                                                                                                          FILED
                                                                                                  011J ', T OF APPEALS
                                                                                                        DIVISMI 11

                                                                                             2013 NOY 26        AN 9: 09

                                                                                              STATE            S' dIN   ON


                                                                                                          0 NAT Y




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                DIVISION II

SHARIN R. METCALF, and                                                      No. 43103 -3 -II
BRYAN BOOREN,


                                  Appellants,


          V.



CFA/ NW MORTGAGE PROFESSIONALS,
a Washington State mortgage broker; CFA
FINANCIAL SERVICES, INC., a mortgage
lender,        and   BANK   OF.    AMERICA (           as

successor to Countrywide Home Loans,
a mortgage lender),                                                   UNPUBLISHED OPINION




          WORSWICK, C.J. — In this mortgage- related dispute, Sharin Metcalf and Bryan Booren


appeal from an order vacating their default judgment against CFA/NW Mortgage Professionals,

CFA Financial Services, Inc.,      and   Bank   of   America ( collectively, Bank   of   America). Metcalf


and Booren do not dispute the judgment' s vacation. Instead, they argue that the trial court

abused its discretion because the order ( 1) conclusively determined that Bank of America was a

creditor and ( 2) required Metcalf to make monthly mortgage payments as a condition of an

injunction preventing Bank    of   America from        foreclosing.   Because the   order   did   not   conclusively
No. 43103 -3 -II




determine Bank of America' s status, and because the trial court did not abuse its discretion by

imposing proper conditions, we affirm.

                                                             FACTS


       On    January      9, 2006, Sharin Metcalf            and   her   son,   Bryan Booren, ( collectively, " Metcalf')


obtained two mortgages totaling $450, 000 to finance the purchase of real property located in

Sequim. Metcalf         stopped     making monthly       payments "        in    or around   January    2009."    Clerk' s


Papers ( CP) at 165.


       In June 2010, Metcalf filed a ten -
                                         count complaint against Bank of America. The


complaint claimed (       1) breach     of contract; ( 2)     deceptive     and     predatory     lending   practices; (   3) bad


faith;. ( fraud
        4)         and misrepresentation; ( 5)          unconscionability; ( 6) breach of the implied covenant


of good   faith   and   fair   dealing; ( 7)   breach   of   fiduciary duty; ( 8)      elder abuse of Metcalf, who was a


senior citizen, and associated          Consumer Protection Act                 violations; (   9) conspiracy to conceal the

true nature of the loans; and ( 10) intentional infliction of emotional distress. Metcalf served

Bank of America with the complaint and a summons on August 3, 2010.


          Bank of America did not respond, and in July 2011, Metcalf moved for, and was

awarded, a default judgment. The judgment awarded Metcalf $537, 000 in damages and enjoined


Bank of America from foreclosing on the property " unless and witil this default judgment is

vacated or quashed."           CP at 222.


          Nearly four months later, in November 2011, Bank of America moved to vacate the

default judgment. Metcalf opposed the motion, arguing in part that vacating the judgment would

prejudice her because she was " at risk of being foreclosed upon despite the fact that [ she was]




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No. 43103 -3 - II




working     with   the bank    on    the   payments."    Verbatim Report         of   Proceedings ( VRP)   at   13.   But the


trial court noted that, if it vacated the default judgment, whether Bank of America could


foreclose " would      still   be   argued on   the   merits."   VRP at 14.


          The trial court vacated the default judgment with an order stating that Bank of America

 remain[ s]      a creditor of [Metcalf] under         the terms   of   the   mortgage."    CP at 46. But the order


further stated that " the mortgage may at some point be deemed invalid under [ Metcalf s]

complaint."       CP at 46.


          In addition, the trial court imposed terms on Bank of America. Specifically, the trial

court ordered Bank of America to pay Metcalf s costs and attorney fees related to the default

judgment and enjoined Bank of America from foreclosing " unless and until such is authorized by

the Court or this matter is no longer pending provided that [ Metcalf] pay[ s] the monthly

mortgage payment due under the terms of the note commencing with the February 2012

payment."        CP at 48.


          Metcalf appeals two provisions of the order vacating the default judgment. See RAP

2. 2( a)( 10).   After Metcalf appealed, Bank of America agreed to allow Metcalf to make monthly

mortgage payments to the court registry. Resp' t' s Mot. for Additional Evidence on Review,

Metcalf v.       CFA /
                     NW Mortg.        Prof'ls, No.     43103 -3 - II (Oct. 15, 2012),      at Ex. A, granted by Ruling,

Metcalf, No.       43103 -3 - II (Wash. Ct.     App.    Nov. 13, 2012);        see   RAP 9. 11.
No. 43103 -3 -II




                                                           ANALYSIS


         Metcalf argues that the trial court erred by including two provisions in the order vacating

the default judgment: ( 1)              a provision that conferred creditor status on Bank of America and ( 2)


another provision that conditioned the trial court' s injunction against foreclosure on Metcalf s

resumption of        monthly       mortgage payments.'           These arguments lack merit.


         A trial court may exercise its equitable powers to vacate a default judgment. Little v.

King,   160 Wn.2d 696, 704, 161 P. 3d 345 ( 2007); White v. Holm, 73 Wn.2d 348, 351, 438 P. 2d


581 ( 1968).        In so doing, the trial court should exercise its power liberally and equitably to

preserve the parties' substantial rights and do justice between them. Griggs v. Averbeck Realty,

Inc., 92 Wn.2d 576, 582, 599 P. 2d 1289 ( 1979) (                   quoting White, 73 Wn.2d at 351).

         This court reviews a trial court' s order vacating a default judgment for an abuse of

discretion. Yeck          v.   Dep' t   of Labor & Indus., 27 Wn.2d 92, 95, 176 P. 2d 359 ( 1947).       A trial


court abuses its discretion when its decision is manifestly unreasonable, based on untenable

grounds, or made for untenable reasons. In re Marriage ofLittlefield, 133 Wn.2d 39, 46 -47, 940
                           2
P. 2d 1362 ( 1997).




    Bank of America asserts, and Metcalf concedes, that Metcalf does not challenge the trial
court' s decision to vacate the default judgment.

2
    A decision is manifestly unreasonable if it is ( 1) outside the range of acceptable choices, given
the   facts   and   the   applicable      legal   standard; (   2) based on untenable grounds if factual findings
lack support in the record; and ( 3) made for untenable reasons if it misapplies the applicable
legal standard or applies an incorrect legal standard. Littlefield, 133 Wn.2d at 47.




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No. 43103 -3 -II




A.        Creditor Status


          Metcalf first argues that the trial court erred by conclusively determining that Bank of

America was a " creditor" with a right to foreclose on Metcalf s property. This argument

misrepresents the trial court' s order.



          Contrary to Metcalf s assertion, the trial court did not make a conclusive determination

that Bank of America was a creditor with a right to foreclose. Instead, the trial court referred to


Bank of America as a creditor while reserving judgment on Metcalf s allegations, which could

invalidate the mortgage and thus prevent Bank of America from foreclosing on the property.
                                                                                                             3
This is clearly   not a conclusive     determination   of   Bank   of   America' s   status as a creditor.




          The trial court did not abuse its discretion when referring to Bank of America as the

creditor in this mortgage dispute.4 See Littlefield, 133 Wn.2d of 46 -47. Therefore this argument

fails.


B.        Resumption ofMonthly Payments

          Metcalf further argues that the trial court erred by conditioning its injunction against

foreclosure on Metcalf s resumption of monthly mortgage payments. We disagree.




3
    Metcalf further asserts that it is inappropriate to decide issues of fact when resolving a motion
to vacate a default judgment. We do not address this assertion because the trial court did not
determine, as a matter of fact, that Bank of America is a creditor.


4 Because the trial court did not conclusively determine that Bank of America is Metcalf s
creditor and further did not make findings as to the requisites listed in RCW 61. 24. 030 ( the
statute   regulating trustee'   s sales),   we do not address Metcalf s argument that this determination
will prejudice her ability to restrain a trustee' s sale of the property in a possible future
proceeding under RCW 61.24. 130.



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No. 43103 -3 -II




          A trial court may set aside a default judgment " upon such terms as the court deems just."

CR 55( c)( 1). "`      What is just and proper must be determined by the facts of each case, not by a
                                                                                                  S
hard    and   fast   rule applicable   to   all situations regardless of     the   outcome. "'        Griggs, 92 Wn.2d at


582 ( quoting Widucus v. Sw. Elec. Coop., Inc., 26 Ill. App. 2d 102, 109, 167 N.E.2d 799,

    1960)).


          Metcalf appears to claim that the trial court' s condition requiring her to resume monthly

mortgage payments is unjust because Bank of America did not urge the court to impose it. This

claim fails.


          The trial court imposed this condition after asking the parties about the actions they

would take if the default judgment were vacated. Metcalf s counsel stated that she would seek a


temporary injunction         against   foreclosure. Counsel for Bank           of   America   stated, "     I don' t know


exactly what the bank would do. I would imagine if something couldn' t be worked out or the

mortgage payments were not             being      made, a     foreclosure   would   follow." VRP at 15 - 16. The trial


court' s condition required Metcalf to resume monthly payments effective February 2012, the

month after the hearing on the motion to vacate. The trial court did not require Metcalf to make

three years' worth of missed payments between January 2009 and February 2012. By

conditioning a continuing injunction against foreclosure on Metcalf s resumption of monthly

payments, the trial court' s determination was just under the circumstances.




5
    Citing    no   authority, Metcalf   claims      that "[   w]hat is just and proper in a case vacating default
judgment is placing the         parties     in   a position of prior   to the default   order."       Br. of Appellant at 14.
We decline to adopt this hard and fast rule.




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No. 43103 -3 - II




          Given the facts of this case, the trial court' s decision was not manifestly unreasonable,

based on untenable grounds, or made for untenable reasons. See Littlefield, 133 Wn.2d at 46 -47.

Therefore the trial court did not abuse its discretion, and Metcalf s argument fails.6

          Affirmed.


          A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW


2. 06. 040, it is so ordered.




                                                                       Worswick, C. J,




6
    In addition to arguing that the trial court' s order was erroneous, Metcalf also argues that the
trial  court' s order was ambiguous. Specifically, Metcalf asserts that the following passage is

ambiguous:




          Additionally, the Bank of America shall cease and desist from nonjudicial
          foreclosure unless and until such is authorized by the Court or this matter is no
          longer pending provided that [ Metcalf] pay[ s] the monthly mortgage payment due
          under the terms of the note commencing with the February 2012 payment.

CP at 48. Metcalf asserts that the passage could mean that the proviso about Metcalf s monthly
mortgage payment applies either ( 1) if the trial court has authorized foreclosure or if this matter
is no longer pending, or ( 2) only ifthis matter is no longer pending. We do not decide whether
the passage is ambiguous because doing so would not affect the outcome of this appeal. Instead,
the parties may move the trial court to clarify its order.



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