BANK OF NEW YORK MELLON, f/k/a Bank of New York, as Trustee, ON BEHALF OF the HOLDERS OF THE ALTERNATIVE LOAN TRUST 2007-16-CB MORTGAGE PASS THROUGH CERTIFICATES, Series 2007-16-CB, its Successors and Assigns, Plaintiff-Appellee,
Timothy 1 and Dyan Frances Parker, Defendants-Appellants.
Modified on Denial of Rehearing January 10, 2019
Archuleta County District Court No. 15CV10, Honorable Gregory
G. Lyman, Judge
LLP, Justin D. Balser, Taylor T. Haywood, Denver, Colorado,
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 courts judgment
granting the Bank possession.
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 Petersons son (the borrower)
another opportunity to cure the default. The Bank asserts
that the abandonment restored the notes 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 borrowers
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 borrowers 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 borrowers 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 ...