Opinion
No. COA11–1260.
2012-04-17
PORTFOLIO RECOVERY ASSOCIATES, LCC, Plaintiff, v. Barbara A. HAMMONDS, Defendant.
No brief filed on behalf of plaintiff-appellee. Barbara A. Hammonds, defendant-appellant, pro se.
Appeal by defendant from order entered 25 April 2011 by Judge Kimbrell Kelly Tucker in Cumberland County District Court. Heard in the Court of Appeals 6 March 2012. No brief filed on behalf of plaintiff-appellee. Barbara A. Hammonds, defendant-appellant, pro se.
HUNTER, ROBERT C., Judge.
Barbara A. Hammonds (“defendant”) appeals from the trial court's 25 April 2011 order denying defendant's motion for relief pursuant to N.C. Gen.Stat. § 1A–1, Rule 60(b)(1)-(6) (2009), setting aside the dismissal previously entered on 25 November 2009, and reinstating the judgment entered on 18 February 2010 in favor of Portfolio Recovery Associates, LLC (“plaintiff”). After careful review, we affirm the trial court's order.
Background
Plaintiff brought suit against defendant on 22 June 2007 for collection of an unpaid debt which defendant allegedly incurred on a credit card issued to defendant by Providian National Bank Credit Card (“Providian”) in 1999. This debt was subsequently transferred to plaintiff, a debt collection agency.
The original suit was mistakenly brought against “Barbara A. Hammond.” Apparently realizing its mistake, plaintiff dismissed this first suit on 29 November 2007 and filed a new complaint on 16 April 2008 against “Barbara A. Hammonds,” seeking $3,136.89 plus interest and costs. Defendant was properly served on 18 November 2008. Defendant, acting pro se, filed a handwritten answer and counterclaim, denying that she had any interaction with Providian and denying that she owed money to plaintiff. Defendant counterclaimed to recover $3,610.00, the amount that she had already paid on the debt, allegedly by mistake, and $1,864.33 for her costs incidental to defending the two suits.
The case was arbitrated on 23 April 2009 and plaintiff was awarded the principal amount plus interest and costs. Defendant filed a motion for trial de novo on 18 May 2009. In her motion, defendant argued that the amounts collected from her had been obtained by fraud and that the action was barred by the statute of limitations. She later added an addendum to her motion to once again deny that she had ever contracted with Providian.
The matter proceeded to trial on 3 August 2009. Plaintiff's only evidence consisted of an “Affidavit of Indebtedness” and a record of the payments made by defendant, including a personal check written by defendant to plaintiff. Defendant testified that she was hospitalized when the debt in question was incurred, that she had agreed to pay when plaintiff contacted her by telephone because she thought she was being called about a medical collection, and that the signature on the check was not hers. She also testified that the person who was named in the complaint was a woman with the same name living in Cumberland County. Defendant lived in Robeson County.
The court found for plaintiff. The judge stated that by making payments over the course of several years, defendant had affirmed the debt and could not deny her indebtedness. At that time, defendant asked about her right to appeal and was told she could appeal the judgment. Defendant requested that any documents containing her medical records, including her answer and her motion for a trial de novo, be stricken from the court file, and the court agreed. Consequently, nothing remained in defendant's court file.
The trial judge ordered plaintiff to draft a judgment to be filed, but plaintiff never provided the draft. The trial judge entered an order of dismissal on 25 November 2009; however, she then entered a judgment in favor of plaintiff on 18 February 2010. The trial court found as fact “that the Defendant is indebted to the Plaintiff in the principal sum $3136.89.” The trial court stated that “[t]he parties are properly before this Court, this Court has jurisdiction over the parties hereto and the subject matter herein.” On the same day, the 25 November 2009 dismissal was ordered stricken from the record.
On 18 February 2011, one year after the final judgment was entered, defendant filed a motion for relief from the judgment under Rule 60(b) and a “Rule 60(b) Counterclaim.” Specifically, she asked for relief under 60(b)(1) for excusable neglect, 60(b)(2) for newly discovered evidence, 60(b)(3) for fraud, 60(b)(4) for improper service and insufficiency of process, 60(b)(5) for satisfaction of the debt, and 60(b)(6) for fraud on the court.
At the hearing on defendant's motion, held 25 April 2011, defendant attempted to make separate arguments under Rule 60(b)(1)-(6); however, the trial court noted that those arguments should have been raised at trial. Defendant claimed that she had attempted to make those arguments in her answer but that it had been removed from the court file by an unknown party before the 3 August 2009 trial. Plaintiff objected to the entire motion, arguing that every argument made in the motion was available to defendant at the time of the trial.
The trial judge denied defendant's motion because defendant “failed to establish good cause[,]” and the motion was untimely “in that all the information included in her motion was available to her at the time of the entry of the Judgment, yet Defendant waited a full year from the entry of the judgment to file her Rule 60 claim for relief[.]” The trial court set aside the 25 November 2009 dismissal and stated that the 18 February 2010 judgment “shall remain in full force and effect.” The court also addressed defendant's attempt to counterclaim, stating that a counterclaim was not permissible under Rule 60 and that a separate counterclaim had not been filed. Defendant timely appealed the 25 April 2011 judgment on 18 May 2011. Plaintiff did not file a brief on appeal.
Discussion
As a preliminary matter, in her motion before the trial court, defendant argued for relief under Rule 60(b)(1)-(6), which was denied. Plaintiff then appealed the denial of her Rule 60(b) motion, but not the underlying judgment. “Notice of appeal from denial of a motion to set aside a judgment which does not also specifically appeal the underlying judgment does not properly present the underlying judgment for our review.” Von Ramm v. Von Ramm, 99 N.C.App. 153, 156, 392 S.E.2d 422, 424 (1990). Consequently, we will not address any arguments made by defendant concerning the underlying judgment.
Defendant makes arguments related to usurious interest, RICO violations, statute of limitations, res judicata, collateral estoppel, default, and violation of the North Carolina Consumer Economic Protection Act.
A. Rule 60(b) Motion
The trial court in this case denied defendant's 60(b) motion on two bases: (1) the motion was untimely, and (2) defendant “failed to establish good cause” why the judgment should be set aside. Defendant argues on appeal that the trial court abused its discretion when it denied her Rule 60(b) motion based on its determination that she “failed to establish good cause” why the judgment should be set aside. However, defendant makes no argument regarding the other basis for denying her motion—that the motion was untimely. Consequently, defendant has waived that argument and our analysis need not go any further. Nevertheless, since all of defendant's arguments rely on the presumption that her motion was timely, we will address the issue of timeliness.
“[A] motion for relief under Rule 60(b) is addressed to the sound discretion of the trial court and appellate review is limited to determining whether the court abused its discretion.” Sink v. Easter, 288 N.C. 183, 198, 217 S.E.2d 532, 541 (1975). “A judge is subject to reversal for abuse of discretion only upon a showing by a litigant that the challenged actions are manifestly unsupported by reason.” Clark v. Clark, 301 N.C. 123, 129, 271 S.E.2d 58, 63 (1980).
A motion for relief under Rule 60(b) “shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment.” N.C. Gen.Stat. § 1A–1, Rule 60(b). “What constitutes a reasonable time depends on the circumstances of the individual case.” McGinnis v. Robinson, 43 N.C.App. 1, 8, 258 S.E.2d 84, 88 (1979); see Sea Ranch II Owner's Assoc., Inc. v. Sea Ranch II, Inc., 180 N.C.App. 226, 230, 636 S.E.2d 332, 335 (2006) (upholding the trial court's denial of a 60(b) motion filed only six months after the underlying order was entered because the owner's association “failed to assert its rights claimed ... within a reasonable time”).
Here, there are no extraordinary circumstances which indicate that the trial court abused its discretion in denying defendant's motion as untimely. Defendant filed the motion exactly one year after entry of the final judgment. All of the facts which informed defendant's 60(b) arguments were available to her at the time of trial had she exercised due diligence. The new legal arguments which defendant raised in her 60(b) motion could also have been raised at trial.
Consequently, we hold that the trial court did not abuse its discretion in denying defendant's Rule 60(b) motion as untimely. Because defendant's motion was untimely and properly denied on that basis, we decline to address the remainder of defendant's arguments pursuant to Rule 60(b)(1)-(6), with the exception of her argument pertaining to subject matter jurisdiction, which can be raised for the first time on appeal. Aubin v. Susi, 149 N.C.App. 320, 324, 560 S.E.2d 875, 879 (2002).
Defendant also appeals the denial of her “Rule 60(b) Counterclaim.” Because Rule 60(b) does not provide for a counterclaim, we need not consider the merits of this argument.
B. Subject Matter Jurisdiction
Defendant claims that the trial court did not have subject matter jurisdiction to enter the 18 February 2010 judgment and it is therefore void. Defendant specifically claims that plaintiff did not have standing to bring an action against her because defendant had not incurred the debt, and, therefore, plaintiff had not suffered an injury in fact as the result of defendant's nonpayment.
In this case, Rule 60(b)(4) is the only proper avenue with which to address jurisdiction since defendant did not appeal the 18 February 2010 judgment. Rule 60(b)(4) allows the court to relieve a party from a final judgment if “[t]he judgment is void.” N.C. Gen.Stat. § 1A–1, Rule 60(b)(4). “With respect to Rule 60(b)(4), a judgment is ‘void’ only where the court that renders it did not have ‘jurisdiction over the parties and the subject matter and [did not have] authority to render the judgment entered.’ “ Hoolapa v. Hoolapa, 105 N.C.App. 230, 232, 412 S.E.2d 112, 114 (1992) (quoting In re Brown, 23 N.C.App. 109, 110, 208 S.E.2d 282, 283 (1974)).
Defendant rightly notes that if plaintiff lacked standing, the trial court had no subject matter jurisdiction to hear the original claim and defendant's motion under Rule 60(b)(4) should have been granted. Neuse River Found., Inc. v. Smithfield Foods, Inc., 155 N.C.App. 110, 113–14, 574 S.E.2d 48, 51 (2002) (“Standing is a necessary prerequisite to a court's proper exercise of subject matter jurisdiction.... The term refers to whether a party has a sufficient stake in an otherwise justiciable controversy so as to properly seek adjudication of the matter.”). In order to establish standing, a plaintiff must prove:
“(1) ‘injury in fact’—an invasion of a legally protected interest that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.”
Id. at 114, 574 S.E.2d at 52 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 119 L.Ed.2d 351, 364 (1992)). “The standard of review for lack of subject matter jurisdiction is de novo.” Keith v. Wallerich, 201 N.C.App. 550, 554, 687 S.E.2d 299, 302 (2009).
Defendant cites Credigy Receivables, Inc. v. Whittington, 202 N.C.App. 646, 654, 689 S.E.2d 889, 895 (2010), to support her claim that plaintiff lacked standing in this case because the debt at issue was not actually incurred by defendant, and, therefore, plaintiff cannot establish that an injury in fact occurred. Defendant's argument rests solely on her factual claim that the debt was not hers. The trial court found as fact that defendant was indebted to plaintiff and that defendant had affirmed the debt by making payments for several years. Defendant did not appeal from the judgment in which those findings were made, nor does defendant provide any evidence that would contradict those findings. Consequently, defendant has failed to establish that plaintiff did not have standing to bring the claim against her. We hold that defendant's argument that the trial court lacked the requisite subject matter jurisdiction to hear this case and enter judgment is without merit.
Conclusion
Based on the foregoing, we hold that the trial court did not lack subject matter jurisdiction in this case. Additionally, the trial court did not abuse its discretion in denying defendant's Rule 60(b) motion because it was untimely filed. We therefore affirm the trial court's 25 April 2011 order.
Affirmed. Chief Judge MARTIN and Judge STEPHENS concur.
Report per Rule 30(e).