Kimball Rustin Roy Scarr v. JPMorgan Chase Bank National Association (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 15, 2015
• Docket: 21A01-1411-MF-466
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Sep 15 2015, 9:06 am court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

APPELLANT PRO SE ATTORNEY FOR APPELLEE Kimball Rustin Roy Scarr Leanne S. Titus Connersville, Indiana Feiwell & Hannoy, P.C. Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Kimball Rustin Roy Scarr, September 15, 2015 Appellant, Court of Appeals Case No. 21A01-1411-MF-466 v. Appeal from the Fayette Superior Court JPMorgan Chase Bank The Honorable Gregory A. Horn, National Association, Special Judge Appellee. Trial Court Cause No. 21D01-1312-MF-873

Barnes, Judge.

Court of Appeals of Indiana | Memorandum Decision 21A01-1411-MF-466 | September 15, 2015 Page 1 of 12 Case Summary [1] Kimball Rustin Roy Scarr appeals the trial court’s grant of summary judgment

to JPMorgan Chase Bank (“Chase”). We affirm.

Issues [2] Scarr raises numerous issues, which we consolidate and restate as:

I. whether the trial court properly granted Chase’s motion for summary judgment; and

II. whether Chase had standing to foreclose on the mortgage.

Facts [3] Scarr executed a promissory note to SurePoint Lending (“SurePoint”) in the

amount of $196,222.00. The promissory note was dated August 26, 2008, but

next to Scarr’s signature, he wrote “26 Nov. 2008.” Appellee’s App. p. 7. The

promissory note provided: “Borrower’s promise to pay is secured by a mortgage

. . . that is dated the same date as this Note . . . .” Id. Scarr also executed a

mortgage that granted a security interest in property in Connersville. The

mortgage was dated August 26, 2008, and next to Scarr’s signature, he wrote

“26 Aug 2008.” Id. at 15. According to Scarr, although he signed the mortgage

in August 2008, he did not sign the promissory note until November 26, 2008.

Scarr admits, however, that the loan funds were disbursed in late August or

early September. The mortgage was recorded on September 4, 2008. The

Court of Appeals of Indiana | Memorandum Decision 21A01-1411-MF-466 | September 15, 2015 Page 2 of 12 mortgage was then assigned to Chase. Scarr made payments on the promissory

note until June 2013, when he stopped and made no further payments.

[4] In December 2013, Chase filed a mortgage foreclosure complaint against Scarr.

In April 2014, Chase filed a motion for summary judgment. Scarr filed a

lengthy response to the motion for summary judgment along with dozens of

exhibits. He seemed to argue, in part, that the promissory note and the

mortgage were invalid because they were allegedly not signed on the same date,

that SurePoint was not authorized to enter into loan transactions, and that

Chase was not entitled to enforce the promissory note and mortgage. Chase

filed a response and argued that, even if Scarr is correct about the date the

promissory note was signed, Scarr ratified the promissory note and mortgage

and made payments through June 2013. Chase also moved to strike Scarr’s

Exhibit X, an affidavit executed by Scarr that, according to Chase, consisted

“solely of self-serving statements.” Appellant’s App. p. 896.

[5] At the summary judgment hearing, Scarr attempted to file additional evidence,

including an amended Exhibit X, to which Chase objected, and the trial court

sustained the objection. Scarr admitted during the hearing that he stopped

making payments on the loan because he ran out of money, not because of any

irregularity in the loan process. On July 31, 2014, after the hearing, the trial

court granted Chase’s motion to strike Exhibit X and the new affidavits

presented at the hearing. The trial court also granted Chase’s motion for

summary judgment as follows:

Court of Appeals of Indiana | Memorandum Decision 21A01-1411-MF-466 | September 15, 2015 Page 3 of 12 The facts as provided in the designated evidence reveal that in August, 2008 Scarr applied for and received a mortgage for his residence . . . . Scarr signed the mortgage which was with SurePoint Lending. Scarr claims that he did not sign the Promissory Note at that time but admits that he did sign it, he believes, on November 26, 2008. Additionally, Scarr makes a number of other negative allegations regarding the closing of the mortgage loan.

Even assuming arguendo the facts as stated by Scarr are true, Scarr’s actions, post-closing, ratify the mortgage loan. As noted by Chase in its Reply Brief, “Ratification applies when a party to a contract, with knowledge of facts entitling that party to rescind the contract, treats the contract as a continuing and valid obligation, thus leading the other party to believe that the contract is still in effect.”

Indeed, Scarr believed he had a right to rescind the mortgage loan prior to his execution of the Promissory Note which he says occurred on November 26, 2014 [sic]. Whether or not his belief was valid is not the point. What matters is that he believed he had the right to do so. Yet, in spite of believing that the closing of the mortgage loan was rife with irregularities and problems, Scarr executed the Promissory Note—at least as of November 26, 2008. And, then, Scarr made monthly payments each and every month thereafter from the time of the loan’s origination through June 1, 2013. By tendering monthly payments, Scarr ratified the Promissory Note and Mortgage thereby rendering the alleged irregularities and problems moot.

*****

It is clear and the Court so finds that Chase has proved its prima facie case of foreclosure and Scarr has failed to show payment on

Court of Appeals of Indiana | Memorandum Decision 21A01-1411-MF-466 | September 15, 2015 Page 4 of 12 the Promissory Note or raise any genuine issue as to any material fact. Chase has clearly shown: (1) Scarr executed the Promissory Note and Mortgage; (2) Chase is in possession of the original Promissory Note; (3) Scarr admits that he executed the Promissory Note; (4) Scarr ratified the mortgage loan by tendering payments for nearly five (5) years; (5) Scarr defaulted on the Promissory Note; and (6) Chase is entitled to enforce the Promissory Note as the holder of the instrument. There are no genuine issues of material fact and Chase is entitled to Judgment as a matter of law.

Appellant’s App. pp. 11-12 (internal citations omitted). The trial court granted

Chase a judgment against Scarr in the amount of $200,649.11, and ordered

foreclosure of the mortgage.

[6] Scarr filed a motion to correct error arguing, in part, that the trial court erred by

excluding Exhibit X and the exhibits presented at the hearing and that the trial

court should admit evidence allegedly discovered after the summary judgment

hearing. After a hearing on Scarr’s motion, the trial court denied the motion to

correct error on October 13, 2014.

[7] Scarr also filed a motion for relief from judgment pursuant to Indiana Trial

Rule 60 on October 8, 2014. Scarr argued that Chase did not have standing to

foreclose the mortgage because “the loan was turned in to HUD by the Plaintiff

and sold at HUD’s auction June 11, 2014 prior to summary judgment.” Id. at

569. Scarr also argued:

Fraud and misrepresentation by the Plaintiff and SurePoint Lending against Defendant Scarr in attempting to obtain a note

Court of Appeals of Indiana | Memorandum Decision 21A01-1411-MF-466 | September 15, 2015 Page 5 of 12 without disclosure and following rescission of the mortgage loan by the defendant on or about 29 August 2008 by violation of Truth in Lending Act [TILA] 15 U.S.C. 1601 et seq. failure to disclose facts due to lack of promissory note and supporting said illegitimate and rescinded ‘mortgage’, unsupported by a promissory Note.

Id. Scarr’s exhibits to the motion indicated that the mortgage had been sold by

Chase to “LSF9 Master Participation Trust” on August 15, 2014 and that

servicing rights had been transferred to Caliber Home Loans effective October

1, 2014. Id. at 733. Chase responded that neither event affected the validity of

the foreclosure action or the grant of summary judgment and that Indiana Trial

Rule 25(C) permits Chase to remain the Plaintiff despite the transfer of interest

after the summary judgment ruling. The trial court set the matter for hearing.

[8] However, on November 10, 2014, before the trial court ruled on the motion for

relief from judgment, Scarr filed a notice of appeal from the grant of summary

judgment and the denial of the motion to correct error. On December 3, 2014,

prior to the hearing, the trial court found that it no longer had jurisdiction over

the case under Indiana Appellate Rule 8 because the Notice of Completion of

Clerk’s record had been filed. Consequently, the trial court vacated the hearing

on Scarr’s motion for relief from judgment due to lack of jurisdiction. Scarr

now appeals the grant of summary judgment and the denial of the motion to

correct error.

Court of Appeals of Indiana | Memorandum Decision 21A01-1411-MF-466 | September 15, 2015 Page 6 of 12 Analysis [9] We first note that Scarr chose to proceed pro se before both the trial court and

this court. Scarr’s sixty-two-page Appellant’s Brief and thirty-one-page Reply

Brief contain numerous arguments, the majority of which are unintelligible,

unsupported, and rambling. It also appears that some of the arguments were

not presented to the trial court. We remind Scarr that “a pro se litigant is held

to the same standards as a trained attorney and is afforded no inherent leniency

simply by virtue of being self-represented.” In re G.P., 4 N.E.3d 1158, 1164

(Ind. 2014). An appellant who presents an issue for the first time on appeal

waives the issue for purposes of appellate review. Mid-States Gen. & Mech.

Contracting Corp. v. Town of Goodland, 811 N.E.2d 425, 436 n.2 (Ind. Ct. App.

2004). Further, Scarr’s failure to present cogent argument supported by

relevant legal authority constitutes a waiver of the majority of his claims for

appellate review. See Ind. Appellate Rule 46(A)(8)(a). We have addressed only

his cogent arguments that were presented to the trial court and that are

supported by some relevant authority.

I. Summary Judgment

[10] Scarr argues that the trial court erred by granting Chase’s motion for summary

judgment. Summary judgment is appropriate when there is no genuine issue of

material fact and the moving party is entitled to judgment as a matter of law.

Ind. Trial Rule 56. We liberally construe all designated evidentiary material in

a light most favorable to the non-moving party to determine whether there is a

Court of Appeals of Indiana | Memorandum Decision 21A01-1411-MF-466 | September 15, 2015 Page 7 of 12 genuine issue of material fact. Bradshaw v. Chandler, 916 N.E.2d 163, 166 (Ind.

2009). The party that lost in the trial court has the burden of persuading the

appellate court that the trial court erred. Id. Our review of a summary

judgment motion is limited to those materials designated to the trial court.

Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d 970, 973 (Ind. 2001).

[11] Where a trial court enters findings of fact and conclusions thereon in granting a

motion for summary judgment, as the trial court did in this case, the entry of

specific findings and conclusions does not alter the nature of our review. Rice v.

Strunk, 670 N.E.2d 1280, 1283 (Ind. 1996). In the summary judgment context,

we are not bound by the trial court’s specific findings of fact and conclusions

thereon. Id. They merely aid our review by providing us with a statement of

reasons for the trial court’s actions. Id.

[12] Scarr argues that Chase was not entitled to summary judgment because the

promissory note and mortgage were unenforceable. Scarr’s specific concern

regarding the documents is the differing dates on the promissory note and the

mortgage. According to Scarr, the differing dates make the promissory note

and mortgage unenforceable because they are ambiguous and because the

promissory note to SurePoint was signed by Scarr after the assignment to

Chase.

[13] First, we note that the circumstances surrounding the promissory note and

mortgage signing are unclear. When Scarr signed the mortgage in August 2008,

he also signed a “Compliance Agreement” and “Error and

Court of Appeals of Indiana | Memorandum Decision 21A01-1411-MF-466 | September 15, 2015 Page 8 of 12 Omissions/Compliance Agreement,” in which he agreed to “fully cooperate,

adjust for clerical errors, or replace any document in connection with, any or all

loan closing documentation if deemed necessary . . . .” Appellant’s App. p.

199. Scarr contends that he did not sign the promissory note until November

2008. Chase does not concede that the documents were executed on different

dates. Even if they were, given the Compliance Agreements, we cannot say

that the differing dates on the mortgage and promissory note would be fatal to

enforcement of the agreements.

[14] Moreover, the trial court concluded that, even assuming there were

irregularities with signing the promissory note, Scarr ratified the promissory

note and mortgage and cannot now raise the irregularities as a defense. We

agree. “‘Ratification applies when a party to a contract, with knowledge of

facts entitling that party to rescind the contract, treats the contract as a

continuing and valid obligation, thus leading the other party to believe that the

contract is still in effect.’” Smith v. McLeod Distrib., Inc., 744 N.E.2d 459, 465-66

(Ind. Ct. App. 2000) (quoting Winkler v. V.G. Reed & Sons, Inc., 638 N.E.2d

1228, 1236 n.6 (Ind. 1994)); see also Lawlis v. Kightlinger & Gray, 562 N.E.2d 435,

443 (Ind. Ct. App. 1990) (holding that “where one has full knowledge of an

alleged fraud in the inducement yet acts in a manner which shows an intent to

confirm the contract, he waives any claim for damages relating to such alleged

misrepresentation”), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 21A01-1411-MF-466 | September 15, 2015 Page 9 of 12 [15] Scarr accepted the benefits of the promissory note and mortgage and made

regular payments on the loan until June 2013. Scarr cannot now claim that the

promissory note and mortgage are unenforceable. There are no genuine issues

of material fact, and Chase was entitled to judgment as a matter of law. The

trial court properly granted summary judgment to Chase.

II. Standing

[16] Scarr also argues:

Prior to Final Judgment Chase had already turned the loan into HUD under the “601” assignment program, applied for and received full and certified accepted complete payment of $194,189.34 on Scarr’s FHA mortgage insurance over two weeks before Summary Judgment. At the time of Summary Judgment, Chase did not hold nor have right to enforce the “Note” nor “Mortgage” as HUD held both by contract, law and fact.

Appellant’s Brief p. 29. Scarr contends that Chase did not have standing to

enforce the loan and was not a real party in interest.

[17] The trial court granted Chase’s motion for summary judgment on July 31, 2014

and denied Scarr’s motion to correct error on October 13, 2014. On October 8,

2014, Scarr filed a motion for relief from judgment arguing that Chase did not

have standing to foreclose the mortgage because “the loan was turned in to

HUD by the Plaintiff and sold at HUD’s auction June 11, 2014 prior to

summary judgment.” Appellant’s App. p. 569. However, on November 10,

2014, Scarr filed a notice of appeal from the grant of summary judgment and

Court of Appeals of Indiana | Memorandum Decision 21A01-1411-MF-466 | September 15, 2015 Page 10 of 12 the denial of the motion to correct error, and the notice of completion of clerk’s

record was filed in late November 2014. On December 3, 2014, prior to the

hearing on the motion for relief from judgment, the trial court found that it no

longer had jurisdiction over the case under Indiana Appellate Rule 8 because

the notice of completion of clerk’s record had been filed. Consequently, the

trial court vacated the hearing on Scarr’s motion for relief from judgment due to

lack of jurisdiction.

[18] Scarr is now making similar arguments to those found in his motion for relief

from judgment. However, the trial court never ruled on that motion. Indiana

Appellate Rule 8 provides that “[t]he Court on Appeal acquires jurisdiction on

the date the Notice of Completion of Clerk’s Record is noted in the

Chronological Case Summary.” See also Southwood v. Carlson, 704 N.E.2d 163,

166 (Ind. Ct. App. 1999) (holding, under the prior version of the appellate rule,

that the trial court did not have jurisdiction to rule on the Trial Rule 60(B)

motion because the trial court lost jurisdiction when the record of proceedings

was filed). The trial court here lost jurisdiction prior to the hearing on the

motion and has not had the opportunity to make a ruling on Scarr’s motion.

Given the lack of a ruling on Scarr’s motion, we decline to address the

argument on appeal.

Conclusion [19] The trial court properly granted Chase’s motion for summary judgment and

denied Scarr’s motion to correct error. We affirm.

Court of Appeals of Indiana | Memorandum Decision 21A01-1411-MF-466 | September 15, 2015 Page 11 of 12 [20] Affirmed.

Kirsch, J., and Najam, J., concur.

Court of Appeals of Indiana | Memorandum Decision 21A01-1411-MF-466 | September 15, 2015 Page 12 of 12