Opinion
No. 107,374.
2013-04-26
JPMORGAN CHASE BANK, N.A., as purchaser of the loans and other assets of Washington Mutual Bank, formerly known as Washington Mutual Bank, FA, Appellee, v. Bonita J. YODER, et al., Appellants.
Appeal from Douglas District Court; Michael J. Malone, Judge. Bonita J. Yoder, of Lawrence, appellant pro se. Erin R. McClernon and Michael E. Brown, of Kutak Rock LLP, of Kansas City, Missouri, for appellee.
Appeal from Douglas District Court; Michael J. Malone, Judge.
Bonita J. Yoder, of Lawrence, appellant pro se. Erin R. McClernon and Michael E. Brown, of Kutak Rock LLP, of Kansas City, Missouri, for appellee.
Before PIERRON, P.J., BRUNS and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
JPMorgan Chase Bank, N.A., as purchaser of the loans and other assets of Washington Mutual Bank, f/k/a Washington Mutual Bank, FA. (all referred to as Chase), obtained a summary judgment ruling in its favor foreclosing its mortgage with Bonita Yoder. We affirm.
On August 31, 2000, Yoder executed a note and mortgage with The University National Bank for $90,800 on real property in Lawrence. The note and mortgage were assigned multiple times and ended up with Washington Mutual Bank, FA. On July 20, 2009, Chase filed a petition for mortgage foreclosure against Yoder after she had failed to make a payment after November 1, 2008. After several extensions and Chase's motion for default judgment, Yoder filed an answer on February 23, 2010. Yoder, a licensed attorney, appeared pro.
On April 14, 2011, the district court held a status conference attended by both Yoder and counsel for Chase. The court established a summary judgment briefing schedule and also set the case for bench trial on November 4, 2011. The briefing schedule required the parties to file summary judgment motions no later than July 29, 2011, and suggestions in opposition no later than August 26, 2011.
On July 29, 2011, Chase filed a motion for summary judgment. On August 26, 2011, Yoder filed her answer. Among other things, attached to her answer was an affidavit created by Yoder on the same date. In her answer, Yoder challenged the sufficiency of the evidence as to the amount owed, challenged the sufficiency of notice of the default, and claimed that the inconsistency of Chase's responses created multiple issues of fact that precluded summary judgment.
On September 12, 2011, Yoder faxed a request for production of documents to Chase's counsel. On October 5, 2011, Chase filed a motion to strike Yoder's request for production of documents. Chase objected to Yoder's document request, arguing that she was required to obtain leave to serve the request for production of documents, that she failed to conduct timely discovery, and that the request was unnecessarily duplicative, harassing, and burdensome. On October 6, 2011, Yoder filed a motion to continue the summary judgment hearing. Yoder argued that she had filed a request for production of documents, she did not recall a discovery deadline being set by the court, and there had not been a pretrial conference.
On October 13, 2011, Yoder filed a request for production of documents, outlining her attempts to obtain a loan modification and concerns in the United States regarding falsified foreclosure affidavits and bundled mortgages. She contended additional discovery was necessary. On October 14, 2011, the district court heard arguments on the motion for summary judgment and then entered judgment in favor of Chase. The court granted judgment in the amount of $117,538, plus interest, and ordered the real estate sold at a sheriff's sale. Yoder timely appealed.
Yoder raises several discovery related issues. First, she argues the district court has discretion under K.S.A.2011 Supp. 60–256 to continue summary judgment proceedings to enable an opposing party to conduct discovery. Yoder contends the district court should have granted a continuance to allow her to conduct discovery of the authenticity of the mortgage documents submitted by Chase.
Second, Yoder argues she exhibited good faith to resolve the mortgage situation through loan modification and then settlement negotiations, and consequently did not conduct discovery in the first 2 years of litigation. She argues that as a matter of equity, the district court should have allowed discovery to remain open.
Third, Yoder contends the district court erred in failing to consider her affidavit titled “Yoder Affidavit re: Reinstatement” at the summary judgment hearing. The affidavit explained how Yoder had requested reinstatement figures from Chase and received a letter on October 7, 2011, indicating the reinstatement amount was $3,830.80. Then on October 12, 2011, Yoder received an email from Chase explaining how they miscalculated the reinstatement amount and that the correct amount was $40,079.10. Yoder claimed the miscalculation demonstrated a great discrepancy in the figures offered by Chase to reinstate the mortgage and so further discovery was mandated.
As the parties acknowledge, discovery decisions are entrusted to the sound discretion of a district court in managing the course of a case. Hill v. Farm Bur. Mut. Ins. Co., 263 Kan. 703, Syl. ¶ 1, 952 P.2d 1286 (1998) (“The control of discovery is entrusted to the sound discretion of the trial court, and orders concerning discovery will not be disturbed on appeal in the absence of a clear abuse of discretion). A trial court may be said to have abused its discretion if the result it reaches is “arbitrary, fanciful, or unreasonable.” Unruh v. Purina Mills, 289 Kan. 1185, 1202, 221 P.3d 1130 (2009). That is, no reasonable judicial officer would have come to the same conclusion if presented with the same record evidence. An abuse of discretion may also occur if the court fails to consider or to properly apply controlling legal standards. State v. Woodward, 288 Kan. 297, 299, 202 P.3d 15 (2009).
A district court's inclusion or exclusion of evidence is also subject to an abuse of discretion standard of review. Under K.S.A.2011 Supp. 60–206(b)(1)(B), the district court may allow a late response when someone fails to act “because of excusable neglect.” Yoder claimed excusable neglect based on her nonadversarial attempts to resolve the case. Whether a party has shown excusable neglect so as to be allowed to make a required response after the deadline is a discretionary decision to be made by the district court. On appeal, we review that decision to determine whether the district court abused its discretion, which only occurs when we conclude that no reasonable person would agree with the district court. See Bank of Whitewater v. Decker Investments, Inc., 238 Kan. 308, 315, 710 P.2d 1258 (1985); South Central Kansas Health Ins. Group v. Harden & Co. Ins. Services, Inc., 278 Kan. 347, 354, 97 P.3d 1031 (2004). We do not find an abuse of discretion here.
Yoder argues she cannot be guilty of excusable neglect where there was never an explicit discovery deadline and nothing more than an inferred deadline in conjunction with the dispositive motion deadline. We disagree. Yoder was informed that she was not eligible for loan modification in March 2011. The case quickly turned adversarial. On April 14, 2011, the district court set the dispositive motion deadline and ordered the trial date. Yoder's deposition was even taken by counsel for Chase in July 2011. Yoder knew the deadlines in the case, yet she had no discovery requests until September 12, 2011.
We find no abuse of discretion in the district court's finding that Yoder's affidavit and discovery requests were untimely, were used to delay proceedings, and would have done nothing to advance Yoder's case. Yoder has failed to demonstrate “excusable neglect.” Additionally, the district court is in control of discovery, and the district court's rationale that, even if not explicitly stated, the establishment of a dispositive motion deadline certainly can be a closing date for discovery as well is correct.
Last, Yoder cites the relevant summary judgment standards of review and then argues these “high standard[s]” require the district court to allow full development of the factual issues in the case before judgment is granted.
Summary judgment is appropriate only where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. O'Brien v. Leegin Creative Leather Products, Inc., 294 Kan. 318, 330, 277 P.3d 1062 (2012). All facts and inferences that may reasonably be drawn from the evidence must be resolved in favor of the party against whom the ruling is sought—meaning Yoder here. Nonetheless, any factual disputes must be material to the conclusive issues in the case to avoid summary judgment. If reasonable minds could differ as to the conclusions drawn from undisputed material facts, then summary judgment is inappropriate. 294 Kan. at 330.
An issue of fact is not genuine unless it has legal controlling force as to the controlling issue. A disputed question of fact which is immaterial to the issue does not preclude summary judgment. If a disputed fact, however resolved, could not affect the judgment, it does not present a genuine issue of material fact. Mitchell v. City of Wichita, 270 Kan. 56, 59, 12 P.3d 402 (2000).
This court recently discussed the elements in a mortgage foreclosure action and what must exist to obtain summary judgment:
“ ‘The main purpose of a mortgage is to insure the payment of the debt for which [it] stands as security; and foreclosure is allowed when necessary to carry out that objective.’ “ United States v. Loosley, 551 P.2d 506, 508 (Utah 1976). Accordingly, in order to grant summary judgment in a mortgage foreclosure action, the district court must find undisputed evidence in the record that the defendant signed a promissory note secured by a mortgage, that the plaintiff is the valid holder of the note and the mortgage, and that the defendant has defaulted on the note. See Cornerstone Homes v. Skinner, 44 Kan.App.2d 88, 97–98, 235 P.3d 494 (2010). So in this case, if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact regarding: (1) MetLife's beneficial interest in the Note signed by C.T. Hansen; (2) MetLife's beneficial interest in the Mortgage signed by the Hansens to secure the Note; and (3) a default on the Note by C.T. Hansen, then MetLife is entitled to judgment as a matter of law.” MetLife Home Loans v. Hansen, 48 Kan.App.2d 213, 218, 286 P.3d 1150 (2012).
Each of the elements set forth in MetLife is present here to permit the district court to grant summary judgment in favor of Chase. Yoder's challenges to the evidentiary basis in support of these elements are speculative at best. “ ‘A party cannot avoid summary judgment on the mere hope that something may develop later during discovery or at trial. [Citation omitted.]” Troutman v. Curtis, 286 Kan. 452, 457, 185 P.3d 930 (2008). Mere speculation is similarly insufficient to avoid summary judgment. Seitz v. Lawrence Bank, 36 Kan.App.2d 283, Syl. ¶ 8, 138 P.3d 388,rev. denied 282 Kan. 791 (2006). The evidence in this case clearly establishes that Chase is the assignee and owner of the mortgage and note executed by Yoder. Chase presented the court with evidence that it is in possession of the original note and mortgage signed by Yoder. Last, Chase presented evidence that Yoder was in default on the mortgage and had not made a payment on the account since November 1, 2008.
We, therefore, affirm the district court's decision
Affirmed.