Davenport v. Deutsche Bank National Trust Co.
2017 Ark. App. 134
| Ark. Ct. App. | 2017Background
- In 2006 Davenport obtained first and second mortgages from New Century; Deutsche Bank later purchased the mortgages and Bank of America serviced the loans.
- Davenport sent a 2009 rescission notice alleging constructive fraud and later brought multiple suits; a 2012 judgment awarded him $250,000 against mortgage broker Snodgrass and TBS Investments.
- In January 2014 Davenport sued Deutsche Bank and its counsel to stop a nonjudicial foreclosure, arguing securitization and defective assignment made Deutsche Bank an improper foreclosing party; Deutsche Bank counterclaimed for judicial foreclosure.
- Deutsche Bank moved for summary judgment on both Davenport’s claims and its foreclosure counterclaim; the circuit court granted summary judgment and a decree of foreclosure on January 27, 2016, and awarded money judgment and attorney’s fees.
- Davenport filed a notice of appeal on February 11, 2016, before a separately named defendant (Marinosci Law Group) was dismissed by agreed order on February 18, 2016; the Court of Appeals held Davenport’s initial notice of appeal was untimely and dismissed the appeal for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellate court has jurisdiction (timeliness/finality) | Davenport treated the summary-judgment order as appealable and attempted to abandon unresolved claims via his notice of appeal | Deutsche Bank argued the order wasn’t final because Marinosci Law Group remained a party when the notice was filed | Appeal dismissed for lack of jurisdiction; notice filed before final disposition was a nullity |
| Validity/enforceability of mortgage/assignment due to securitization | Davenport argued securitization and alleged defective/ lost assignment meant Deutsche Bank lacked standing to foreclose | Deutsche Bank maintained the note was indorsed in blank, mortgage assigned (lost copy) and it was a proper party to foreclose | Court did not reach merits due to jurisdictional defect (summary judgment previously granted in favor of Deutsche Bank below) |
| Applicability and timeliness of ADTPA/TILA and related claims | Davenport asserted ADTPA violations, TILA rescission and damages tied to origination practices and securitization | Deutsche Bank argued ADTPA did not apply to its actions, claims were time-barred, and Davenport lacked standing to challenge securitization/assignment | Court found ADTPA claims fail as a matter of law and were time-barred, but these merits determinations were subsumed by dismissal of appeal for lack of jurisdiction on review |
| Offset of $250,000 judgment against Snodgrass (res judicata/setoff) | Davenport sought setoff of his judgment against Snodgrass against amounts owed to Deutsche Bank | Deutsche Bank argued res judicata and no liability for Snodgrass’s conduct | Trial court found res judicata barred setoff and Deutsche Bank bore no responsibility for Snodgrass; appellate court did not reach merits due to jurisdictional dismissal |
Key Cases Cited
- Ellis v. Ark. State Highway Comm’n, 363 S.W.3d 321 (Ark. 2010) (timeliness of appeal and jurisdictional duty of appellate courts to address)
- Tissing v. Ark. Dep’t of Human Servs., 303 S.W.3d 446 (Ark. 2009) (appellate jurisdiction and timely notice of appeal)
- Servewell Plumbing, LLC v. Summit Contractors, Inc., 202 S.W.3d 525 (Ark. 2005) (notice of appeal filed before final judgment is a nullity)
- Ford Motor Co. v. Washington, 2012 Ark. 354 (Ark. 2012) (an appellant cannot unilaterally dismiss a party from the action by a statement in a notice of appeal)