Terhune v. N. Cascade Tr. Servs., Inc.

446 P.3d 683
CourtCourt of Appeals of Washington
DecidedAugust 13, 2019
DocketNo. 51479-6-II
StatusPublished
Cited by17 cases

This text of 446 P.3d 683 (Terhune v. N. Cascade Tr. Servs., Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Terhune v. N. Cascade Tr. Servs., Inc., 446 P.3d 683 (Wash. Ct. App. 2019).

Opinion

Maxa, C.J.

*711¶1 Robert and Tara Terhune and their closely held company Equity Group NWest (collectively, the Terhunes) appeal the trial court's order granting summary *712judgment in favor of U.S. Bank Trust (U.S. Bank) and Caliber Home Loans (Caliber).

¶2 In 2008, the Terhunes defaulted on a loan secured by a deed of trust on their home and in early 2009 received notices that their obligations on their promissory note would be accelerated if they did not cure the default. Caliber issued a notice of trustee's sale for the home on U.S. Bank's behalf in 2016, and the Terhunes filed a lawsuit to enjoin the foreclosure and to quiet title to their home. The Terhunes argued that the promissory note had been accelerated in 2009, which started the six-year statute of limitations. Therefore, they claimed that the statute of limitations period had expired before U.S. Bank's foreclosure action. The Terhunes also argued that U.S. Bank was not authorized to foreclose because there was no evidence that U.S. Bank was the holder of the note.

¶3 We hold that (1) the statute of limitations did not bar the foreclosure action because there was no clear and unequivocal acceleration of the promissory note; (2) the evidence established that U.S. Bank was the holder of the Terhunes' promissory note and the Terhunes failed to establish a genuine issue of fact on this question, and therefore U.S. Bank had authority to foreclose on the deed of trust; and (3) the trial court did not err in denying the Terhunes' motion for reconsideration.

¶4 Accordingly, we affirm the trial court's orders granting summary judgment in favor of U.S. Bank and Caliber and denying the Terhunes' motion for reconsideration.

FACTS

Promissory Note

¶5 On January 8, 2008, the Terhunes executed a promissory note for $1,499,999 in favor of Countrywide Bank (Countrywide). The note was secured by a deed of trust on the Terhunes' home in Lake Tapps. The note *686required the Terhunes to make payments of $8,124.99 on the first day of every month *713beginning on March 1, 2008. The maturity date of the note was February 1, 2038.

¶6 The note stated that the Terhunes would be in default if they failed to make a monthly payment on the due date. The note also included an acceleration clause, which stated,

If I am in default, the Note Holder may send me a written notice telling me that if I do not pay the overdue amount by a certain date, the Note Holder may require me to pay immediately the full amount of Principal that has not been paid and all the interest that I owe on that amount.

Clerk's Papers (CP) at 96.

¶7 The deed of trust stated that the lender must give written notice before accelerating the note obligations and that the notice must specify that "failure to cure the default on or before the date specified in the notice may result in acceleration." CP at 109 (bolding omitted). The deed of trust further provided that if the default was not cured on or before the date specified in the notice, "Lender at its option may require immediate payment in full of all sums" secured by the deed of trust. CP at 109 (bolding omitted). Default and Notice of Intent to Accelerate

¶8 The Terhunes made monthly payments on the mortgage from March 2008 through October 2008. On December 17, after the Terhunes failed to make the November and December payments, Countrywide sent them a Notice of Intent to Accelerate. The notice stated that the loan was in default and that the Terhunes had until January 16, 2009 to cure the default by paying the two missed payments plus late charges. The notice also stated that if the default was not cured, "the mortgage payments will be accelerated with the full amount remaining." CP at 158.

¶9 The Terhunes made the November payment, but did not make the December payment and failed to make the January 2009 payment. On January 16, 2009, Countrywide sent a second Notice of Intent to Accelerate. The notice *714stated that the loan was in default and that the Terhunes had until February 15 to cure the default by paying the two missed payments plus late charges. The notice again stated that if the default was not cured, "the mortgage payments will be accelerated with the full amount remaining." CP at 161.

¶10 The Terhunes made the December payment, but they did not make the January 2009 payment and failed to make the February payment. On February 17, 2009, Countrywide sent a third Notice of Intent to Accelerate. The notice stated that the loan was in default and that the Terhunes had until March 19 to cure the default by paying the two missed payments plus late charges. The notice stated, "If the default is not cured on or before March 19, 2009, the mortgage payments will be accelerated with the full amount remaining." CP at 164.

¶11 The Terhunes failed to make any further payments on the loan. However, there is no evidence that Countrywide provided any formal notice to the Terhunes that the loan actually had been accelerated.

2010 Foreclosure Action

¶12 In November 2009, BAC Home Loans Servicing, LP (BAC) sent the Terhunes a notice stating that BAC was servicing their loan and that their account was seriously delinquent. The notice stated that the past due amount was $86,382. In March 2010, BAC sent the Terhunes a notice of default stating that the total amount in arrears was $158,188.86.

¶13 In August 2010, the trustee of the deed of trust sent the Terhunes a notice of foreclosure, which stated that their property would be sold in December if their default was not cured. The notice stated that the amount in arrears was $216,503.61, and that the Terhunes had until November 22 to cure the default by paying all accrued charges that by that time were estimated to be $256,210.39. The trustee also recorded a notice of trustee's sale for December 3, 2010, which showed that the amount in arrears was $216,611.75.

*715¶14 In November, the Terhunes filed a lawsuit against BAC and others seeking, among other relief, an injunction to prevent the trustee's sale and to quiet title to their home. The Terhunes' lawsuit eventually was *687dismissed. But there is no evidence that the trustee continued to pursue foreclosure at that time.

Transfers of Note/Deed of Trust

¶15 In March 2015, LSF9 Master Participation Trust notified the Terhunes that it had purchased their loan. The Trust's mailing address was listed as "c/o Caliber Home Loans, Inc." CP at 551. On June 4, Caliber notified the Terhunes that it was the new servicer of the loan. In a June 5 letter, Caliber notified the Terhunes that the creditor on the loan was LSF9 Master Participation Trust and that their total debt was $2,292,209.26. However, the letter stated, "We are not requesting that you pay the entire loan balance." CP at 187.

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Cite This Page — Counsel Stack

Bluebook (online)
446 P.3d 683, Counsel Stack Legal Research, https://law.counselstack.com/opinion/terhune-v-n-cascade-tr-servs-inc-washctapp-2019.