(dissenting):
The majority of the Court fails to reckon with a further all-important and consistent legal principle without which the much to be desired procedure of summary judgment becomes a shambles.
It has long been established in the law that, although an issue may be raised by the pleadings, the procedure of summary judgment is available to pierce the allegations of the pleadings and to thereby demonstrate that the moving party is entitled to judgment as a matter of law.1 Where the evi-dentiary material of the moving party is sufficient on its face, and the opposing party fails to proffer any evidentiary matter when afforded the opportunity to do so, the courts are justified in concluding that no genuine issue of material fact is present, nor would it be at the time of'trial.2
Applying the foregoing principle to the facts of this case, it becomes readily apparent, as a matter of law, that Barnes did not and cannot meet its burden of raising a genuine issue of material fact, and that the trial court correctly ruled that the conveyance in question adequately expressed the intention of the parties as being that of a sale and not a mortgage.
This case is particularly of the type which lends itself to summary judgment. The plain, unmistakable language contained in the conveyance, as well as the contemporaneous agreements entered into by the parties, make them absolute on their face, and Barnes made no claim nor presented any evidence, by affidavit or otherwise, that any parol agreements existed. In his deposition, W. H. Barnes simply stated that it was his “understanding” that the property was pledged and not sold; that it was his “recollection” that he offered only to pledge; and that he “assumed” Sohio was not in the lending business, yet he had “no intention” of selling the property. Hence, the cases cited by Barnes which sanction the introduction of parol evidence to establish the intent of the parties are not apropos.
An instrument of conveyance, absolute on its face, is not to be construed as a mortgage unless it is evident that both parties regarded it as such,3 and a strong presumption arises that the terms thereof express the intentions of the parties. As this Court stated in Ewing v. Keith,4 in an action to declare a deed a mortgage,
... the burden rests on the moving party to overcome the strong presumption arising from the terms of the written instrument, by clear, unequivocal convincing, testimony; and if there is a failure to overcome this presumption by testimony clear, plain and convincing, beyond any reasonable controversy, the written instrument will be held to express the intention of the parties.
A review of the documents in the instant case reveals that they speak only in terms of sale, not in terms of pledge, mortgage, or security. Also, nothing contained therein can be construed as giving rise to an indebtedness on the part of Barnes to Sohio.5
*62The Bank obviously loaned Barnes the $500,000 solely on the strength of the letter of commitment which obligated Sohio to purchase the property and pay off the note in the event of Barnes’ default. This is evident by reason of the fact that the Bank took no other security of any kind, least of all the property of Barnes. Thus, upon Barnes’ default on the note, the Bank could, and did, look only to Sohio for payment pursuant to the terms of the letter of commitment.
Barnes seeks solace in the fact that the Bank assigned the note to Sohio after receiving payment thereon, urging that this evidences an understanding on the part of the Bank as escrow agent that its loan to Barnes was a secured transaction which required the debt to accompany the property, and hence the further requirement of foreclosure. However, as aptly stated by the trial court, even if it be assumed that the Bank would so testify, the writings of the parties, and particularly the letter commitment to purchase would not, as a matter of law, permit an interpretation of the transaction as one of security requiring foreclosure, rather than as one of purchase as explicitly set forth in each of the documents pertaining thereto.
I would affirm the judgment of the trial court.
. Dupler v. Yates, 10 Utah 2d 251, 351 P.2d 624 (1960), and cases cited therein.
. Id.
. Ideal Electric Company v. Willey, 20 Utah 2d 182, 435 P.2d 921 (1968); Northcrest, Inc. v. Walker Bank & Trust Co., 122 Utah 268, 248 P.2d 692 (1952).
. 16 Utah 312, 52 P. 4 (1898); see also, Jacobsen v. Jacobsen, Utah, 557 P.2d 156 (1976); Thornley Land & Livestock Co. v. Gailey, 105 Utah 519, 143 P.2d 283 (1943); Smyth v. Reed, 28 Utah 262, 78 P. 478 (1904); Chambers v. Emery, 13 Utah 374, 45 P. 192 (1896); 3 Powell on Real Property 477.
. That without a debtor-creditor relationship there can be no mortgage, see Thomas v. Ogden State Bank, 80 Utah 138, 13 P.2d 636 (1932).