Citimortgage, Inc. v. Moseley, 012021 WACA, 53819-9-II

Docket Nº53819-9-II
Opinion JudgeGLASGOW, J.
Party NameCITIMORTGAGE, INC., Respondent, v. PAUL A. MOSELEY, Appellant, MICHELLE L. MOSELEY; LUDLOW MAINTENANCE COMMISSION; DOES 1-10 INCLUSIVE; UNKNOWN OCCUPANTS OF THE SUBJECT REAL PROPERTY; PARTIES IN POSSESSION OF THE SUBJECT REAL PROPERTY; PARTIES CLAIMING A RIGHT TO POSSESSION OF THE SUBJECT PROPERTY; ALL OTHER UNKNOWN PERSONS OR PARTIES CLAIMING ...
Judge PanelWe concur: Maxa, P.J. Cruser, J.
Case DateJanuary 20, 2021
CourtCourt of Appeals of Washington

CITIMORTGAGE, INC., Respondent,

v.

PAUL A. MOSELEY, Appellant,

MICHELLE L. MOSELEY; LUDLOW MAINTENANCE COMMISSION; DOES 1-10 INCLUSIVE; UNKNOWN OCCUPANTS OF THE SUBJECT REAL PROPERTY; PARTIES IN POSSESSION OF THE SUBJECT REAL PROPERTY; PARTIES CLAIMING A RIGHT TO POSSESSION OF THE SUBJECT PROPERTY; ALL OTHER UNKNOWN PERSONS OR PARTIES CLAIMING ANY RIGHT, TITLE, ESTATE, LIEN, OR INTEREST IN THE REAL ESTATE DESCRIBED IN THE COMPLAINT HEREIN, Defendants.

No. 53819-9-II

Court of Appeals of Washington, Division 2

January 20, 2021

UNPUBLISHED OPINION

GLASGOW, J.

Paul A. Moseley appeals the trial court's denial of his motion to dismiss an order of sale in a foreclosure. He claims CitiMortgage Inc. was not the proper plaintiff to proceed with foreclosure because CitiMortgage transferred servicing of Moseley's mortgage loan to Central Loan Administration & Reporting (Cenlar). Moseley also claims Michelle L. Moseley, 1 his ex-wife, was not a proper defendant in the foreclosure action because she entered into a settlement agreement with CitiMortgage.

Moseley fails to show that CitiMortgage is no longer the holder of the note with standing to enforce it. Moseley also fails to show how the settlement agreement between CitiMortgage and Michelle precludes the foreclosure and sale of the property. We affirm the trial court's order denying Moseley's motion to dismiss the order of sale.

FACTS

Moseley and Michelle are divorced. In December 2016, CitiMortgage filed a complaint for foreclosure against a property owned by the Moseleys. In September 2017, summary judgment was granted in favor of CitiMortgage.

In September 2018, Michelle and CitiMortgage entered into a settlement agreement. Michelle agreed to the judgment of foreclosure issued to CitiMortgage. She further agreed to voluntarily dismiss a motion to vacate the foreclosure judgment and to not oppose an order of sale.

About a month later, in October 2018, CitiMortgage sent a letter to the Moseleys notifying them that CitiMortgage had entered into "an agreement" with Cenlar wherein CitiMortgage would "utilize Cenlar FSB to perform various servicing functions." Resp. Br., App. A. The letter explained that the new servicer, Cenlar, would begin to collect mortgage loan payments from the Moseleys. The letter clarified, "Nothing else about your mortgage loan will change." Id.

Cenlar's Loss Mitigation Department then sent a letter in November 2018 informing the Moseleys of possible options for avoiding foreclosure sale. The letter stated, "We're concerned about your missed mortgage payments and want to offer our assistance in resolving your delinquency." Clerk's Papers (CP) at 004. The letter advised the Moseleys to call, e-mail, or fax to receive assistance.

In June 2019, an order of sale was issued to CitiMortgage. Moseley received a similar letter from Cenlar again in November 2019, stating, "As your mortgage servicer, we are concerned about your recently missed payment(s) and would like to offer our assistance." Br. of Appellant, Attach. A.

Moseley filed a motion to dismiss the order of sale, claiming that CitiMortgage had sold its interest to a third party debt collector and released Michelle from the debt obligation, so neither of these two parties was proper. CitiMortgage filed a response, arguing that it was a rightful party as the holder of the note and Michelle was still an interested party who "per the stipulation agrees to execute any further deed or document that may be necessary to convey clear title." CP at 018. CitiMortgage also asserted that Moseley lacked standing to argue on Michelle's behalf.

The trial court denied Moseley's motion, finding that the order of sale was proper pursuant to RCW 61.12.060 and .090. The clerk's minutes further state that the trial court found Moseley's motion "had no basis and was frivolous." CP at 027. Moseley appeals this order denying his motion to dismiss the order of sale.

CitiMortgage canceled the order of sale that was issued on June 26, 2019. According to CitiMortgage, Moseley "currently has a bankruptcy pending, barring further issuance of any orders of sale."Resp. Br. at 2.

ANALYSIS

I. Challenge to CitiMortgage as Plaintiff

A. Standing to Foreclose

Moseley contends that "there can only be one servicer that represents the 'Lender' and only the current Servicer has standing to foreclose." Br. of Appellant at 12. Moseley also contends the foreclosure is defective because the Mortgage Electronic Registration System (MERS) is listed as a beneficiary on the deed of trust. We disagree.

There are both enforcement rights and ownership rights associated with promissory notes. "The holder of a note is the party entitled to enforce it." Villegas v. Nationstar Mortg., LLC, 8 Wn.App. 2d 878, 889-90, 444 P.3d 14 (citing RCW 62A.3-301), review denied, 194 Wn.2d 1006 (2019). "The owner has the right to the economic benefits of the note, such as monthly mortgage payments and foreclosure proceeds." Brown v. Dep't of Commerce, 184 Wn.2d 509, 524, 359 P.3d 771 (2015). The Washington Supreme Court has explained that the person entitled to enforce the note "and the owner of the note can be the same entity, but they can also be different entities." Id. Washington law provides, "A person may be a person entitled to enforce the...

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