Anderson v. Citimortgage, Inc.
2014 Ark. App. 683
Ark. Ct. App.2014Background
- Andersons held a mortgage on their home originated by First Nationwide, later CitiMortgage.
- In 2004, the Andersons filed Chapter 13; CitiMortgage was listed as a secured creditor.
- Bankruptcy trustee moved to dismiss in 2009 for failure to complete plan within 60 months; petition was dismissed in 2009.
- In 2009–2010, CitiMortgage denied modification after a December 2009 trial payment plan; plan did not alter the default curing requirement.
- In 2010, CitiMortgage began statutory foreclosure; Andersons filed suit in November 2010 seeking to stop foreclosure and recover damages; court granted TRO and later summary judgment to CitiMortgage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether genuine issues of material fact preclude summary judgment | Andersons contend there are disputed facts about note possession, misrepresentation, and accounting. | Citimortgage shows possession of the note and no genuine issues exist. | No genuine issues; summary judgment affirmed. |
| Whether the court should provide specific findings of fact and conclusions of law | Rule 52 requires detailed, specific findings on the issues. | Rule 52 is inapplicable to motions under Rule 56; findings are unnecessary. | Rule 52 not applicable; denial of request affirmed. |
| Whether fraud and DTPA claims survive | CitiMortgage induced bankruptcy dismissal and charged inappropriate fees. | Plaintiff failed to prove essential elements or misrepresentations; fees explained. | Claims insufficient; affirmed dismissal. |
| Whether breach-of-contract claim survives the December 2009 plan | Plan reinstated mortgage if terms complied; they paid January–March 2010. | Plan did not reinstate until cure of default; remained limited in scope. | No breach; plan did not obligate modification or reinstatement. |
| Whether equitable accounting is warranted | Detailed current accounting requested to determine owing amounts. | CitiMortgage provided an accounting; no basis for further relief. | No reversible error; no basis for accounting relief. |
Key Cases Cited
- McKay v. Capital Res. Co., 327 Ark. 737 (Ark. 1997) (production of original note not required in foreclosure actions)
- Corn Ins. Agency, Inc. v. First Fed. Bank, 88 Ark. App. 8 (Ark. App. 2004) (non-recorded assignments do not defeat enforceability between parties)
- Judkins v. State, 123 Ark. 28 (1916) (unrecorded mortgage remains valid between parties)
- Brown v. Mortgage Elec. Registration Sys., Inc., 903 F. Supp. 2d 723 (W.D. Ark. 2012) (possession of note supported by custodian-of-records affidavit; recording not required to foreclose)
- Brown v. Mortgage Elec. Registration Sys., Inc., 738 F.3d 926 (8th Cir. 2013) (affirming that recording is not required between parties; reliance on possession evidence)