303 P.3d 696
Kan. Ct. App.2013Background
- Bank of America foreclosed on Inda’s mortgage after default on the note.
- Inda signed a 2007 promissory note to Pulaski for $244,000 secured by a mortgage.
- MERS held the mortgage as nominee for Pulaski and successors; the note passed through endorsements to Countrywide and then to Bank of America.
- The note was endorsed in blank, making it payable to bearer; Bank of America possessed the original note.
- Bank of America argued it owned the note and thus had standing to foreclose; Inda argued it was only a servicer.
- The trial court granted summary judgment for Bank of America; on appeal, jurisdiction and standing issues were raised, along with posttrial motions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to foreclose on the Note | Inda argues BoA is not the owner, only a servicer. | BoA is holder via possession of the Note and ownership of the Mortgage. | BoA had standing to foreclose as holder of the Note and Mortgage. |
| Timeliness of appeal after posttrial motion | Posttrial motion extended appeal time and preserved review. | 60-260 relief does not extend appeal time; only specific motions extend time. | Notice of appeal timely; motion treated as reconsideration/alteration under 60-259(f). |
| Fraud claim against BoA | BoA fraudulently claimed ownership inconsistent with Freddie Mac. | Statement it is holder is true; no fraud shown. | Fraud claim properly failed; no genuine issue on essential element. |
| Rule 141 compliance | Rule 141 not substantially complied; reversible error. | Any Rule 141 violation was harmless or substantially complied. | Rule 141 substantial compliance; no reversible error. |
Key Cases Cited
- Cornerstone Homes v. Skinner, 44 Kan. App. 2d 88 (2010) (foreclosure elements; holder and mortgage relationship)
- City of Arkansas City v. Bruton, 284 Kan. 815 (2007) (Rule 141; substantial compliance standard)
- Calver v. Hinson, 267 Kan. 369 (1999) (Rule 141; substantial compliance governs)
- McCaslin v. State, 291 Kan. 697 (2011) (issues not briefed deemed waived)
- Giles v. Russell, 222 Kan. 629 (1977) (timeliness of appeals; relief from judgment)
- Keck v. State ex rel. SRS, 266 Kan. 305 (1998) (postjudgment relief; appeal time)
- Exploration Place, Inc. v. Midwest Drywall Co., 277 Kan. 898 (2004) (posttrial motions; extension of time)
- United States v. Loosley, 551 P.2d 506 (Utah 1976) (note and mortgage concepts; holder vs owner)