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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Duenas-Rendon v. Wells Fargo Bank N.A. (8/14/2015) sp-7034

Duenas-Rendon v. Wells Fargo Bank N.A. (8/14/2015) sp-7034

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

         Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

         303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  



MARIA D. DUENAS-RENDON,                               )  

                                                      )        Supreme Court No. S-15596  

                           Appellant,                 )  

                                                      )        Superior Court No. 3AN-12-06466 CI  

         v.                                           )  

                                                      )        O P I N I O N  

WELLS FARGO BANK, N.A.,                               )  

Successor to Wells Fargo Home                         )        No. 7034 - August 14, 2015  

Mortgage, Inc.,                                       )  


                           Appellee.                  )  


                  Appeal from the Superior Court of the State of Alaska, Third  


                  Judicial District, Anchorage, John Suddock, Judge.  

                  Appearances:  Swan  T.  Ching,  Anchorage,  for  Appellant.  

                  Michael J. Parise and Michael B. Baylous, Lane Powell LLC,  


                  Anchorage, for Appellee.  

                  Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  


                  Bolger, Justices.   

                  MAASSEN, Justice.  


                  A borrower sued her mortgage lender, claiming that its foreclosure on her  


home violated the terms of their contract.  On appeal she argues that the lender waived  

its  right  to  foreclose  when  it  continued  to  accept  monthly  mortgage  payments  after  

recording  a  notice  of  default,  leading  her  to  believe  that  it  no  longer  intended  to  


----------------------- Page 2-----------------------

foreclose.  The lender responds that it closely followed the contractual procedures for  

default and acceleration and that its acceptance of payments did not waive its right to  


foreclose in light of the parties' agreement permitting it to do so once the loan was in  

default.  The superior court granted summary judgment to the lender.   


                   The borrower appeals.  She argues that the superior court erred in granting  

summary judgment and also that it should have addressed an outstanding discovery  

motion before deciding the case in the lender's favor.  Finding no error, we affirm.  


          A.       Facts  


                   In  2003  Maria  Duenas-Rendon  and  her  then-husband  Enrique  Barajas  


purchased an Anchorage home for $50,000 with the help of a mortgage loan from Wells  

Fargo Bank1 in the amount of $47,500. The terms of the loan were outlined in two  

documents:    a  promissory  note  and  a  deed  of  trust.    It  is  undisputed  that  these  two  

documents constitute the agreement between Duenas-Rendon and Wells Fargo.   

                   1.        The parties' agreement  

                   The promissory note provides that the borrowers will be in default if they  

"do  not  pay  the  full  amount  of  each  monthly  payment  on  the  date  it  is  due."    The  


promissory note has an acceleration clause authorizing the bank, on written notice of  


default, to require the borrowers "to pay immediately the full amount of Principal which  


has not been paid and all the interest that [the borrowers] owe on that amount," as well  


as expenses such as attorney's fees.  The promissory note also provides that the bank's  


failure to invoke the acceleration clause in the event of a default does not waive its right  

to invoke it later.  



                   Duenas-Rendon's  agreement  was  with  Wells  Fargo  Home  Mortgage,  

Incorporated; Wells Fargo Bank, N.A.  is its successor by merger.  

                                                            - 2 -                                                        7034  

----------------------- Page 3-----------------------


                     The provisions of the deed of trust are somewhat redundant but also more  


detailed.  For example, the deed of trust gives the bank options on how to treat "any  

payment or partial payment" that is "insufficient to bring the Loan current":  the bank  


may return the payment or accept it, though acceptance is "without waiver of any rights  


hereunder or prejudice to [the bank's] rights to refuse such payment or partial payments  

in the future."  If the bank accepts a partial payment, it may apply the payment to the  


loan  or  hold  it  "until  Borrower  makes  payment  to  bring  the  Loan  current."    If  the  


borrowers do not bring the loan current "within a reasonable period of time," the bank  

may either apply the held funds to the loan "or return them to the Borrower."  


                     The deed of trust also addresses acceleration of the loan.  It requires notice  


to the borrowers that the bank intends to exercise its right to accelerate, and it specifies  


the notice's contents.  It provides that "[i]f the default is not cured on or before the date  


specified in the notice, Lender at its option may require immediate payment in full of all  


sums secured by this [deed of trust] without further demand."  It also describes the  


borrowers' right to have enforcement of the deed of trust discontinued and to reinstate  


the loan on certain conditions:   that the borrowers pay all amounts that were due before  

acceleration, cure any other defaults, pay the expenses of enforcement, and give other  

reasonable assurances to the bank if requested.  And it describes the bank's right to  


invoke either judicial or non-judicial foreclosure, to sell the property at public auction,  

and to apply the proceeds of sale to expenses and the remaining debt.   


                     The  deed  of  trust  also  has  a  general  non-waiver  provision.    A  section  


entitled "Borrower Not Released; Forbearance By Lender Not a Waiver" provides in part  


that "[a]ny forbearance by Lender in exercising any right or remedy including, without  


limitation, Lender's acceptance of payments . . . in amounts less than the amount then  

due, shall not be a waiver of or preclude the exercise of any right or remedy."   

                                                               - 3 -                                                         7034

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                     2.        The loan history   

                     Duenas-Rendon and Barajas made their monthly mortgage payments mostly  


on schedule for the first five years.   The couple separated sometime in 2006 or 2007,  

and Duenas-Rendon continued to occupy the home and make the payments.  She failed  


to make payments in July, November, and December 2008, apparently in part because  


she wrote checks on a joint account that had been closed following her separation from  


her husband.   Wells Fargo sent an acceleration demand letter in September 2008 and  


another one in October 2008, but both letters were returned as undeliverable.  Bank  

employees  tried  to  reach  the  couple  by  telephone  on  several  occasions  but  without  


success.  In November 2008 Duenas-Rendon notified Wells Fargo that she had a new  


address in Oregon, and the bank sent an acceleration letter to the new address.  The letter  

stated that the loan was in default and gave the required notice that Wells Fargo intended  

to invoke its right to accelerate the loan and initiate a foreclosure action if the default was  


not cured within 30 days.  When the December deadline came and went, Wells Fargo  

referred the loan to the trustee for foreclosure.   

                     Duenas-Rendon  testified  in  her  deposition  that  she  did  not  receive  the  

November 2008 letter giving her 30 days' notice of acceleration.  She does concede,  


however, that she provided Wells Fargo with the Oregon address, that she received  


something from Wells Fargo in the mail at that address, and that she remained in Oregon  

          2          Their  payment in October 2003 included not just the amount due but also             

an $8,000 prepayment that reduced the principal but, under the terms of the promissory   

note, did not otherwise effect any "changes in the due date or in the amount of [the]   

monthly payments."  

          3          Wells  Fargo's  records  reflected  that  two  payments  were  processed  on  

December 16, 2008, but reversed a week later for insufficient funds.  

                                                                - 4 -                                                         7034

----------------------- Page 5-----------------------


until late November 2008. In December she gave Wells Fargo another new address, that  

of her sister's home in Anchorage.  


                    On January 14, 2009, the trustee recorded a Notice of Default Under Deed  

of Trust announcing its intention to sell Duenas-Rendon's home at public auction on  


April 17.  Duenas-Rendon was working in Dutch Harbor at the time and was largely out  


of touch.  In the meantime, however, she arranged for her sister to make four monthly  



mortgage payments for her:  on February 18, March 3, March 11, and April 3, 2009. 

Wells Fargo processed all four payments but, due to the pending foreclosure, held the  


funds "in suspense" rather than applying  them toward the loan.  The superior court  


concluded that these four payments were all returned to the borrowers within weeks after  

they were made, though Duenas-Rendon disputed this.  

                    The auction occurred as scheduled in April 2009, and the home was sold  


for the amount of the loan principal, $47,500.  Duenas-Rendon received a check for  


$ 1,237.80 from the proceeds.  She does not dispute that by the end of 2008, when Wells  


Fargo accelerated the note, she was three months behind in her payments.  Nor does she  


dispute that the four payments made in 2009 were insufficient to cure the default, even  

if Wells Fargo had elected to apply them to the loan rather than holding them.  

          B.        Proceedings  

                    In April 2012 Duenas-Rendon filed a complaint in superior court alleging  


breach of contract and defamation and seeking damages for lost equity and injury to her  


                    Duenas-Rendon had made one other payment on January 6, 2009, after   

acceleration (December 16, 2008) and just prior to the January 14 notice of default.  This                   

2009  payment  does  not  play  a  part  in  the  waiver  issue  on  appeal  because  Duenas- 

Rendon's argument hinges on the bank's continued acceptance of payments after notice  


of default.  

                                                              - 5 -                                                        7034

----------------------- Page 6-----------------------


credit.     She asserted that the foreclosure was a breach of contract because she was not  


in default at the time it occurred:  she claimed she made all required monthly payments  

to Wells Fargo, that Wells Fargo rejected certain payments without "justifiable reasons,"  

and that Wells Fargo accepted a number of monthly payments after claiming default but  

refunded only two of them.  


                    Both parties moved for summary judgment on the contract claim.  Wells  

Fargo argued that regardless of whether it had returned the 2009 payments made after  

the notice of default, foreclosure was proper because the loan was unquestionably in  


default when accelerated, when referred to foreclosure, when the notice of default was  

recorded, and when the foreclosure sale occurred.  Duenas-Rendon's cross-motion for  


summary  judgment  raised  several  theories,  only  one  of  which  she  maintains  in  this  

appeal:  that Wells Fargo waived its right to foreclose by accepting the four monthly  

payments after the notice of default had been recorded, without advising her that it still  

intended to foreclose.  

                    While the summary judgment motions were pending, and in response to  


Wells Fargo's assertion that it had returned all of the monthly payments made in 2009,  

Duenas-Rendon moved to compel production of written communications between the  


bank and herself from December 2008 to April 2009 that might reflect the payments'  


return.    She  also  sought  an  order  precluding  Wells  Fargo  from  arguing  that  it  had  

returned the payments, should it fail to produce the proof she requested.  In response,  


Wells Fargo produced a copy of a canceled check for $1,180 refunding the March 11 and  


April 3, 2009 payments and endorsed by both borrowers; it had no canceled refund  

checks  for  the  other  two  2009  payments,  but  it  did  provide  affidavits  from  bank  



                    The superior court dismissed the defamation claim on statute of limitation  

grounds, and it is not at issue on this appeal.  

                                                             - 6 -                                                         7034  

----------------------- Page 7-----------------------

employees and a loan history log to support its claim that it had placed all four 2009  

payments  "in  suspense"  before  returning  them  to  Duenas-Rendon  at  her  address  of  

record within a week or two of receipt.   

                   At  oral  argument  on  the  summary  judgment  motions,  Duenas-Rendon  


conceded that she was two months behind on her payments at the time of foreclosure in  

April 2009 regardless of whether the four 2009 payments were applied to the loan.   

                   The superior court granted summary judgment to Wells Fargo.  As relevant  

to this appeal, the court held that Wells Fargo did not waive its right to foreclose.  It  


concluded that "Wells Fargo  did not apply the 2009 payments toward the loan [but  


rather] put them in a suspense account[,] and all indications are that it returned them to  

a borrower."  It rejected Duenas-Rendon's argument that Wells Fargo waived foreclosure  


by accepting the 2009 payments without giving her additional notice that it still intended  

to foreclose.  While stating that this was "a tragic case" because of the borrowers' loss  


of a residence and accumulated equity, the superior court also observed that Wells Fargo  


had  tried  persistently  to  reach  the  borrowers  about  their  missed  payments  before  


proceeding with its contractual remedies.  The court noted that with the sale "long past,"  

there was no way for it to "wave an equitable wand" and reverse the process.  

                   Duenas-Rendon  moved  for  reconsideration  and  asked  that  the  superior  


court rule on her pending motion to compel.  The superior court denied reconsideration  

but invited Duenas-Rendon to "inform the court within ten days whether she wishe[d]  


an  evidentiary  hearing  to  attempt  to  establish  that  not  all  her  post-notice-of-default  

mortgage payments were returned to her."  She requested such a hearing and the court  

scheduled  it,  but  Wells  Fargo  moved  that  it  be  vacated.      The  bank  presented  new  

evidence showing that it had issued refund checks to the borrowers for the February 18  


and March 3, 2009 payments, the checks had never been negotiated, and the unclaimed  

funds had eventually been turned over to the State, from which Duenas-Rendon could  

                                                           - 7 -                                                     7034

----------------------- Page 8-----------------------


still attempt to claim them.  On this unrefuted evidence the superior court vacated the  

evidentiary hearing and entered final judgment for Wells Fargo.  

                    Duenas-Rendon appeals the superior court's grant of summary judgment  

in favor of Wells Fargo and its failure to grant her motion to compel.  




                    We review a superior court's order on summary judgment de novo. 

review its discovery rulings for an abuse of discretion.7  



          A.	       Wells  Fargo  Did  Not  Waive  Its  Right  To  Foreclose  By  Accepting  

                    Monthly Payments After The Notice Of Default Was Recorded.   


                    Duenas-Rendon's main argument on appeal is that the superior court, in its  


waiver analysis, failed to recognize the importance of the fact that Wells Fargo continued  

to accept her monthly mortgage payments after the notice of default had been recorded.  


She contends that the bank's conduct waived its right to foreclose because it "negated"  


the bank's prior notice that it intended to accelerate the loan and foreclose.    She relies  


                                                                                          to support this argument.   

primarily on a federal case, In re  Crystal Properties, Ltd.,  

          6         Alaska Trademark Shellfish, LLC v. State, Dep't of Fish & Game                                  , 172 P.3d  

764, 766 (Alaska 2007).  

          7	         Peterson v. Ek, 93 P.3d 458, 463-64 (Alaska 2004).  

          8         Duenas-Rendon does not argue that Wells Fargo initially failed to give the  

required notice of its intent to accelerate and foreclose, but rather that once having given  


that notice and then acted inconsistently with it, the bank failed to give further  notice that  


it still intended to pursue its contractual remedies.  The adequacy of the November 2008  


acceleration letter and the January 2009 notice of default is therefore not at issue on this  



          9         268 F.3d 743 (9th  Cir. 2001).  

                                                              - 8 -	                                                       7034

----------------------- Page 9-----------------------

                         Crystal Properties applied "the unquestionable principle that, even when  


the terms of a note do not require notice or demand as a prerequisite to accelerating a  


note,  the  holder  must  take  affirmative  action  to  notify  the  debtor  that  it  intends  to  


accelerate";              as the superior court put it,  Crystal Properties shows that "a lender may  


not accelerate a note stealthily."  Duenas-Rendon  finds stealth in the fact that Wells  


Fargo was silent while accepting further payments from her, even sending her receipts  

without mentioning that it still planned to foreclose.  

                         But the uncontroversial rule of Crystal Properties - that a lender must give  

notice before accelerating the loan - is satisfied in this case, where the bank's initial  


notices of acceleration and foreclosure are not challenged.                                                      The question here, rather,  


is whether having once given proper notice, the bank can be held to have implicitly  


waived  its  announced  course  of  action  by  its  later  conduct,  specifically  its  silent  

acceptance and retention of the 2009 payments.   

                         An   "implied   waiver   may   be   demonstrated   by   either:      (1)   'direct,  


unequivocal conduct indicating a purpose to abandon or waive the legal right,' or (2)  


 'acts  amounting  to  an  estoppel  by  the  party  whose  conduct  is  to  be  construed  as  a  

                   12                                                                                                                              13 


waiver.' "              Under the high standard that applies to findings of implied waiver,                                                            Wells  

             10          Id. at 749-50.  

             11          See  note  8,  above.    We  recognize   that  the  rights  to  accelerate  and  to  

foreclose are not the same, and waiver of one would not necessarily mean waiver of the                                                                  

other.    But by citing cases addressing the waiver of acceleration, Duenas-Rendon is                                          

clearly arguing that Wells Fargo's acceptance of monthly payments waived its right to     




                         Sengul v. CMS Franklin, Inc., 265 P.3d 320, 329 (Alaska 2011) (quoting  

Milne v. Anderson , 576 P.2d 109, 112 (Alaska 1978)).  

             13          Id.  

                                                                             - 9 -                                                                      7034

----------------------- Page 10-----------------------

Fargo's acceptance of monthly payments does not meet either test for an implied waiver:  


it was not "direct, unequivocal conduct indicating a purpose to abandon or waive [its]  

legal right[]s" and it did not "amount[] to an estoppel."  

                    First, Wells Fargo's acceptance of monthly payments cannot amount to  


"direct and unequivocal conduct" indicating a purpose to abandon its legal rights when  

the parties' agreement specifically addressed the situation and authorized the course  


Wells Fargo elected to take.  Indeed, all the bank's actions were required or authorized  


by the provisions of the promissory note and the deed of trust:   asserting its rights to  

accelerate and to foreclose, giving formal notice of its intentions, and accepting payments  

that were insufficient to bring the loan current but opting to hold them in suspense before  

returning them.  


                    Second, an estoppel can occur only "when there is 'assertion of a position  


by  word  or  conduct,  reasonable  reliance  thereon  by  another  party,  and  resulting  


                       "This is an objective test; 'neglect to insist upon a right only results in an  

prejudice.' "                                                             

estoppel' when a party's words or conduct 'would convey a message to a reasonable  


person  that  the  neglectful  party  would  not  in  the  future  pursue  the  legal  right  in  



question.' "         In this case, given the bank's contractual rights, its course of conduct was  


consistent with its continued exercise of those rights and could not have conveyed to a  


reasonable person that it was abandoning its contractual remedies.16  


          14        Id. at 329 (quoting  Wausau Ins. Cos. v. Van Biene                            , 847 P.2d 584, 588  

(Alaska 1993)).  

          15        Id. (quoting  Wausau, 847 P.2d at 589).  

          16        Seeing no "assertion of position" on which to base an estoppel, we need not  

address  the  other  two  elements  of  the  estoppel  test  for  implied  waiver:    reasonable  


reliance and resulting prejudice.  

                                                            -  10 -                                                      7034

----------------------- Page 11-----------------------

                    As Duenas-Rendon points out, a finding of implied waiver is not precluded  


by a contractual non-waiver provision.17  But such a provision supports a finding of non- 


waiver  unless  one  party's  "unreasonable  acquiescence"  has  lulled  the  other  into  


                   There  is  no  evidence  here  that  Wells  Fargo  acquiesced  in  any  major  


deviations from the required payment schedule.  It did not have a history of accepting  


late payments on the loan; to the contrary, it labeled each of the missed payments in 2008  


a default and sent notices of its intent to accelerate in September, October, and November  


2008 to the borrowers' address of record.  When Duenas-Rendon failed to cure by the  


December 16 deadline, the debt accelerated without further notice as stated in the deed  

of  trust.    The  notice  of  default,  recorded  in  January  2009,  invoked  the  foreclosure  


procedure that was also specifically authorized by the deed of trust.   On these facts there  

is  no  "unreasonable  acquiescence"  on  the  part  of  the  bank  that  could  override  the  

contractual non-waiver provision.   

                    Duenas-Rendon  bases  her  waiver  argument  not  just  on  Wells  Fargo's  


acceptance of her 2009 payments but also on its failure to return them.  But she does not  


dispute the evidence on which the superior court apparently relied for its conclusion that  


there was no genuine issue of material fact on this point:  that the borrowers actually  


received and endorsed a refund check for the March 11 and April 3, 2009 payments, and  

that  the  bank  attempted  repeatedly  to  refund  the  February  11  and  March  3,  2009  

payments  but  eventually  turned  the  funds  over  to  the  State  as  unclaimed.    Duenas- 


Rendon's argument on appeal is that the bank's efforts are irrelevant to a finding of  


waiver because "for the return to be valid, the returns must have been received by the  

          17        See Sengul, 265 P.3d at 328.  

          18        Id.  (citing  Dillingham  Commercial  Co.  v.  Spears ,   641  P.2d  1,  8  n.10  

(Alaska 1982)).  

                                                             -  11 -                                                       7034

----------------------- Page 12-----------------------

borrower."  She compares this to the borrowers' obligations to make monthly payments,   

which are not deemed made until the bank receives them.  But the bank's waiver of its       

legal rights must be implied from the bank's conduct,19 and, regardless of whether and  

when  Duenas-Rendon  received  the  refund  checks,  the  evidence  does  not  support  a  

contention that Wells Fargo retained the funds.  

                      Finally, Duenas-Rendon cites several cases for the proposition that the  

enforcement of a forfeiture may be inequitable if it will cause a loss to the property  

owner that is out of proportion to the other party's claimed injury.  In Land Development,  

Inc. v. Padgett , we affirmed a trial court's decision not to enforce "a typical forfeiture  

clause in a real estate sales contract" that would have resulted in the buyers' loss of  


                                   The trial court ordered that the buyers could retain the property if  

substantial equity.                                                                                                       

they paid the remaining balance of $2,435 within three months, having already paid at  



least $9,500.             We held this result to be "in accord with principles of equity and justice"  

because to allow the forfeiture "would cause a loss to the buyers all out of proportion to  



any  injury  that  might  be  sustained  by  the  seller."                                   We  reached  a  similar  result  in  


 Williams v. DeLay, citing Padgett for the proposition "that the trial court may refuse to  


enforce literally the forfeiture provisions of a real estate contract, for this is a matter of  



discretion which is directly related to the equities of the situation."                                              We affirmed the  

trial court's refusal to enforce a forfeiture clause when the buyers' unpaid balance on a  


           19         See id. at 329.  

           20          369 P.2d 888, 889-90 (Alaska 1962).  

           21         Id. at 889.  

           22         Id. at 889-90.  

           23          395 P.2d 839, 846 (Alaska 1964).  

                                                                    -  12 -                                                             7034

----------------------- Page 13-----------------------

$33,000 contract was only $575.95, which they tendered into court as soon as a special     


master calculated it as the amount due.                           

                     We need not revisit the holdings of Padgett and Williams any further in this  


case,  since  they  were  based  on  the  court's  equitable  power  to  avoid  a  forfeiture.  

Although  "[i]t  is  well  settled  in  this  jurisdiction  that  equity  abhors  a  forfeiture,"25  

application of the principle generally means that a buyer is given the opportunity to cure  



a default.         The default in this case can no longer be cured.  Duenas-Rendon's property  

was sold at public auction over six years ago; the forfeiture cannot be undone, which  

explains why, when Duenas-Rendon filed suit in 2012, she sought money damages and  

not an unwinding of the sale.  As the superior court observed in its order on summary  


judgment, the sale was "long past" and it was not possible to "wave an equitable wand  

and resolve this matter."  The rule of Padgett and  Williams is inapplicable.  


           B.	       The Superior Court Did Not Abuse Its Discretion By Treating Duenas- 

                     Rendon's Motion To Compel As Moot.  


                     Duenas-Rendon contends that the superior court erred when, in granting  


summary judgment to Wells Fargo, it implicitly treated as moot her pending discovery  


motion  seeking  to  compel  production  of  correspondence  that  would  prove  Duenas- 


Rendon's receipt of the refunded 2009 payments.  She argues that the superior court's  


failure to order the requested discovery led it to erroneously conclude in the summary  


judgment order that "all indications are that [Wells Fargo] returned [the 2009 payments]  


to [the] borrower"; whereas the evidence adduced later, when Wells Fargo moved to  

           24        Id. at 845-46.  

           25        Curry v. Tucker, 616 P.2d 8, 13 (Alaska 1980).  

           26        See Allen v. Vaughn, 161 P.3d 1209, 1213 (Alaska 2007) ("[W]e have  

repeatedly held that a purchaser faced with forfeiture should be given time to cure a  


                                                                - 13 -	                                                         7034

----------------------- Page 14-----------------------


vacate the post-summary-judgment evidentiary hearing, showed that the 2009 payments  


had not all been returned, because although the bank made repeated efforts, it eventually  

turned over funds for two of the payments to the State as unclaimed.  

                   The superior court noted in its summary judgment order that this factual  


dispute had not yet been definitively resolved but did not affect its decision:  "The parties  


dispute whether the bank has returned all 2009 loan payments, but the bank stands ready  


to do so if it is shown to have erred; such an error would not affect the viability of the  

foreclosure sale."  We agree with the superior court's assessment.  The promissory note  

and  deed  of  trust  did  not  require  Wells  Fargo  to  return  partial  payments  that  were  

insufficient to cure default before proceeding with foreclosure.  Given that Duenas- 


Rendon was indisputably in default when Wells Fargo foreclosed, whether the 2009  


payments were later returned to her was immaterial to the grant of summary judgment.  


The superior court did not abuse its discretion when it implicitly concluded that the  

discovery motion could be denied as moot.  

 V.       CONCLUSION  

                   The  judgment of the superior court is AFFIRMED.  

                                                           -  14 -                                                    7034

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