Deutsche Bank National Trust Co., Res. v. Marthe Daix Toussaint Daix, Apps.

• Court: Court of Appeals of Washington
• Decided: July 31, 2017
• Docket: 74616-2
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DEUTSCHE BANK NATIONAL TRUST ) No. 74616-2-1 COMPANY, AS TRUSTEE FOR ) MORGAN STANLEY HOME EQUITY ) r--5 cf3 LOAN TRUST 2005-3 MORTGAGE ) —4 .PASS-THROUGH CERTIFICATES, ) C.— teT1

SERIES 2005-3, ) -rt • ) r- -10 rn Respondent, ) 717-7.> ) DIVISION ONE r".

v. ) C) C:1

) 7.70 MARTHE DA1X; TOUSSANT DAIX; ) COMUNITY LENDING, ) INCORPORATED; MORTGAGE ) ELECTRONIC REGISTRATION ) SYSTEMS, INC.; API/PICHON VIII, ) LLC; UNITED STATES OF ) UNPUBLISHED OPINION AMERICA INTERNAL REVENUE ) SERVICE; ALSO ALL PERSONS OR ) PARTIES UNKNOWN CLAIMING, ANY) RIGHT, TITLE, LIEN, OR INTEREST IN) THE PROPERTY DESCRIBED IN THE ) COMPLAINT HEREIN, ) ) Appellants. ) FILED: July 31, 2017 )

MANN, J. —Toussaint and Marthe Daix (Daixes) appeal an order granting

summary judgment and decree of foreclosure and a subsequent order denying a motion No. 74616-2-1/2

to vacate. Because the Daixes' appeal was untimely, we dismiss it. Deutsche Bank's

request for attorney fees on appeal is granted.

FACTS

In 2005, the Daixes executed a promissory note for $400,500 from Meritage

Mortgage Corporation. The note was indorsed to Deutsche Bank National Trust

Company, as trustee for the Morgan Stanley Home Equity Loan Trust 2005-3 Mortgage

Pass-Through Certificates, Series 2005-3(Deutsche Bank). The note was secured by a

deed of trust encumbering the Daixes' property. Deutsche Bank is the current

beneficiary.

The Daixes stopped making payments and became delinquent on the note on or

before August 2007. In January 2011, the loan's servicer sent the Daixes a notice of

default. The Daixes failed to cure the default and in November 2014, Deutsche Bank

initiated a judicial foreclosure action. On September 17, 2015, Deutsche Bank moved

for summary judgment. The Daixes did not file an opposition but appeared at the

hearing and requested extra time to respond. The trial court denied the request for

additional time and on October 30, 2015, granted summary judgment for Deutsche

Bank and entered a decree of foreclosure.

On November 25, 2015, the Daixes filed a proposed "Order to Show Cause

(Vacate Judgment/Order)" along with a declaration in support of motion to vacate. The

declaration appears to reargue the merits of the motion for summary judgment. The

trial court denied the motion the same day it was filed. On December 4, 2015, the

Daixes filed a motion for reconsideration. On December 15, 2015, the Daixes filed their

notice of appeal.

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ANALYSIS

The Notice of Appeal was Untimely

A party must file a notice of appeal within 30 days of the entry of the decision that

the party is appealing. RAP 5.2(a). This 30-day period is extended, however, by a

timely motion for reconsideration or new trial. RAP 5.2(a), (e). A motion for

reconsideration or new trial is timely when a party files and serves the motion within ten

days after the order. CR 59(b).

In this case, the order granting summary judgment and entering the decree of

foreclosure was issued on October 30, 2015. Absent a timely motion for

reconsideration or new trial, the notice of appeal should have been filed within 30 days.

Griffin v. Draper, 32 Wn. App. 611, 613,649 P.2d 123(1982).

The Daixes did not file their notice of appeal within 30 days of the entry of

judgment. Nor did the Daixes file a timely motion for reconsideration or new trial.

Under CR,59(a), a motion for reconsideration or new trial had to be filed within 10 days

of October 30, 2015. Assuming that the Daixes' motion for order to show cause was, in

effect, a motion for reconsideration or new trial, it was not filed until November 25, 2015.

The motion, therefore, was untimely.

While the Daixes filed a timely motion for reconsideration of the trial court's

decision denying the motion for order to show cause, they failed to provide any basis for

concluding that the trial court's order was erroneous. Because the motion for order to

show cause was untimely, it was properly denied.

The Daixes' notice of appeal was untimely and must be dismissed.

-3- No. 74616-2-1/4

Attorney Fees

Deutsche Bank requests an award of costs and attorney fees as the prevailing

party on appeal. A court may award a party its attorney fees when applicable law

authorizes them. RAP 18.1. A party may recover reasonable attorney fees and costs in

an action on a contract when the contract provides for that recovery. RCW 4.84.330.

Here, the Daixes' deed of trust provides that the lender "shall be entitled to recover its

reasonable attorneys' fees and costs in any action or proceeding to construe or enforce

any term of this [s]ecurity [i]nstrument" including "attorneys' fees incurred . . . on

appeal." Because Deutsche Bank enforced the security instrument and prevails on

appeal, we award Deutsche Bank its reasonable attorney fees and costs.

We dismiss and award fees and costs.

XhitI

WE CONCUR:

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