dissenting.
I agree with those aspects of the majority opinion which hold that the district court could vacate the stay and proceed with the litigation on the foreclosure action. I also am in accord with the disposition of the claim for attorney fees and the claim for interest. I would, however, reverse the summary judgment.
I am not satisfied that the trial court properly entered summary judgment in view of the claims of the Albrechts with respect to fraud. I see the record much in the same way as Justice Urbigkit does. The affidavits submitted by the parties are conflicting and diametrically opposed on issues of fact which are material. The trial court appears to have ruled that corroborating evidence was required in addition to Donald Albrecht’s personal testimony in order to satisfy the Albrechts’ burden of *1182establishing the claims of failure of consideration and fraudulent misrepresentation by clear and convincing evidence.
Even though our rule of substantive law is that fraud must be established by clear and convincing evidence (Duffy v. Brown, 708 P.2d 433 (Wyo.1985)), that does not justify a trial court in ruling that evidence is not clear and convincing based upon its view of an affiant’s or dependent’s credibility. There appears to be no way that the trial court could have entered the summary judgment without making a determination as to Albrecht’s credibility and without weighing the evidence. Those are processes which the trial court should eschew in addressing summary judgment.
The correct approach is articulated in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986), in which the Supreme Court said:
“Our prior decisions may not have uniformly recited the same language in describing genuine factual issues under Rule 56, but it is clear enough from our recent cases that at the summary judgment stage the judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.”
The standard to be applied for that purpose is whether a reasonable juror could find the evidence sufficient to meet the clear and convincing standard; it is not the perception of the trial judge. I understand the decision of the trial court not only to incorrectly grant summary judgment, but also to bypass the directed verdict stage and to decide the case on its finding of fact without the benefit of testimony from witnesses, cross-examination, or the arguments of counsel.
Absent some compelling constitutional interest that requires protection, which is not this ease, I am satisfied that the trial court should not enter summary judgment, even if the substantive rule of proof requires clear and convincing evidence, when it is confronted with diametrically opposing affidavits that otherwise would be sufficient to structure a genuine issue of material fact. It should leave for the finder of fact the weighing of the evidence and the assessment of credibility. In this case, the district court ruled otherwise and, consequently, I would hold, like Justice Urbigkit, that the summary judgment was not properly entered.