Bank of New York Mellon, f/k/a Bank of New York, as Trustee, on behalf of the Holders of the Alternative Loan Trust 2007-16CB Mortgage Pass Through Certificates, Series 2007-16-CB, its Successors and Assigns, Plaintiff-Appellee,
Timothy Peterson and Dyan Frances Parker, Defendants-Appellants.
Archuleta County District Court No. 15CV10 Honorable Gregory
G. Lyman, Judge
Announced December 13, 2018 Akerman, LLP, Justin D. Balser,
Taylor T. Haywood, Denver, Colorado, for Plaintiff-Appellee
K. Drazic, Loma, Colorado, for Defendants-Appellants
1 Plaintiff-Appellee, Bank of New York Mellon, formerly known
as Bank of New York (the Bank), filed an unlawful detainer
action after acquiring title to a house through foreclosure.
Defendants-Appellants, Timothy Peterson and Dyan Frances
Parker, appeal the district court's judgment granting the
2 Peterson and Parker assert that the 2015 foreclosure and
the resulting judgment of possession cannot be legally
enforced because the six-year statute of limitations (for an
action for default on a promissory note) had already
expired. In particular, they claim that the Bank
triggered the statute of limitations in 2008 when it
accelerated the obligation on the note.
3 The Bank admits that it accelerated the note in 2008 by
initiating foreclosure proceedings, but it argues that it
abandoned the acceleration in 2010 by withdrawing the
foreclosure and providing Peterson's son (the borrower)
another opportunity to cure the default. The Bank asserts
that the abandonment restored the note's original
maturity date for purposes of accrual. We agree with the Bank
and, therefore, we affirm.
4 On May 14, 2007, the borrower obtained a $261, 000 loan
evidenced by a promissory note for a house in Archuleta
County, Colorado. The promissory note required monthly
payments through June 1, 2037, and contained an optional
acceleration clause. The borrower secured the loan with a
deed of trust on the property, and the Bank was the holder of
the note and deed of trust. Peterson is the borrower's
5 The borrower soon thereafter stopped making payments. On
October 17, 2007, he received a letter from the Bank titled
"NOTICE OF DEFAULT AND
ACCELERATION." The letter provided that
the borrower had the "right to cure the default,"
but that if he did not cure by November 16, 2007, the
mortgage payments will be accelerated with
the full amount remaining accelerated and becoming due and
payable in full, and foreclosure proceedings will be
initiated at that time.
(Emphasis in original.)
6 The borrower received another letter, this time demanding
that he cure the default by December 16, 2007. The borrower
did not respond to either letter.
7 The Bank did not take any action on the default until
October 2008. Meanwhile, the borrower and his father,
Peterson, executed an "Option to Purchase"
agreement stating that Peterson would make the monthly
payments due on the note. The agreement purported to grant
Peterson "full power of attorney," including
"negotiating refinancing, payment plans, financial, and
all legal issues" for the property.
8 After executing the agreement, Peterson and Parker began
occupying the property.
9 Then, in October 2008, the Bank initiated foreclosure
proceedings (the 2008 foreclosure). On December 5, 2008, the
Bank moved for a court order authorizing the sale of the
property pursuant to C.R.C.P. 120. But later that month, the
Bank approved the borrower's request for a loan
modification, whereby the borrower would owe a $2017.97
monthly payment. That same month, Peterson remitted a
$2017.97 check on the borrower's behalf. But neither
Peterson nor the borrower made any more payments.
10 Even so, on March 26, 2010, the Bank withdrew the 2008
foreclosure. It subsequently sent the borrower a new
acceleration warning letter providing him another opportunity
to cure the default.
11 Nearly five years later, in January 2015, the Bank
initiated and pursued foreclosure proceedings (the January
2015 foreclosure) and the district court authorized the
property's sale.The Bank purchased the property in the
12 Two months later, the Bank commenced the present action to
acquire possession and evict Peterson and Parker from the
13 Peterson and Parker filed an answer and affirmative
defense and counterclaims. They asserted that they had
superior title to the property, contending that the statute
of limitations expired before the January 2015 foreclosure.
They argued that the Bank accelerated the loan in 2008, which
triggered the six-year statute of limitations, and, thus, the