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Hildebrand v. Bank of Am. NA

The two loans at issue were not "inextricably intertwined" such that one creditor's failure to obtain conformation of a non-judicial foreclosure barred the second creditor's right to recover in its suit on a note.

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Janet Hildebrand appeals the trial court’s grant of summary judgment to Bank of America, N.A., on its suit on a note for $50,844. Hildebrand argues that the court erred in granting the motion because the note was secured by a second mortgage that was “inextricably intertwined” with the first mortgage, which was foreclosed upon but not confirmed. For the reasons that follow, we affirm.

Hildebrand bought a condominium in July 2006. She borrowed $257,380 from the CDC Federal Credit Union, which prepared an “80-20″ mortgage loan package for her to sign. At the closing, Hildebrand signed two promissory notes, one for $205,100 and one for $51,280, each of which was secured by a separate deed on the property being purchased. The security deed on the larger note was given first priority, and the deed securing the smaller note was given second priority. Both deeds were dated July 31, 2006, and identified Hildebrand as the borrower and CDC Federal Credit Union as the lender. The deeds differed only slightly, in that the first priority security deed required Hildebrand to occupy the property within 60 days and remain there for at least a year unless the lender agreed otherwise in writing or the borrower experienced extenuating circumstances beyond her control. Another difference is that the final paragraph of the secondary lien deed, titled “Request for Notice of Default and Foreclosure Under Superior Security Deeds, Mortgages or Deeds of Trust,” states,

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