Edwards v Pacific Financial Corporation [2000] GUSC 27; 2000 Guam 27 (14 September 2000)

IN THE SUPREME COURT OF GUAM

PATRICIA EDWARDS
Plaintiff-Appellant

vs.

PACIFIC FINANCIAL CORP., HIGHSMITH & O'MALLAN, P.C., DAVID HIGHSMITH and BASIL O'MALLAN
Defendants-Appellees

OPINION

Filed: September 14, 2000

Cite as: 2000 Guam 27

Supreme Court Case No.: CVA99-049
Superior Court Case No.: CV2785-98

Appeal from the Superior Court of Guam
Submitted on the Briefs

Representing the Plaintiff-Appellant: Edward C. Han, Esq. Suite 227 (Rear Side), Hotel Hamilton 470 W. Soledad Avenue Hagåtña, Guam 96910 Representing the Defendant-Appellee - Pacific Financial Corp. Richard L. Johnson, Esq. Klemm, Blair, Sterling & Johnson, P.C. Suite 1008 Pacific News Building 238 Archbishop F. C. Flores Street Hagåtña, Guam 96910

Representing Defendants-Appellees - Highsmith & O'Mallan,P.C., David Highsmith and Basil O'Mallan: David Highsmith, Esq. Suite 209, Union Bank Building 194 Hernan Cortes Avenue Hagåtña, Guam 96910 Basil O'Mallan, Esq. O'Mallan, Leon Guerrero & Calvo Suite 201, T.S. Tanaka Building, Route 4, Hagåtña, Guam 96910

BEFORE: BENJAMIN J.F. CRUZ, Chief Justice, PETER C. SIGUENZA, Associate Justice, and JOHN A. MANGLONA, Designated Justice

CRUZ, C.J.:

[1] Patricia Edwards brought an action to set aside a foreclosure of her real property pursuant to a private power of sale provision in a mortgage with Pacific Financial Corporation. The trial court granted summary judgment in favor of Pacific Financial Corporation and other Defendants finding no genuine issue of material fact as to the terms of an oral foreclosure forbearance agreement entered into by the parties to allow Edwards to bring her payments current and cure her default, and Edwards appealed. We agree with the trial court and affirm its decision.

I.

[2] On July 14, 1992, the Appellant, Patricia Edwards (hereinafter AEdwards@), borrowed $150,000.00 from Appellee, Pacific Financial Corporation (hereinafter APacific Financial@), and secured the loan with a mortgage on real property. Edwards defaulted twice on this loan. As a result of her first default in 1996, Pacific Financial invoked the power of sale provision in Edwards' mortgage and hired the law firm of Highsmith & O'Mallan, P.C. to foreclose Edwards' interest in the mortgaged property. Edwards was served a Notice of Default and Election to Sell and thereafter a foreclosure sale was scheduled. However, prior to the date set for the foreclosure sale, Harry Gutierrez (hereinafter AGutierrez@), as Edwards' authorized representative, met with Attorney Highsmith (hereinafter AHighsmith@) or Attorney O'Mallan (hereinafter AO'Mallan@) and reached an oral foreclosure forbearance agreement. Under this agreement, Edwards was to make payments as follows:

$4,000.00 by 2:00 p.m. on January 31, 1997,

$2,000.00 by 2:00 p.m. on February 7, 1997,

$2,000.00 by 2:00 p.m. on February 21, 1997, and

$2,000.00 by 2:00 p.m. on March 7, 1997.