 5!-

IOO; DOES lOl-IZO,

Defendants.

Case No. CV-20] 3-203C

JUDGMENT, DEGREE OF FORECLOSUREAND ORDER OF SALE

JUDGMENT, DEGREE OF FORECLOSURE AND ORDER OF SALE ~PAGE 1

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The Court having reviewed the pleadings on file in this action, and good cause appearing;

IT IS HEREBY ORDERED AND THIS DOES ORDER:

l. Plaintiff Retirement Security Pian and Trust (‘Plaintiffi is the current owner 0f the

Loan Documents (as described in paragraphs 12 through 20 of the First Amended Complaint),

with the right to pursue collection and/or foreclosure of the same.

2. Defendants Green Valley Holdings, LLC (GVH’) and James W. Fletcher

(“Fletcher”). and their respective successors; predecessors, heirs, assigns, representatives and/or

agents (with the exception of Plaintiff), have no right, title, interest in and/or claim to the Loan

Documents and, to the extent any such right, title, interest in and/or claim ever existed or was

asserted, any such right, title, interest in and/or claim is extinguished by this Judgment and

Order.

3. Plaintiff is entitled to entry of Judgment against Defendant West Mountain Golf,

LLC ('WMG) pursuant to the Note and the Loan Documents as follows:

a. For the unpaid balance as of June 12, 2013, in the amount of $4,775,026.89;

plus

b. $172,279.59 in pre-judgment interest accruing from and after June 12, 2013,

through November 6. 2013; plus

c. Per diem pre-judgmem‘. interest from November 6, 2013, through the date of

entry ofjudgment at the rate of $ I ,I 71 .97 per day;

4. Plaintiff has a valid and perfected lien and security interest in the real property

and personal property described on Exhibits A—I and A-2 attached hereto (collectively, the

‘Pmpertyfi, by virtue of that certain Mortgage, Assignment of Rents, Commercial Security

Agreement, Financing Statement and Assignment of Deposit Account (the“WMG Mortgage“)

JUDGMENT, DECREE OF FORECLOSURE AND ORDER OF SALE “PAGE 2Matter: 8571-007

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dated August 24, 2005. The Mortgage was recorded with the County Recorder in Valley

County. Idaho, on September 20, 2005 as Instrument No. 300300. The Assignment of Rents was

recorded with the County Recorder in Valley County, Idaho. on September 20. 2005 as

Instrument N0. 30033]. The Financing Statement was recorded with the County Recorder in

Valley County. Idaho, on September 16, 2005 as Instrument No. 300234.

5. The Property does not include the fee ownership interest of the State of Idaho in

the property described in Exhibit B attached hereto (the‘State Leased Property”). The Property

also does not include the leasehold interest of Tamarack Resort LLC in the State Leased

Property, pursuant to that certain Commercial Lease No. M-5042 dated June ll, 2002 (as has

been or may be further amended, supplemented, extended, restated or otherwise modified from

time to time, the‘State Lease).

6. The Sale (as defined below) shall not, and is not intended to, affect the valid,

perfected lien and security interest of Credit Suisse AG, Cayman Islands Branch (formerly

known as Credit Suisse, Cayman Islands Branch) (hereinafter‘tredit Suissé’) in the real and

personal property (the‘Tamarack Property) described in, and by virtue of, that certain Mortgage,

Leasehold Mongage, Security Agreement, Assignment of Rents and Leases and Financing

Statement (the‘Tamarack Mortgage) dated as of May l9, 2006, which was recorded (a) with the

County Recorder of Valley County, Idaho on May l9, 2006 as Instrument N0. 308953, and (b)

with the County Recorder ofAdams County, Idaho on May 22, 2006 as Instrument No. 111741 .

7. The Sale (as defined below) shall not, and is not intended to, affect the valid,

perfected lien and security interest of Credit Suisse AG, Cayman Islands Branch (formerly

known as Credit Suisse, Cayman Islands Branch) in the real and personal property (the‘Receiver

PropertY’) described in, and by virtue of, (a) that certain Mortgage. Leasehold Mortgage, Security

JUDGMENT, DEGREE OF FORECLOSURE AND ORDER OF SALE —PAGE 3

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Agreement, Assignment of Rents and Leases and Financing Statement dated October l7, 2008,

which was recorded (i) with the County Recorder of Valley County, Idaho 0n October 3 l , 2008

as Instrument No. 336245, and (ii) with the County Recorder of Adams County, Idaho. on

October 3] , 2008 as Instrument No. l 17384; (b) that certain Amended and Restated Mortgage,

Leasehold Mortgage, Security Agreement. Assignment of Rents and Leases and Financing

Statement dated March 23, 2009, which was recorded (i) with the County Recorder of Vailey

County, Idaho on April 6, 2009 as Instrument No. 340317, and (ii) with the County Recorder of

Adams County, Idaho on April 6, 2009 as Instrument No. 118] 1 1; and (c) that certain Second

Amended and Restated Mortgage, Leasehold Mortgage, Security Agreement, Assignment of

Rents and Leases and Financing Statement dated May 18. 2009, which was recorded (i) with the

County Recorder of Valley County, Idaho on May 21, 2009 as Instrument No. 341638. and (ii)

with the County Recorder of Adams County, Idaho on May 2], 2009 as Instrument No. 1 18348

in the principal amount of $0,162,810.00 plus interest through January 3}, 2013 of

$l0,l87,436.38 and interest of $7,747.54 per day from February l. 2013 until the day of sale

(collectively, the‘Receiver Mortgage§’).

8. Neither this Judgment and Order nor the Sale (as defined below) shall affect.

modify or otherwise alter that certain Third Amended Second Revised Judgment and Decree of

Foreclosure and Order of Sale entered on June 4, 20l3, in the matter entitled [n Re Tamarack

Resort Foreclosure and Related Proceedings, Case No. CV 08-] 14C, District Court of the Fourth

Judicial District, State of Idaho, County of Valley (the‘Credit Suisse Judgment), which was

recorded (i) with the County Recorder of Valley County, Cascade, Idaho, on June 17, 2013 as

Instrument No. 378262, and (ii) with the County Recorder of Adams County, Adams, Idaho as

Instrument N0. [25272.

JUDGMENT, DEGREE OF FORECLOSURE AND ORDER 0F SALE ~PAGE 4Matter: 8571-007

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9. Plaintiff, WMG, GVH and Fletcher, and their respective predecessors, successors,

heirs, assigns, agents, and/or representatives, have no right, title or interest in and/or claim to the

State Leased Property, the Tamarack Property, the Receiver Property, the Tamarack Mortgage,

or the Receiver Mortgages, and, to the extent any such right, title, interest and/or claim ever

existed 0r was asserted, any such right, title, interest and/or claim is extinguished by this

Judgment and Order.

10. Except as provided in paragraphs 5, 6, 7, 8, 9. and IS herein, WMG, GVH, Credit

Suisse, Fletcher, and any other party claiming an interest in thé Property, and their respective

predecessors, successors, heirs, assigns, agents, and/or representatives, have no right, title or

interest in and/or claim to the Property, and, to the extent any such right, title, interest and/or

claim ever existed or was asserted. any such right. title, interest and/or ciaim is extinguished by

this Judgment and Order.

l I. The Sheriff of Valley County (the‘fi‘leriffi shall sell the Property as a single unit,

by levy and execution at public auction, thereby foreclosing the WMG Mortgage on the

Property. The foreclosure sale conducted by the Sheriff pursuant to this judgment, decree and

order is sometimes referred to herein as the‘SaIe?’

[2. The Sheriff shall apply any cash proceeds of each Sale as follows:

a. First. t0 the Sheriffs fees and costs associated with the Sale;

b. Second, to the Plaintiff until this judgment is satisfied in full; and

c. Third, if cash proceeds remain after satisfaction of this judgment in full.

such excess proceeds shall be deposited with the Clerk of this Court until parties claiming such

proceeds may be heard and the proceeds released by order of this Court.

JUDGMENT, DECREE OF FORECLOSURE AND ORDER OF SALE —PAGE 5Matter: 857L007

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l3. At the Sale, the Plaintiff may bid by credit against the amount of its lien, in any

amounts and in any increments as Plaintiff may elect in its sole discretion.

l4. Any person or party may become a purchaser at the Sale, except the Sheriff and

the Sheriffs deputies.

15. Except as provided in paragraphs 5, 6, 7, 8 and 9, above, upon completion of the

Sale of the Property, all junior interests in, or junior liens on, the Property shall be terminated

and foreclosed, except as to any redemption rights that survive the mortgage foreclosure as

provided by the law ofthe State of Idaho.

I6. Upon completion of the Sale of the Property, the Sheriff shall make and deliver to

the purchaser a certificate of sale in the form of Exhibit C attached hereto, and shall also cause

such certificate of sale to be recorded in the offices of the Valley County Recorder.

17. Upon completion of the Sale, the purchaser or purchasers at such Sale shall be

entitled to possession of and the use and benefits of the Property purchases at such Sale, from the

time of Sale until redemption, if any.

18. After the times allowed by law for redemption have expired without redemption

having occurred, the Sheriff shall execute and deliver to the purchaser or purchasers at the Sale

of the Property, or its or their designated assignee(s). a Sherifl’s Deed in the form of Exhibit D

attached hereto.

19. Hopkins Growth Fund, LLC (HGF’) a member of WMG, had an involuntary

bankruptcy petition filed against it on or around November 8, 201 3, District of Idaho Bankruptcy

Case No. 13-02275-JDP (the “Bankruptcy Casé’). Contemporaneously herewith, RSPT has

submitted a motion (the‘Motiori’) in the Bankruptcy Case, seeking a determination and order that

ll U.S.C. §362 is not implicated by WMG’s stipulation. filed November i4, 2013 (the‘WMG

JUDGMENT, DEGREE OF FORECLOSURE AND ORDER OF SALE —PAGE 6Matter: 8571-007

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Stipulatiofi’), and that either HGF’S action as a member ofWMG to approve the WMG Stipulation

is authorized by the Bankruptcy Code, or‘ in the alternative, that such action does not constitute a

transfer of property of the HGF estate (the‘fomfort Ordel‘). The Sale defined in paragraph l l

herein shall not be conducted until the issuance of the Comfort Order. RSPT shall inform this

Court no later than January 9, 20l4, of the outcome 0f the Motion and/or the issuance of the

Comfort Order. The Court specifically retains and reserves jurisdiction to alter or amend this

Judgment based on the Bankruptcy Court's determination of the Motion and/Or issuance of the

Comfort Order.

20. The Court expressly reserves and retains jurisdiction of this cause for the purpose

of making such further orders as may be necessary to carry out this judgment, decree of

foreclosure and order of sale, correct any mathematical error. determine any deficiency judgment

or judgments, or for the purpose of making such further orders as may be necessary or

appropriate.

DATED this day of , 2013.

HONORABLE THOMAS F. NEVILLEDistrict Court Judge

JUDGMENT, DECREE OF FORECLOSURE AND ORDER OF SALE —PAGE 7Matter: 8571-007

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RULE 54(2) CERTIFICATE

With respect to the issues determined by the above judgment or order it is hereby

CERTIFIED, in accordance with Rule 54(b), l.R.C.P.. that the court has determined that there is

no just reason for delay of the entry of a final judgment and that the court has and does hereby

direct that the above judgment or order shall be a final judgment upon which execution may

issue and an appeal may be taken as provided by the Idaho Appellate Rules.

DATED this day of , 2013.

HONORABLE THOMAS F. NEVILLEDistrict Court Judge

JUDGMENT, DECREE OF FORECLOSURE AND ORDER OF SALE —PAGE 8Matter: 857 l-007

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l HEREBY CERTIFY that on this day 0f December, 2013, l caused to be served a

true copy of the foregoing JUDGMENT AND DECREE 0F FORECLOSURE by the method

mmPlaintiff

Defendant

WestMountain

Golf, LLC

Defendant

Credit

Suisse AG,Caymanlsiands

Branch

Defendant

Credit

Suisse AG,CaymanIslands

Branch

Defendant

Counsel


Angstman Johnson

3649 N. Lakeharbor Ln.

Boise. ID 83703

Christopher C. Burke

Greener Burke Shoemaker Oberrecht,

P.A.

950 W. Bannock SL, Suite 950

Boise, ID 83702

Randall A. Pcterman

Moffatt Thomas Barrett Rock & Fields,

Chtd.

P.O. Box 829

Boise, ID 83701-0829

Elizabeth W. Waiker

Sidley Austin LLP555 W. Fifth St., Suite 4000

Los Angeles, CA 900] 3

James W. Fletcher Ill

P.O. Box 298

Spcrryville, VA 22740

indicated below. and addressed to those parties marked served below:

Means of Service

D U.S. Mail, Postage Paid

D Hand Delivered

E Fax Transmittal

(208) 8534)] l7

[j U.s. Man, Postage Paid

D Hand Delivered

Fax Transmittal

(208) 319-2601

D U.S. Mail. Postage Paid

D Hand DeIivered

Fax Transmittal

(208) 385-5384

D U.S. Mai}, Postage Paid

D Hand Delivered

E Fax Transmittal

(2 1 3) 896-6600

D U.S. Mail, Postage Paid

D Hand Delivered

g Fax Transmittal

(540) 987-8688

Deputy Cierk

JUDGMENT. DEGREE OF FORECLOSURE AND ORDER OF SALE wPAGE 9Matter: 857 l -007

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WLEGAL DESCRIPTION OF REAL PROPERTY

PARCELS A THRU D:

LEGAL DESCRIPTION0F

TAMARACK RESORT GOLF COURSE

Four parcels of land located in Sections 5 and 8, Township 15 North, Range 3 East, Boise

Meridian, Valley County, Idaho, more particularly described as follows:

Parcel A:COMMENCING at the north 1/4 comer of said Section 5; thence along the north line of said

section 5,

A.)

B.)

1 .)

2.)

3.)

4-)

5.)

6.)

7.)

8.)

9.)

10.)

I I.)

12.)

13.)

l4.)

S. 89° 2’7 OS’E., 296.16 feet; thence, departing said section line;

S. 0° 32‘ 55’W., 1537.60 feet t0 the POINT OF BEGINN ING; thence.

N. 86° 22’ 4'7‘E., 230.17 fee}; thence,

N. 77° 32’ 59’E., 268.40 feet; thence,

N. 70° 08 24’E., 202.53 feet; thence,

S. 69° 26’ 4]”E., 143.67 feet; thence,

S. 89° 50 07’E., 143.20 feet; thence,

S. 75° 12’ 40’E., 63.95 feet; thence,

S. 61° 52° 53’E., 159.81 feet; thence,

S. 71° 58 23’E., 16] .98 feet; thence,

S. 35° 04’ IZ’E., 136.31 feet; thence,

S. 14° 07’ 03’E.; 132.00 feet; thence,

S. 59° 40° 35’E., 272.48 feet; thence,

S. 25° 53’ 04" W., 276. i 8 feet; thence,

S. 21° 23’ 20’W., 502.77 feet; thence.

S . l2° 45’ 17’W., 169.07 feet; thence,

JUDGMENT, DECREB OF FORECLOSURE AND ORDER OF SALE —PAGE 10Matter: 8571—007

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15.)

16.)

17.)

18.)

t9.)

20.)

21 .)

22.)

23.)

24.)

25.)

26.)

27.)

28.)

29.)

30.)

3 1 .)

32.)

33.)

34.)

35.)

36.)

37.)

S. 20° 06’ 59’W., 663.00 feet; thence,

S. 82° 26 28’E.. 444.78 feet; thence,

S. 22° 35’ 30’E., 392.70 feet; thence,

S. 0° 05’ 04’E., 163.10 feet; thence.

S. 28° 16’ 52” W., 394.85 feet; thence,

S. 42° 47 08’W., 829.09 feet; thence,

S. 58° 17’ 13’W., 291 .47 feet; thence,

S. 26° 21’ 09’E., 3l6.06 feet; thence,

S. 26° l5’ 45’W., 122.10 feet to a point on the south line of said Section 5; thence,

along said section line,

S. 89° 56 23’ W., 585.80 feet to a point on the boundary of Tamarack Resort

Planned Unit Development Phase l; thence, along said boundary through the

following courses:

N. 4° Ol’ 06’E., 138.16 feet; thence,

N. ¥6° I(T 36’E., 140.67 feet; thence,

N. 2° 48 29’E., 46.17 feet; thence,

N. 24° 29 IZ’W., 208.21 feet; thence,

N. 2° 32 19’E., 47.12 feet; thence,

N. 28° 04’ 26’E., 19.54 feet; thence,

N. 39° 02 59’E., I l6.48 feet; thence,

N. 43° 20’ 5 l

”E., 730. l3 feet; thence,

N. 40° 01’ 59’W., 200.93 feet; thence,

S. 87° 54’ 29’W., l38.39 feet; thence,

S. 70° 18’ 13’W., 313.36 feet; thence,

S. 78° ll’ IO’W., 80.86 feet; thence,

N. 73° 02’ 13’W., 86.12 feet; thence,

JUDGMENT, DECREE OF FORECLOSURE AND ORDER 0F SALE —PAGE 1 1

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38.) N. 49° 16 48’W., 176.90 feet; thence.

39.) N. 48° 3 l’ 23’W., 250.98 feet; thence.

40.) S. 43° 58’ 03’W., 125.46 feet to a point on a non-tangent curve; thence,

41.) Northwesterly along said curve to the left having a radius of 205.00 feet, an arc

length of 62.63 feet, through a central angle of l7° 3U l6’, and a chord bearing and

distance of N. 42° 44’ 47’W., 62.39 feet; thence, tangent from said curve.

42.) N. 5 l° 29’ 53’W., 245.10 feet to the beginning of a tangent curve; thence,

43.) Northwesterly atong said curve to the left having a radius of 825.00 feet, an arc

length of 128.6] feet, through a central angle of 8° 55’ 56’, and a chord bearing and

distance 0f N. 55° 57‘ 53’W., 128.49 feet; thence,

44.) N. 62° 52’ 29’E., 170.63 feet; thence,

45.) N. 06° 08’ 2T’W., 363.79 feet; thence,

46.) N. 69° 30 18’W., 420.12 feet; thence,

47.) N. 43° l9 35’W., 422.80 feet; thence,

48.) N. 13° 49 07’W., 432.!3 feet; thence,

49.) N. 20° IS 50’W., 244.95 feet; thence,

50.) N. 32° 12’ 23’E., 180.50 feet; thence,

S] .) N. 53° IS 28’E., 176.77 feet; thence,

52.) N. 69° 09 56’E., 378.53 feet; thence.

53.) N. 16° 20 42’E., 161 .54 feet: thence,

54.) N. 59° 21’ 40’E., 60.00 feet; thence.

55.) S. 86° Ol’23’E., 170.22 feet; thence,

56.) N. 56° 08’ 22’E., 98.34 feet; thence,

57.) N. 75° l0” 48’E., 573.57 feet to the POINT OF BEGINNING.

JUDGMENT. DEGREE OF FORECLOSURE AND ORDER OF SALE —PAGE 12Matter: 8571-007

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Parcel B:

COMMENCING at the north 1/4 comer of said Section 8; thence, along the west line of the

northwest 1/4 of the northeast l/4 of said Section 8.

A.)

B.)

1.)

2.)

3-)

4.)

s.)

6-)

7.)

s.)

9.)

t0.)

1 L)

12.)

13.)

14.)

15.)

16.)

I7.)

18.)

19.)

20.)

21.)

JUDGMENT, DECREE OF FORECLOSURE AND ORDER OF SALE —PAGE 13Matter: 8571-007

mm

N.

zmzzzzzwmzz

0° 07’ 4I”W.. 1325.76 feet to the C-N 1/16 comer of said Section 8; thence,

89° 53’ 46’E.._ 240.24 feet to the POINT OF BEGINNING; thence.

. 89° 53’ 46’E., l 162.17 feet; thence,

. 15° 32’21”E.. 288.2l feet; thence,

. 45° 59 23’E., 187.80 feet; thence,

.0° 00 00’E., 43.69 feet; thence,

. 5 1° 07’ 48’W., 302.18 feet; thence,

. 20° 00 03’W., 324.47 feet; thence,

. 36° 46 50’W., 255.08 feet; thence,

.9° 22’ 20’W., 253.95 feet; thence,

. 20° 15’ 09‘ W., 2 l 3.84 feet; thence,

. 57° 05’ 33’W., 586.3! feet; thence,

.83° 17 l7’W., 328.92 feet; thence,

.75° 08" 04’W., 252.38 feet; thence,

. 78° 09 30’W.. 191 .69 feet; thence,

. 36° 21’ 59’W., l4] .59 feet; thence,

26° 23’ 49’E., 152.89 feet; thence,

. 68° 16’ 04’W., 378.45 feet; thence,

. I1° 43‘ 53’W., 84.70 feet; thence,

. 82° 23’ 28’ E., 162.44 feet; thence,

. 87° 47 57’E., 172.45 feet; thence,

.69° 50 ]6’E._. 135.!8 feet; thence.

82° 23’ 28’E., 217.18 feet; thence,

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22.) N. 72° 38’ 14’E., 221.45 feet; thence,

23.) N. 12° 20’ 03’E., 279.94 feet; thence,

24.) N. 6° 26 52’W., 377.77 feet; thence,

25.) N. 22° 03’ 29’W., 77.55 feet to the POINT OF BEGINNING

Parcel C:All that certain lot, piece or parcel of land. situate in Valley County, Idaho, and shown as Lot l l,

Block l9, of Tamarack Resort Planned Unit Development, Phase l Village, a plat which is

recorded in the office of the Recorder of Valiey County, Idaho.

Parcel D:

All that certain lot, piece or parcei of land, situate in Valley County, Idaho, and shown as Lot 12,

Block l9, of Tamarack Resort Planned Unit Development, Phase l Village, a plat which is

recorded in the office ofthe Recorder of Valley County, Idaho.

PARCELS A THRU D:

Together with an easement for ingress and egress, a 30 foot wide strip of land, IS feet either side

of the following centerline.

COMMENCING at the north 'A comer of said Section 5; thence, along the north line of said

Section 5.

A.) S.89° 2705B, 842.30 feet; thence, departing said section line,

B.) S.19°3829W. 371 .1 I feet; thence,

C.) S.7l°02’32’E, 54.96 feet to the POINT 0F BEGINNING; thence,

D.) Southwesterly along a curve to the left with a radius of 80.00 feet, an arc- length of 68.91

feet, through a central angle of 48°502f’. and a chord bearing and distance of

S.0°23’5I W., 66. l S feet; thence, tangent from said curve,

E.) S.24°Ol’l9’E, 54.34 feet to the beginning of a tangent curve; thence,

F.) Southeasterly aiong said curve to the left with a radius of 84.00 feet, an arc length of

31.84 feet, through a central angle of 21°43’14’, and a chord bearing and distance of

S.34°52'56’E., 3 1 .65 feet; thence,

JUDGMENT. DECREE OF FORECLOSURE AND ORDER OF SALE —PAGE l4Matter: 857l-007

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G.) Southwesterly along said curve to the right with a radius of 130.00 feet, an arc length of

2] [.53 feet, through a central angle of 93°13’42’, and a chord bearing and distance of

S.0°52’18’W., 188.95 feet; thence, tangent from said curve,

H.) S.47°2909W., 163.59 feet to the beginning of a tangent curve; thence,

l.) Southwesteriy along said curve to the left with a radius of 350.00 feet, an arc length of

183.8] feet, through a central angle of' 30°05‘23’, and a chord bearing and distance of

S.32°2628W.. 181.70 feet to the POINT 0F TERMINATION

Parcel F:

Condominium Units Ll-Ol, Ll-OZ, Ll-04, L1-06, Ll-07, Ll—OS, P1-40, P1-4i, P1-44, P2-Ol,

and P2—04, Tamarack Resort Members Lodge Condominium. as shown on the c0ndominium plat

for Tamarack Resort Members Lodge Condominium, appearing in the records of Valley County,

Idaho, as Instrument No. 291359, and as defined and described in that Condominium Declaration

for Tamarack Resort Members Lodge Condominium, recorded in the records of Valley County,

Idaho as Instrument No. 291 363.

JUDGMENT, DEGREE OF FORECLOSURE AND ORDER OF SALE —PAGE 15

Matter: 857 l -007

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EXHIBIT A-2

DESCRIPTION OF PERSONAL PROPERTY COLLATERAL

All Personal Property Coilateral as defined in the WMG Mortgage.

JUDGMENT, DECREE OF FORECLOSURE AND ORDER OF SALE ~PAGE l6

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EXHIBIT B

DESCRIPTION OF STATE LEASED PROPERTY

PARCEL lA INTENTIONALLY OMITTED.

PARCEL IB INTENTIONALLY OMITTED.

PARCEL IC INTENTIONALLY OMITTED.

PARCEL 2 INTENTIONALLY OMITTED.


PARCEL 4

The following parcels of land lying within Valley County. Idaho:

NW 'A NE 'A and W '/2 NE ‘A NE Ms Section 8, Township IS North, Range 3 East, Boise

Meridian, Valley County, Idaho;

AND

All of Section 36 lying within the boundaries of Valley County, Idaho Township l6, North

Range 2 East, Boise Meridian, Valley County, Idaho;

AND

Government Lots 9 and 1]; E '/2 SW ‘A; NW V4 SW ‘/4 SE '/4; S V2 SW '/4 SE ‘A Section l9,

Township 16 North. Range 3 East, Boise Meridian, Valley County, Idaho;

AND

All of Section 30, excepting therefrom the NE 'A NE %, Township 16 North, Range 3 East, Boise

Meridian, Valley County, Idaho;

AND

Ali of Section 3 l . Township l6 North, Range 3 East, Boise Meridian, Valley County, Idaho.



PARCEL ’7 INTENTIONALLY OMITTED.


JUDGMENT, DEGREE OF FORECLOSURE AND ORDER OF SALE —PAGE l7

Matter: 8571—007

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PARCEL 9:

A permanent easement, for the benefit of Parcel 4 above, for reconstructing, using and

maintaining a road, over. and across that certain real property more fully described on and

created pursuant to a document entitled State of Idaho Easement No. S706, by and between the

State of Idaho, Department of Lands, as Grantor and Franklin B. Edwards, a single man, as

purchaser ofcertain parcels of land from the estate of Mryn Little, and Agnes Brailsford,

personal representative of said estate; Henry J. and Karleen L Grasmick; Glenn Dee and M.Lorene Morrow; Margaret P. Slifka; Executor of the Estate of Margaret P. Slifka; Charles E.

Syversin; Jim E. and Mary L. Walters, as Grantees, dated March I, I995, and recorded

March 22. 1995, as Instrument No. ZIOI 73. Said easement provides a permanent easement for

the purpose of reconstructing, using and maintaining a road that provides ingress and egress to

and from a public road known as West Mountain Road.

PARCEL 10: (LH-Tamarack Resort, LLC, Tenant and State of Idaho, Landlord, AdamsCounty)

AN that part of Section 36, TI6N R28 BM lying within the boundaries ofAdams County, Idaho.

JUDGMENT, DECREE OF FORECLOSURE AND ORDER 0F SALE —PAGE l8Matter: 857 l -007

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EXHIBIT C

FORM OF CERTIFICATE OF SALE


ANGSTMAN JOHNSON3649 N. Lakeharbor LaneBoise, Idaho 83703Telephone: (208) 384-8588Facsimile: (208) 853-0! l7



[N THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT

OF THE STATE OF IDAHO, [N AND FOR THE COUNTY OF VALLEY

RETIREMENT SECURITY PLAN AND Case No_ CV-2013-203CTRUST,

Plaintiff, SHERIFF'S CERTIFICATE OF SALE

VS.




Suisse‘ Cayman Islands Branch); JAMES W.FLETCHER, an individual; CERTAIN REALPROPERTY LOCATED IN VALLEYCOUNTY, IDAHO; DOES 1-50; DOES 51-

100; DOES 101-120,

Defendants.

l, Patti Bolen. the Sheriff of Valley County, Idaho. hereby certify that:

l. By virtue of the Writ of Execution in the above—entitled action, dated the ___ day

of , 2013, issued to me along with a Judgment and Decree of Foreclosure and Order of

JUDGMENT, DECREE OF FORECLOSURE AND ORDER OF SALE “PAGE l9

Matter; 35714107

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Sale (the“Decree"). the Court in the above-captioned action ordered me to conduct a sale of

certain real and personal property more particularly described on Exhibits A-l and A-2 attached

hereto and incorporated herein by this reference (the“WMG Foreclosure Property) in which

defendant, West Mountain Golf, LLC, or its successors, assigns, legal representatives, agents, or

any other persons or entities acting for, by or through it, own or hold interests (the‘iludgment

Debtor") ,f‘or the amount of $ . plus post-writ interest payable in lawful money of

the United States, together with fees and costs assessed by the Sheriff to conduct the sale.

2. Pursuant to the Decree, on , 2013, at 10:00 a.m., on the front steps

of the Valley County Courthouse. 219 N. Main, Cascade, Idaho, I sold the WMG Foreclosure

Property at public auction to (‘Purchaser"), the highest bidder, by virtue of

the [credit] bid entered by Purchaser in the sum of and h/IOO

DOLLARS ($ ._), in lawful money of the United States.

3. The real property st) sold may be subject to redemption within one (l) year after

the sale. pursuant to idaho Code Section 1 1-402.

4. I hereby render the following statement:

$ , plus post-writ

interest at the statutory rate, for a total

amount of

Judgment Amount: $

Sheriffs Fees and Costs: $

Highest Bid: $

5. l hereby deliver the WMG Foreclosure Property to Purchaser, whose address is

, pursuant to Idaho Code Section 1 1-310.

JUDGMENT, DECRBE OF FORECLOSURE AND ORDER OF SALE —PAGE 20Matter: 8571-007

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6. Based on the Purchaser’s [credit] bid, the Judgment against the Judgment Debtor is

not satisfied in full.

DATED this day of . 201 3.

PATTI BOLENSheriffof Valley County, Idaho

STATE OF IDAHO )

) ss:

COUNTY OF VALLEY )

0n this ___ day of , 201 3, before me, the undersigned Notary Public

in and for the State of Idaho, personally appeared Patti Bolen, known or identified to meto be the Sheriff of Valley County, Idaho, who executed. this instrument andacknowledged to me that she executed the same as Sheriff of Valley County, Idaho.

WITNESS my hand and official seal hereto affixed the day and year first abovewritten.

NOTARY PUBLIC FOR IDAHOResiding at

My commission expires

JUDGMENT, DECREE OF FORECLOSURE AND ORDER OF SALE -—PAGE 2|Matter: 857) -007

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muFORM OF SHERIFF’S DEED


ANGSTMAN JOHNSON3649 N. Lakeharbor LaneBoise, Idaho 83703Telephone: (208) 384-8588Facsimile: (208) 853-01 l7



IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRiCT


RETIREMENT SECURITY PLAN ANDTRUST.

Plaintiff,

vs.




Suisse, Cayman Islands Branch); JAMES W.FLETCHER, an individual; CERTAIN REALPROPERTY LOCATED IN VALLEYCOUNTY, IDAHO; DOES 1—50; DOES 5L-

100; DOES 101-120.

Defendants.

This indenture is made thisW day of

Sheriff of Valley County, Idaho (the‘Sheriff’) and

Case No. CV-20l 3~203C

SHERIFF'S DEED

, 2014, between Patti Bolen, the

, whose address is

(the‘Wrchasef’).

JUDGMENT, DECREE 0F FORECLOSURE AND ORDER OF SALE “PAGE 22Matter: 857 I -007

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A. On , 2013. in the above~captioned action then pending in the

District Court of the Fourth Judicial District of the State of Idaho, in and for the County of

Valley (the‘Court’), the Court entered that certain Judgment and Decree 0f Foreclosure and Order

of Sale (the‘fludgment’) against defendant West Mountain Golf, LLC (the‘iludgmem Debtof’) and

its successors, assigns, legal representatives, agents, or any other persons or entities acting for,

by or through it, in favor of plaintiff Retirement Security Plan and Trust (RSPT’).

B. 1n the Judgment, the Court ordered, adjudged and decreed, among other things,

that the Sheriff sell that certain WMG Foreclosure Property described in the Judgment at public

auction in the manner required by law; that any person other than the Sheriff or her deputies

might become the purchaser at such sale; and that the Sheriff execute a certificate of sale and a

deed to the purchaser, as required by law and specified in the Judgment.

C. A copy of the Judgment and a Writ of Execution were delivered to the Sheriff for

execution.

D. At 10:00 a.m. on the _H day of , 20] 3, after due public notice had

been given. as required by the laws of the State of Idaho, pursuant to the Judgment the Sheriff

sold the WMG Foreclosure Property at pubiic auction, 0n the front steps of the Valley County

Courthouse located at 219 N. Main, Cascade, Idaho, to the Purchaser, by virtue of its [credit] bid

for the sum of and _/100 DOLLARS ($ ._). The amount of

such [credit] bid was credited t0 the Judgment against the Judgment Debtor.

E. Upon such sale, the Sheriff made and issued a certificate of such sale. in

duplicate, in the form required by the Judgment. The Sheriff then delivered one duplicate of

such cenificate to the Purchaser and caused the other to be filed and recorded in the Recorder’s

Office of Valley County, Idaho, on, as Instrument No.

JUDGMENT, DEGREE OF FORECLOSURE AND ORDER 0F SALE ~PAGE 23Maticr: 857l-007

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F. More than one (l) year has elapsed since the date of such sale! and the WMG

Foreclosure Property has not been redeemed by or on behalf of the Judgment Debtor or by or on

behalf of any other person.

NOW, THEREFORE, in order to can'y into effect the sale so made by the Sheriff, in

pursuance of the Judgment and as required by law, and in consideration of the payment [by

credit bid] orthe sum of and m/loo DOLLARS (3 .4, and in

consideration of the above premises, the Sheriff hereby grants, bargains, sells and conveys to

Purchaser, its successors and assigns forever, the real and personal property described on

Exhibits A-l and A-2 attached hereto and incorporated herein by this reference, together with all

and singular the tenements, hereditaments, and appurtenances thereunto belonging, or in anywise

appertaining, and the reversion and reversions, remainder and remainders, rents, issues and

profits thereof.

[N WITNESS WHEREOF, the Sheriff, as grantor hereunder, has executed this Sheriffs

Deed the day and year first above written.

PATTI BOLENSheriff of Valley County, Idaho

JUDGMENT, DECREE 0F FORECLOSURE AND ORDER OF SALE —PAGE 24Matter: 857 1-007

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STATE 0F lDAHO )

) ss:

COUNTY OF VALLEY )

On this ___ day of , 2014, before me, the undersigned Notary Publicin and for the State of Idaho, personally appeared Patti Bolen, known or identified to meto be the Sheriff 0f Valley County. Idaho, who executed this instrument andacknowledged to me that she executed the same as Sheriff of Valley County, Idaho.

WITNESS my hand and official seal hereto affixed the day and year first abovewritten.

NOTARY PUBLIC FOR IDAHOResiding at

My commission expires

JUDGMENT. DECREE OF FORECLOSURE AND ORDER OF SALE —PAGE 25Matter: 857l-007