Erkins v. Alaska Trustee, LLC, 355 P.3d 516

Erkins, injured in 2000, obtained an $80,000 loan October 2004 secured by a deed of trust on his Anchorage property, with monthly payments around $500.
In 2005, Erkins obtained a second loan for $142,477; proceeds were used to pay off the first loan; the second loan’s deed of trust was recorded in March 2005.
JPMorgan Chase Bank purchased the loan in February 2005; its records show the note endorsed to JPMorgan as trustee and physical possession transferred, with an assignment from Ameriquest to Bank of New York Trust Company dated February 28, 2005 but recorded November 29, 2007.
Erkins paid on time from April 2005 until January 2007; after a bounced check in January 2007, he refused further payments unless reduced to $500; he stopped payments in mid-2007, leading to foreclosure proceedings by Bank of New York.
In July 2008 Erkins sued Bank of New York, Alaska Trustee, and JPMorgan; after the forbearance offer in October 2008, the superior court granted summary judgment; on appeal, this court remanded; on remand, Bank of New York moved for summary judgment again based on holder-in-due-course status.
The superior court granted summary judgment again, finding Bank of New York a holder in due course immune to Erkins’s incapacity defense; Erkins appeals pro se.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is Bank of New York immune as holder in due course?	Erkins argues capacity defense defeats holder status.	Bank of New York contends it is a holder in due course and immune from incapacity defenses.	Yes; Bank is holder in due course and immune.
Did the note transfer occur before default, authorizing holder in due course status?	Erkins argues assignment occurred after default (recordation 2007) and thus not holder in due course.	Bank contends assignment occurred in February 2005, before default, supported by affidavits.	Assignment before default; records support holder in due course.
Does recordation date control the validity of the assignment?	Erkins argues recordation date is best indicator of when assignment occurred.	Recordation is not determinative for when the note was assigned; other evidence controls.	Recordation is not controlling; other uncontested evidence shows February 2005 assignment.
Whether there are genuine issues of material fact regarding the remaining claims (emotional distress, good faith/fair dealing, Alaska Trustee liability)?	Erkins asserts factual disputes exist to support claims against defendants.	Bank of New York and Alaska Trustee contend there is no evidentiary support for the claims.	No genuine issues; summary judgment proper on remaining claims.

Erkins v. Alaska Tr., LLC, 265 P.3d 292 (Alaska 2011) (affirms analysis of incapacity and assignment in prior proceeding)
Beegan v. State, Dep’t of Transp. & Pub. Facilities, 195 P.3d 134 (Alaska 2008) (summary judgment standards; burden to show genuine issues)
Chizmar v. Mackie, 896 P.2d 196 (Alaska 1995) (emotional distress standard requires severe distress)
McConnell v. State, Dep’t of Health & Soc. Servs., 991 P.2d 178 (Alaska 1999) (breach of implied covenant elements; subjective and objective tests)
Erkins I, Erkins v. Alaska Tr., LLC, 265 P.3d 292 (Alaska 2011) (prior holding on waiver and holder defenses related to forbearance agreement)