FILED 

### 011J ', T OF APPEALS DIVISMI 11 2013 

### NOY 26 AN 9: 09 STATE S'dIN ON 0NATY
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II SHARIN R. METCALF, and BRYAN BOOREN, Appellants,

V. CFA/NW MORTGAGE PROFESSIONALS, a Washington State mortgage broker; CFA FINANCIAL SERVICES, INC., a mortgage lender, and BANK OF. AMERICA ( as successor to Countrywide Home Loans, a mortgage lender), No. 43103 -3 -II

UNPUBLISHED OPINION
WORSWICK, C.J. — In this mortgage-related dispute, Sharin Metcalf and Bryan Booren appeal from an order vacating their defaultjudgment against CFA/NW Mortgage Professionals, CFA Financial Services, Inc., and Bank of America (collectively, Bank of America). Metcalf 

### and Booren do not dispute the judgment' s vacation. Instead, they argue that the trial court abused its discretion because the order ( 1) conclusively determined that Bank ofAmerica was a creditor and (2) required Metcalfto make monthly mortgage payments as a condition of an injunction preventing Bank of America from 

### foreclosing. Because the order did not conclusivelyNo. 43103 - 3 -II


### determine Bank ofAmerica's status, and because the trial court did not abuse its discretion by imposing proper conditions, we affirm. FACTS

On January 9, 2006, Sharin Metcalf and her son, Bryan Booren, (collectively, " Metcalf') 

### obtained two mortgages totaling $450,000 to finance the purchase of real property located in Sequim. Metcalf stopped making monthly payments " in or around January 2009." Clerk' s Papers ( CP) at 165. In June 2010, Metcalf filed a ten - count complaint against Bank ofAmerica. The complaint claimed ( 1) breach of contract; (2) deceptive and predatory 

### lending practices; ( 3) bad faith;. ( 4) fraud and misrepresentation; (5) unconscionability; ( 6) breach ofthe implied covenant
of good faith and fair 

### dealing; (7) breach of

### fiduciary duty; (8) elder abuse of Metcalf,who was a
senior citizen, and associated Consumer Protection Act violations; (9) conspiracy to conceal the true nature ofthe loans; and ( 10) intentional infliction of emotional distress. Metcalf served Bank ofAmerica with the complaint and a summons on August 3, 2010. 

### Bank ofAmerica did not respond, and in July 2011, Metcalf moved for, and was awarded, a defaultjudgment. The judgment awarded Metcalf $ 537, 000 in damages and enjoined 

### Bank ofAmerica from foreclosing on the property " unless and witil this defaultjudgment is
vacated or quashed." CP at 222. 

### Nearly four months later, in November 2011, Bank ofAmerica moved to vacate the defaultjudgment. Metcalfopposed the motion, arguing in part that vacating thejudgment would prejudice her because she was " at risk ofbeing foreclosed upon despite the fact that [she was]

2No. 43103 -3 - II

working with the bank on the payments." Verbatim Report of Proceedings (VRP) at 13. But the trial court noted that, if it vacated the defaultjudgment, whether Bank of America could foreclose " would still be argued on the merits." VRP at 14. The trial court vacated the defaultjudgment with an order stating that Bank ofAmerica remain[ s] a creditor of [Metcalf] under the terms of the mortgage." CP at 46. But the order 

### further stated that "the mortgage may at some point be deemed invalid under [Metcalfs] complaint." CP at 46. 

### In addition, the trial court imposed terms on Bank ofAmerica. Specifically, the trial 

### court ordered Bank ofAmerica to pay Metcalfs costs and attorney fees related to the default judgment and enjoined Bank ofAmerica from foreclosing " unless and until such is authorized by the Court or this matter is no longer pending provided that [Metcalf]pay[s] the monthly mortgage payment due under the terms ofthe note commencing with the February 2012 payment." CP at 48. 

### Metcalf appeals two provisions ofthe order vacating the defaultjudgment. See RAP 2.2( a)( 10). After Metcalfappealed, Bank ofAmerica agreed to allow Metcalfto make monthly mortgage payments to the court registry. Resp' t' s Mot. for Additional Evidence on Review, Metcalfv. CFA /

NW Mortg. 

### Prof'ls, No. 43103 -3 - II (Oct. 15, 2012), 

### at Ex. A,granted by Ruling, Metcalf,No. 43103 -3 -II ( Wash. Ct. App. Nov. 13, 2012); see RAP 9. 11.No. 43103 -3 -II

ANALYSIS



### Metcalfargues that the trial court erred by including two provisions in the order vacating the defaultjudgment: (1) a provision that conferred creditor status on Bank ofAmerica and (2) another provision that conditioned the trial court' s injunction against foreclosure on Metcalfs resumption of monthly mortgage payments.' These arguments lack merit. 

### A trial court may exercise its equitable powers to vacate a defaultjudgment. Little v. King, 160 Wn.2d 696, 704, 161 P. 3d 345 ( 2007); White v. Holm, 73 Wn.2d 348, 351, 438 P. 2d 581 ( 1968). 

### In so doing, the trial court should exercise its power liberally and equitably to preserve the parties' substantial rights and do justice between them. Griggs v. Averbeck Realty, Inc., 92 Wn.2d 576, 582, 599 P. 2d 1289 ( 1979) ( 

### quoting White, 73 Wn.2d at 351). 

### This court reviews atrial court' s order vacating a defaultjudgment for an abuse of discretion. Yeck v. Dep' t ofLabor & Indus., 27 Wn.2d 92, 95, 176 P. 2d 359 ( 1947). A trial 

### court abuses its discretion when its decision is manifestly unreasonable, based on untenable grounds, or made for untenable reasons. In re Marriage ofLittlefield, 133 Wn.2d 39, 46 - 47, 940 P.2d 1362 ( 1997). 2

Bank ofAmerica asserts, and Metcalf concedes, that Metcalf does not challenge the trial court' s decision to vacate the defaultjudgment.
2 

### A decision is manifestly unreasonable if it is (1) outside the range ofacceptable choices, given the facts and the applicable legal standard; (2) based on untenable grounds if factual findings lack support in the record; and ( 3) made for untenable reasons if it misapplies the applicable legal standard or applies an incorrect legal standard. Littlefield, 133 Wn.2d at 47.
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A. Creditor Status 

### Metcalffirst argues that the trial court erred by conclusively determining that Bank of America was a " creditor" with a right to foreclose on Metcalfs property. This argument misrepresents the trial court' s order. 

### Contrary to Metcalfs assertion, the trial court did not make a conclusive determination that Bank ofAmerica was a creditor with a right to foreclose. Instead, the trial court referred to 

### Bank ofAmerica as a creditor while reserving judgment on Metcalfs allegations, which could 

### invalidate the mortgage and thus prevent Bank ofAmerica from foreclosing on the property. This is clearly not a conclusive determination of Bank ofAmerica' s status as a creditor.3 The trial court did not abuse its discretion when referring to Bank ofAmerica as the 

### creditor in this mortgage dispute.4 See Littlefield, 133 Wn.2d of46 - 47. Therefore this argument fails. B. 

### Resumption ofMonthly Payments 

### Metcalffurther argues that the trial court erred by conditioning its injunction against foreclosure on Metcalfs resumption ofmonthly mortgage payments. We disagree.

3 Metcalffurther asserts that it is inappropriate to decide issues offact when resolving a motion to vacate a defaultjudgment. We do not address this assertion because the trial court did not determine, as a matter of fact, that Bank ofAmerica is a creditor. 

### 4 Because the trial court did not conclusively determine that Bank ofAmerica is Metcalfs creditor and further did not make findings as to the requisites listed in RCW 61. 24. 030 (the statute regulating trustee' s sales), we do not address Metcalfs argument that this determination 

### will prejudice her ability to restrain a trustee' s sale ofthe property in a possible future proceeding under RCW 61.24. 130.

5No. 43103 - 3 -II


### A trial court may set aside a defaultjudgment "upon such terms as the court deemsjust." CR 55( c)( 1). "` 

### What isjust and proper must be determined bythe facts of each case, not by a hard and fast rule applicable to all situations regardless of the outcome. "' S Griggs, 92 Wn.2d at 

### 582 (quoting Widucus v. Sw. Elec. Coop., Inc., 26 Ill.App. 2d 102, 109, 167 N.E.2d 799, 1960)).

### Metcalf appears to claim that the trial court' s condition requiring her to resume monthly mortgage payments is unjust because Bank of America did not urge the court to impose it. This claim fails. The trial court imposed this condition after asking the parties about the actions they would take if the defaultjudgment were vacated. Metcalfs counsel stated that she would seek a temporary injunction against foreclosure. Counsel for Bank of America stated, " I don' t know 

### exactly what the bankwould do. I would imagine ifsomething couldn't be worked out or the
mortgage payments were not being made, a foreclosure would follow." VRP at 15 -16. The trial 

### court' s condition required Metcalfto resume monthly payments effective February 2012, the month after the hearing on the motion to vacate. The trial court did not require Metcalfto make three years' worth of missed payments between January 2009 and February 2012. By 

### conditioning a continuing injunction against foreclosure on Metcalfs resumption ofmonthly payments, the trial court' s determination was just under the circumstances.

5 Citing no authority, Metcalf claims that "[

### w]hat isjust and proper in a case vacating default judgment is placing the parties in a position of prior to the default order." Br. of Appellant at 14. We decline to adopt this hard and fast rule.
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### Given the facts ofthis case, the trial court' s decision was not manifestly unreasonable, based on untenable grounds, or made for untenable reasons. See Littlefield, 133 Wn.2d at 46 - 47. 

### Therefore the trial court did not abuse its discretion, and Metcalfs argument fails.6

Affirmed. 

### A majority ofthe panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06. 040, it is so ordered.
Worswick, C. J,

6 

### In addition to arguing that the trial court' s order was erroneous, Metcalf also argues that the trial court' s order was ambiguous. 

### Specifically, Metcalf asserts that the following passage is ambiguous: 

### Additionally, the Bank of America shall cease and desist from nonjudicial foreclosure unless and until such is authorized by the Court or this matter is no 

### longer pending provided that [Metcalf] pay[s] the monthly mortgage payment due under the terms ofthe note commencing with the February 2012 payment. CP at 48. Metcalf asserts that the passage could mean that the proviso about Metcalfs monthly mortgage payment applies either ( 1) ifthe trial court has authorized foreclosure or ifthis matter 

### is no longer pending, or (2) only ifthis matter is no longer pending. We do not decide whether the passage is ambiguous because doing so would not affect the outcome ofthis appeal. Instead, the parties may move the trial court to clarify its order.

7