                                                                                          December 31 2008


                                            DA 07-0667

                      IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2008 MT 463N



CURTIS D. WILBER and DEBRA S. WILBER,

              Plaintiffs and Appellants,

         v.

GMAC MORTGAGE CORPORATION,

              Defendant and Appellee.



APPEAL FROM:            District Court of the Fourth Judicial District,
                        In and For the County of Missoula, Cause No. DV 2003-691
                        Honorable Ed McLean, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Darrel L. Moss, Sullivan, Tabaracci & Rhoades, P.C., Missoula, Montana

                For Appellee:

                        Christian T. Nygren, Milodragovich, Dale, Steinbrenner & Nygren P.C.,
                        Missoula, Montana



                                                    Submitted on Briefs: December 10, 2008

                                                               Decided: December 31, 2008


Filed:

                        __________________________________________
                                          Clerk
Justice James C. Nelson delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme

Court and its case title, Supreme Court cause number and disposition shall be included in

this Court’s quarterly list of noncitable cases published in the Pacific Reporter and

Montana Reports.

¶2     This is an appeal by Curtis and Debra Wilber (the Wilbers) from a judgment

entered by the District Court for the Fourth Judicial District, Missoula County, finding in

favor of GMAC Mortgage Corporation (GMAC) on the Wilbers’ claim that GMAC had

breached a forbearance agreement that the parties had negotiated. We affirm.

¶3     The Wilbers took out a loan in May 2000 to purchase a home in the south hills of

Missoula. The loan was secured by a trust indenture on the home. In the spring of 2002,

the Wilbers fell into arrears on the loan due to the failure of their business.        On

September 9, 2002, GMAC, who had purchased the loan from the original lender, sent

the Wilbers a breach of contract letter.        Shortly thereafter, the Wilbers filed for

bankruptcy.

¶4     On February 4, 2003, the Wilbers entered into a forbearance agreement with

GMAC. Under the terms of this agreement, the Wilbers were to make an initial payment

of $6,000 to GMAC on or before February 10, 2003, and then a number of payments

commencing on March 15, 2003. On February 7, 2003, at the Wilbers’ request, GMAC




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modified the agreement by changing the date of the initial payment to February 12, 2003.

The Wilbers sent the initial payment of $6,000 to GMAC by that date.

¶5     After receipt of the initial payment, GMAC sent the Wilbers a statement indicating

that the date of the next payment under the forbearance agreement was April 15, 2003,

rather than March 15, 2003, as previously agreed.        A short time later, the Wilbers

received a second statement with this same information. The Wilbers contended that

when they called GMAC to confirm the date of their next payment, they were told that

payment was due on April 15, 2003. Relying on this information, the Wilbers did not

make a payment on March 15, 2003.

¶6     Testimony at trial revealed that because the initial payment occurred after the

original due date, GMAC’s computers entered the initial payment as the Wilbers’ March

payment instead of their February payment.         Because of this error, the Wilbers’

statements incorrectly showed that another payment was not due until April 15, 2003.

¶7     On March 25, 2003, the Wilbers received a telephone call from GMAC informing

them that they were past due on their payments and that if payment was not received by

March 31, 2003, GMAC would foreclose. The Wilbers received a statement to that effect

a few days later. The Wilbers did not act on these notices and, instead, sent their

payment to GMAC to arrive by April 15, 2003.

¶8     GMAC commenced a trust indenture foreclosure action against the Wilbers on

May 7, 2003, and on May 12, 2003, GMAC recorded a Notice of Trustee’s Sale with the

Clerk and Recorder of Missoula County. GMAC notified the Wilbers of the foreclosure

action and the trustee’s sale by certified mail dated May 16, 2003.


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¶9     On August 19, 2003, the Wilbers brought this action alleging that GMAC

breached the forbearance agreement. The Wilbers also alleged that GMAC acted in bad

faith and committed fraudulent acts in attempting to collect on the underlying loan.

GMAC counterclaimed for damages arising out of the alleged breach of the forbearance

agreement by the Wilbers. GMAC sought foreclosure on the underlying security (the

Wilbers’ house) in accordance with the trust indenture, along with the recovery of

attorney’s fees and costs.

¶10    A jury trial was held on May 15, 17 and 18, 2007. The jury determined that

GMAC did not breach the forbearance agreement. Instead, the jury determined that the

Wilbers had breached the agreement and that GMAC was entitled to recover damages.

The parties had agreed prior to trial that the amount of any damages to be awarded would

be determined by the court after trial. Thus, the District Court, based on the jury’s

verdict, entered a Judgment on Verdict in favor of GMAC in the amount of $230,433.77.

¶11    In addition, the District Court held a hearing on September 24, 2007, regarding

GMAC’s claim for attorney’s fees. At the hearing, the court heard expert testimony on

the reasonableness of the attorney’s fees requested, after which the court awarded GMAC

attorney’s fees in the amount of $83,528. The court stated that it found the attorney’s

fees to be reasonable as this litigation had taken place over a lengthy period of time; had

consumed three court files; and both sides had vigorously prosecuted the case on behalf

of their clients.

¶12    The Wilbers appeal the District Court’s award of damages and attorney’s fees

claiming that the District Court entered judgment on the underlying loan and not on the


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forbearance agreement which was the only agreement between the parties.                 They

complain that the loan itself was never introduced into evidence. The Wilbers also

contend that the court erred in awarding attorney’s fees and costs when the forbearance

agreement did not provide for such an award.

¶13    GMAC argues that all of the parties clearly understood that the terms and

conditions of the trust indenture would be incorporated into the forbearance agreement

and that the trust indenture provides for an award of attorney’s fees. GMAC also argues

that it was not required to introduce evidence at trial of the underlying loan because there

had been a stipulation of facts as to the existence of the loan.

¶14    We have determined to decide this case pursuant to Section I, Paragraph 3(d) of

our 1996 Internal Operating Rules, as amended in 2003, which provides for

memorandum opinions. Having reviewed the record, the District Court’s decision, and

the parties’ arguments on appeal, we hold that the Wilbers failed to establish error by the

District Court. In their pretrial order, the Wilbers stated that the fact that they had a loan

with GMAC “served by a Trust Indenture on real property” was a fact that they “admitted

and agreed to be true, and require[d] no proof . . . .” Moreover, the Trust Indenture

provided for the payment of reasonable attorney’s fees. Thus, it is manifest on the face of

the briefs and the record before us that this appeal is without merit because the legal

issues are clearly controlled by settled Montana law which the District Court correctly

interpreted.

¶15    Affirmed.




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                              /S/ JAMES C. NELSON



We Concur:

/S/ JOHN WARNER
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS




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