Nationstar Mortg. LLC v. Unknown Heirs

444 P.3d 1014 (Table)

NATIONSTAR MORTGAGE LLC, d/b/a Champion Mortgage Company, Appellee,

v. UNKNOWN HEIRS, Executors, Administrators, Devisees, Trustees, Creditors, and Assigns OF Lucille L. JACKSON, Deceased, et al., Defendants,andRoy L. Jackson, Appellant.

No. 120,155

Court of Appeals of Kansas.

Opinion filed July 12, 2019.

Roy L. Jackson, appellant pro se.

Blair T. Gisi, of Overland Park, for appellee.

Before Schroeder, P.J., Green and Powell, JJ.

MEMORANDUM OPINION

Per Curiam:

Nationstar Mortgage LLC, d/b/a Champion Mortgage Company (Champion) moved to foreclose on a reverse mortgage after the homeowners passed away. The homeowners' son, Roy Jackson, opposed the foreclosure pro se. The district court granted Champion summary judgment and permitted the sale of the house. After the house was sold, Roy filed numerous motions attempting to void the sale. On appeal, Roy presses four basic contentions. First, he argues that the district court lacked subject matter jurisdiction over this case. Second, Roy argues that the district court violated his due process rights under the Fourteenth Amendment to the United States Constitution by failing to give him proper notice of its signed orders. Third, Roy argues that the district court violated his due process rights under the Fourteenth Amendment by denying his May 2017 request to participate in a pretrial conference by telephone. Fourth, Roy argues that the district court lacked jurisdiction over the foreclosure suit because the suit was prematurely filed. Of these four issues, we find none to be meritorious. Accordingly, we affirm in part and dismiss in part.

In 2007, Harold and Lucille Jackson took out a reverse mortgage on their Larned home. The terms of the reverse mortgage provided that the lender "may require immediate payment in full of all outstanding principal and accrued interest if ... [a] [b]orrower dies and the [p]roperty is not the principal residence of at least one surviving [b]orrower." The mortgage lender identified in the mortgage note was Urban Financial Group, Inc. A rider accompanying the mortgage note stated that payments should be made to the Seattle Mortgage Company.

On the same day the mortgage was executed, Urban Financial Group "[sold], assign[ed] and transfer[red] ... all beneficial interest" under the mortgage "together with the note or notes therein described or referred to, the money due and to become due thereon with interest, and all rights accrued or to accrue under said [m]ortgage" to the Seattle Mortgage Company. This assignment was recorded in Pawnee County, Kansas, on August 1, 2007.

On November 13, 2007, the Seattle Mortgage Company assigned and transferred "all beneficial interest" under the mortgage "together with the note or notes therein described or referred to, the money due and to become due thereon with interest, and all rights accrued or to accrue under said [m]ortgage" to Mortgage Electronic Registration Systems, Inc. (MERS). This assignment was recorded in Pawnee County, Kansas, on April 21, 2008.

On November 27, 2012, MERS assigned "all its rights, title, and interest" in the mortgage to Champion Mortgage Company (Champion). This assignment was recorded in Pawnee County, Kansas, on December 3, 2012.

On February 20, 2015, Harold died. Then on April 11, 2015, Lucille died.

On August 10, 2015, Champion filed a petition in Pawnee County District Court to foreclose on the mortgage. Champion attached to its petition copies of the mortgage note and all of the above assignments. On September 4, 2015, Roy, Harold and Lucille's son, moved to remove the case to the United States District Court for the District of Kansas. The United States District Court remanded the case to Pawnee County District Court.

On November 30, 2015, Roy moved to dismiss the case for failure to state a claim upon which relief can be granted; Roy alleged that Champion did not own the mortgage note. On January 11, 2016, Roy filed another memorandum in support of his motion to dismiss; this time he argued that Champion lacked standing to foreclose on the mortgage.

On March 4, 2016, the Pawnee County District Court denied Roy's motion to dismiss. The Pawnee County District Court found that "[i]t is uncontroverted in this case that [Champion] holds the original note signed by Defendants ... and endorsed in blank. The record further reflects that [Champion] is the assignee of record of the mortgage." Thus, the court held that Champion, "as the holder of the promissory note, has standing to bring this foreclosure action."

On March 11, 2016, Roy answered the petition. He generally denied Champion's claims and raised 10 affirmative defenses. Roy alleged that Champion failed to establish any agency relationship between MERS and "any lender in the chain of ownership & assignments." He alleged that "MERS is not mentioned in [a]ny loan documents as any lenders [sic ] agent." He further alleged that Champion failed to establish that MERS had the authority to assign the mortgage to Champion.

On April 10, 2017, Roy filed a "First Amended Answer & Counterclaim." Champion moved to strike the amended answer and counterclaim, arguing that the new filing was impermissible as it was more than 21 days after Roy filed his original answer, that Champion did not consent to the amendment, and that the court had not granted Roy leave to file an amended answer. Champion also moved for sanctions against Roy. The motions were set for hearing on May 10, 2017. Roy moved for permission to attend the May 10, 2017 conference via telephone. The Pawnee County District Court denied Roy's motion to attend the hearing by phone.

On May 15, 2017, the Pawnee County District Court issued an order striking Roy's amended answer, dismissing his counterclaim, and denying his motions for a more definite statement. Also on May 15, 2017, the Pawnee County District Court granted Champion's motion for sanctions against Roy. The court awarded Champion its attorney fees accrued defending against Roy's amended answer and counterclaim and later related filings. The court also ordered that Roy was "required to obtain leave of Court prior to filing any new Motions going forward in this litigation."

On July 27, 2017, Champion moved for summary judgment. Champion alleged that Champion or its agent was "in possession of the [n]ote" and was the "assignee of record of the [m]ortgage." Champion argued that because it had established it held a beneficial interest in the mortgage note and the mortgage and the borrowers defaulted, it was entitled to summary judgment. Champion included as exhibits copies of the mortgage note and the assignments; it also included an affidavit from the assistant vice president of Champion stating that Champion possessed the mortgage note "at the time of filing this action and at all times thereafter" and that the assistant vice president was "aware of the physical location of the original [n]ote." Roy did not respond to the motion.

On September 28, 2017, the Pawnee County District Court granted Champion's motion for summary judgment. The court ordered a sheriff's sale of the home to satisfy the mortgage. The house sold for $18,000 at a sheriff's sale on November 30, 2017. On December 1, 2017, Champion moved to confirm the sheriff's sale. The Pawnee County District Court approved the sale on December 5, 2017. On December 20, 2017, Champion moved to extinguish Roy's redemption rights and authorize execution of an immediate sheriff's deed to the property.

On January 24, 2018, Roy moved to recuse Pawnee County District Court Judge Bruce Gatterman from the case. Roy alleged that Judge Gatterman displayed " ‘bias, partiality, favoritism, unfairness, and injustice,’ " in his handling of the foreclosure suit. That same day, Roy also filed a "Motion for Relief from Void Judgment." On January 29, 2018, Roy moved to stay the foreclosure proceedings.

The Chief Judge of the 20th Judicial District, which includes Pawnee County, reviewed Roy's motion to recuse Judge Gatterman. In an order issued February 8, 2018, the Chief Judge found no grounds for Judge Gatterman to be recused and denied Roy's motion. On March 7, 2018, Roy timely filed a notice of appeal regarding the February 8, 2018 order denying his motion to recuse Judge Gatterman.

On April 25, 2018, Roy filed a "14th Amendment Request to Disqualify" Judge Gatterman, wherein he "respectfully demand[ed] the disqualification" of Judge Gatterman from any further involvement in the case.

On April 30, 2018, the Pawnee County District Court denied Roy's motion to stay the proceedings and his motion to disqualify Judge Gatterman. Also on April 30, 2018, the Pawnee County District Court granted Champion's motion to extinguish Roy's redemption rights and struck Roy's motion for relief from a void judgment.

On May 7, 2018, Roy filed a "Notice of Objection Pursuant to Rule 170." Roy objected to the following:

"1) ‘ORDER’ denying Defendant Roy L. Roy's Motions; (filed 4-30-18);

"2) ‘ORDER’ granting Plaintiffs Motions to extinguish redemption rights, strike Defendant's Motion for relief from VOID JUDGMENT, (filed 4-30-18);

"3) ‘ORDER’ (filed 5-5-17) (on Rule 145 Motion to attend conference by phone);

"4) ‘ORDER’ striking amended answer, dismissing counterclaim & denying Motion more Definite statement, as amended, (filed 5-15-17);

"5) ‘ORDER’ awarding sanctions, (filed 5-15-17);

"6) ‘ORDER’ Case management, (filed 5-15-17)."

Also on May 7, 2018, Roy filed a "Motion for Issuance of Rule 165 Findings of Fact and Conclusions of Law." Roy moved the court to issue findings of fact and conclusions of law for each of the orders referenced in his objection. On June 13, 2018, Champion moved to strike these motions. Champion noted that Roy did not obtain leave of court to file these motions, despite being required to by the May 15, 2017 Order Awarding Sanctions.

On June 28, 2018, the Pawnee County District Court held a telephone hearing on Roy's motions and Champion's motion to strike. On August...