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Mitchell v. Interbay Funding LLC

The debtors conceded that they failed to make their monthly mortgage payments after June 2002.

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Following a non-judicial foreclosure sale, Interbay Funding LLC “Interbay” filed a dispossessory action against Samuel and Susan Mitchell “the Mitchells”. The Mitchells counterclaimed for wrongful foreclosure. Interbay subsequently moved for summary judgment on the counterclaim. The trial court granted the motion, and the Mitchells appeal. We affirm. ” ‘To prevail at summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in a light most favorable to the nonmoving party, warrant judgment as a matter of law.’ “ 1 Viewed in this manner, the record shows that the Mitchells obtained a $45,450 loan to purchase a home in 1997. To secure the loan, they executed a promissory note and security deed, conveying to the lender a first priority security interest in the property. The loan documentation required the Mitchells to make monthly payments of $454.43.

The original lender then sold the Mitchells’ indebtedness to Interbay. In 2000, Interbay notified the Mitchells that they needed to obtain flood insurance for the property. Interbay further advised that it had secured minimum coverage to protect the property until the Mitchells obtained independent coverage. According to the notice, the Mitchells’ monthly payment would be increased to pay for the insurance if sufficient escrow funds were not available. The addition of flood insurance ultimately increased the Mitchells’ monthly payment to $671.31.

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