DA 07
- 0667 IN THE SUPREME COURT OF THE STATE OF MONTANA

2008 MT 463N
CURTIS D. WILBER and DEBRA S. WILBER, Plaint iffs 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 20 03
- 691 Honorable Ed McLean, Presiding Judge COUNSEL OF RECORD:

For Appellant: Darrel L. Moss , Sullivan, Tabaracci & Rhoades, P.C., Missoula , M ontana For Appellee: Chr ist ian T
. Ny

gren , Milodragovich, Dale, Steinbrenner & Nygren P.C., Missoula, M ontana Submitted on Briefs: December 10, 2008 Decided: December 31, 2008 Filed:

__________________________________________ Clerk December 31 20082

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 me morandum 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 C ourt ’ s quarterly list o f noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 This is an appeal by Curtis and Debra Wilber (the Wilbers) from a j udgment entered by the District Court for the Fourth Judicial District, Missoula County, finding in favor of GMAC Mortgage Corporation (GMAC) o n the Wilbers’ claim that GMAC had breached a forbe arance agreement that the parties had negotiated. We affirm. ¶3 The Wilbers took out a loan in May 2000 to purchase a homein the s outh hills of Missoula. The loan was secured by a trust indenture on the home
. In the spring of 2002, the Wilbers fell intoarrears on the loand ue 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
. S hortly thereafter, th e Wilbers filed for bankruptcy. ¶4 On February 4, 2 003, 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. O n February 7, 2003, at the Wilbers’ request, GMAC3

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 s ent the Wilbersastatement 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 tri al 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. B ecause of this error, the Wilbers’ statements incorrectly sho wed 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 forecl ose. 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 arriveby April 15, 2003. ¶8 GMAC commenced atrust 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, 2003.4

¶9 On August 19, 20 03 , theW ilbers 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 damage s arising out of the alleged breach of the forbearanc e 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 o nM ay 15, 17 and 18, 2007
. The jury determined that GMAC did not breach the forbearance agreement. In stead, the jury determined that the Wilbers had breached the agreement and that GMAC wa s entitled to recover damages. The parties had agreed prior to trial that the amount of any damages to be awarded would be determinedb y the c ourt a fter trial. Thus, the District Court, based on the jury’s verdict, entered a Judgment on Verdict infavor of GMAC inthe 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 fe es in the amount of $83,528
. The court stated that it f ound 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 bo th 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 theunderlying loan and not on the5

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 parti es 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 . GMACalso argues that it was not required to introduce evidence at trial of the underlying loan because there had been a stipulation of facts asto 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 pro vides for
me morandum opinions. Having reviewed the record, the District Court’s decision , and the parties’ arguments on appeal, w e 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
. . . .” M oreover, the Trust Indenture provided for the payment of reasonable attorn ey’s fees. Thus, it is manifest on the face of the briefs and the record before us that thisappeal is without merit because the legal issues are clearly controlled by settled Montana law which the District Court correctly interpreted
. ¶15 Affirmed.6 /S/ JAM ESC. NELSON

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