Anderson v. Citimortgage Inc.

2013 Ark. App. 545

• Court: Court of Appeals of Arkansas
• Decided: October 2, 2013
• Docket: CV-12-1064
• Status: Published

Opinion

Cite as 2013 Ark. App. 545

ARKANSAS COURT OF APPEALS DIVISION III No. CV-12-1064

ERIC ANDERSON and TAMA Opinion Delivered October 2, 2013 ANDERSON APPEAL FROM THE PULASKI APPELLANTS COUNTY CIRCUIT COURT, THIRD DIVISION V. [NO. CV-2010-6701]

CITIMORTGAGE, INC. HONORABLE JAY MOODY, JUDGE

APPELLEE APPEAL DISMISSED

ROBIN F. WYNNE, Judge

Eric and Tama Anderson bring this appeal from an order granting summary judgment

and dismissing their claims against appellee Citimortgage, Inc. However, we cannot reach

the merits of the appeal for lack of a final, appealable order. We must, therefore, dismiss the

appeal.

In 2001, the Andersons purchased a home on which Citimortgage’s predecessor in

interest, First Nationwide Mortgage Corporation, held a mortgage. The face amount of the

mortgage and the note it secured was $186,200. In March 2003, First Nationwide merged

with Citimortgage, and Citimortgage began accepting payments on the Andersons’ mortgage.

The Andersons filed a Chapter 13 bankruptcy in February 2004 in order to retain

possession of their home. Citimortgage was listed as a secured creditor. In 2008, Citimortgage

notified the Andersons that it had not received payment from the bankruptcy trustee. Cite as 2013 Ark. App. 545

In May 2009, the bankruptcy trustee filed a motion to dismiss the Andersons’

bankruptcy case, asserting that based on the claim filed and allowed, payments made into the

plan to date, and currently scheduled plan payments, the plan would not be completed

within sixty months from the effective date of the plan; and that the Andersons were in

material default with respect to the terms of the plan. An order dismissing the bankruptcy

case was entered on August 7, 2009.

In October 2009, Citimortgage, after reviewing information provided for that

purpose, determined that the Andersons did not qualify for a loan modification. Further

discussions resulted in the approval of a December 2009 trial payment plan with monthly trial

payments of $1,400 from January 1 through March 1, 2010. At the conclusion of the

December 2009 plan, the loan was reviewed for a potential modification, but denied as not

meeting the requisite criteria.

In October 2010, a statutory foreclosure was commenced, and the Andersons received

a Notice of Default and Intent to Sell from Wilson & Associates. The notice stated that

Wilson & Associates would conduct the sale on November 30, 2010.

On November 24, 2010, the Andersons filed the present action against Citimortgage,

Wilson & Associates, PLLC, and Bank of America. The complaint asserted that Citimortgage

persuaded Tama Anderson to dismiss her bankruptcy, promising to modify her loan and

accept $13,000 to reinstate the mortgage; that Anderson dismissed her bankruptcy and

tendered the above sum; and that Citimortgage then informed Anderson of additional fees

and costs and did not modify the loan. The Andersons sought a temporary restraining order

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to enjoin any sale of the house; an accounting for all charges and payments; and damages for

breach of contract, breach of fiduciary duty, fraud, and violation of the Arkansas Deceptive

Trade Practices Act. They sought further relief in the form of having the security interest,

mortgage, debt, and/or note voided, reinstatement of their mortgage, and punitive damages.

On November 29, 2010, an ex parte temporary restraining order was granted that

prohibited the defendants from conducting, instituting, or maintaining any foreclosure action

against the Andersons. The parties later agreed to the entry of an order extending the

temporary restraining order. The Andersons were to remit their monthly mortgage payment

into the registry of the court.

Citimortgage filed an answer stating that it was seeking to proceed under the statutory

foreclosure act. After setting forth its version of events, Citimortgage also asserted that the

Andersons were not entitled to have the security interest, mortgage, debt, and/or note

voided. The answer also asserted certain affirmative defenses and requested the complaint be

dismissed.

Citimortgage later filed its motion for summary judgment and accompanying brief,

to which the Andersons responded. Included with the response was a ten-page affidavit from

Tama Anderson outlining her version of the events and her conversations with various

Citimortgage employees.

Following a hearing, the circuit court ruled from the bench and granted the motion

for summary judgment. The order memorializing that ruling was entered on August 14,

2012, and dismissed the Andersons’ complaint in its entirety, with prejudice.

3 Cite as 2013 Ark. App. 545

On August 23, 2012, the Andersons filed a motion for amendment of findings. The

motion sought to have the circuit court set forth its reasoning for concluding that there were

no issues of material fact as to any of the Andersons’ causes of action. The Andersons filed

their notice of appeal from the summary judgment on September 12, 2012. The circuit court

took no action on the Andersons’ motion for amended findings, and it was deemed denied

as of September 24, 2012.1 They filed another notice of appeal on October 22, 2012,

appealing from the deemed denial of their motion for findings.

The question of whether an order is final and subject to appeal is a jurisdictional

question, which we will raise on our own even if the parties do not. Deer/Mt. Judea Sch. Dist.

v. Beebe, 2012 Ark. 93; Splawn v. Wade, 2013 Ark. App. 187, ___ S.W.3d ___.

The issue of finality arises because the Andersons filed suit against Citimortgage; its

attorneys, Wilson & Associates; and Bank of America. Bank of America was dismissed as a

party by an order entered on February 1, 2011. Although Wilson & Associates’s name

appears as a defendant in the caption of the complaint, there is no order in the record

dismissing the firm. Nor does the order contain a Rule 54(b) certificate. Thus, the claims

against Wilson & Associates remain pending. See Shackelford v. Ark. Power & Light, 334 Ark.

634, 976 S.W.2d 950 (1998).

1 The thirtieth day after the filing of the motion fell on Saturday, September 22, 2012. However, the time for the Andersons to file their notice of appeal did not begin to run until the following Monday, September 24. See Ark. R. App. P.–Civ. 9; Ark. R. Civ. P. 6(a); Jasper v. Johnny’s Pizza, 305 Ark. 318, 807 S.W.2d 664 (1991).

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In addition, Wilson & Associates filed an answer on its own behalf. This precludes the

use of the provisions of Ark. R. Civ. P. 54(b)(5) as a means of achieving finality.2

Without a final order or a sufficient Rule 54(b) certificate, we do not have jurisdiction

to hear this case and must dismiss this appeal without prejudice.

Appeal dismissed.

HARRISON and BROWN , JJ., agree.

Owings Law Firm, by: Steven A. Owings and Alexander P. Owings, for appellants.

Wilson & Associates, PLLC, by: Samuel S. High, for appellee.

2 Rule 54(b)(5) provides that “[a]ny claim against a named but unserved defendant, including a ‘John Doe’ defendant, is dismissed by the circuit court’s final judgment or decree.”