Erkins v. Alaska Trustee, LLC
265 P.3d 292
Alaska2011Background
- In 2004 and 2005, Erkins obtained two successive loans on his Anchorage home, using the second to pay off the first; the second loan had a high, adjustable rate and long 80-year term.
- Erkins made timely payments on the second loan from April 2005 through January 2007, then payments became sporadic and stopped by August 2007; foreclosure ensued.
- Ameriquest assigned the second loan to Bank of New York (successor to JP Morgan) sometime between February 2005 and November 2007; the assignment was not recorded until November 29, 2007.
- Erkins, acting pro se, filed twelve tort- and contract-based claims in July 2008 against Alaska Trustee, Bank of New York, and JP Morgan, alleging fraud and misrepresentation related to loan origination and terms.
- Defendants offered a forbearance agreement in November 2008 to stay foreclosure in exchange for $2,000 monthly payments; the agreement contained broad waiver language releasing claims against the lenders and related parties.
- The superior court granted summary judgment in September 2009, ruling that the lenders could not be liable for Ameriquest’s torts and that Erkins released his claims via the forbearance agreement; the court did not address a potential constructive fraud issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants can be held liable for Ameriquest’s origination torts | Erkins | Bank of New York et al. | Yes for vicarious liability issues; no liability found for origination torts |
| Whether the forbearance agreement constitutes a settlement releasing Erkins's claims | Erkins | Appellees | There is a genuine issue of material fact whether the waiver constitutes constructive fraud; no complete summary judgment on release |
| Whether the waiver/settlement issue should be treated independent of statute of limitations and ratification defenses | Erkins | Appellees | Not affirmed on limits or ratification; fact issues preclude summary judgment on these grounds |
| Whether the record supports accrual timing and capacity defenses to bar claims | Erkins | Appellees | Accrual and incapacity facts unresolved; remand to address these defenses |
Key Cases Cited
- Adams v. Adams, 89 P.3d 743 (Alaska 2004) (constructive fraud when terms hidden or misrepresented in contract)
- Pierce v. Pierce, 949 P.2d 498 (Alaska 1997) (changes added to agreements without notice can be fraudulent)
- Commercial Recycling Ctr., Ltd. v. Hobbs Indus., Inc., 228 P.3d 93 (Alaska 2010) (contract interpretation and frailties in forbearance/settlement discussions)
- Beegan v. State, Dep't. of Transp. & Pub. Facilities, 195 P.3d 134 (Alaska 2008) (contextual guidance on reliance and contract principles)
- Egner v. Talbot's, Inc., 214 P.3d 272 (Alaska 2009) (holder in due course and defenses under UCC)