Masterson v. Nationstar Mortgage ( 2020 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 9, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
CAROL MASTERSON,
Plaintiff - Appellant,
v. No. 19-4146
(D.C. No. 2:18-CV-00196-RJS)
NATIONSTAR MORTGAGE, LLC; (D. Utah)
DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Trustee for the Residential
Accredit Loans, Inc. Mortgage
Asset-Backed Pass-Through Certificates,
Series 2007-QH1, Series 2005-QA13,
Series 2006-QA1, Series 2006-QA10,
Series 2006-QS14, Series 2007-QA3,
Series 2007-QA8, Series 2007-QS1;
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, MATHESON, and CARSON, Circuit Judges.
_________________________________
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Carol Masterson, appearing pro se, appeals from the district court’s summary
judgment ruling that rejected her mortgage-related claims. Exercising jurisdiction
under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
Ms. Masterson borrowed about $1.4 million in 2006 to buy a house in Park
City, Utah. To obtain the loan, she executed a note and a deed of trust. This appeal
stems from Ms. Masterson’s attempts to (1) render the loan unsecured by obtaining a
declaration that the deed of trust is void; and (2) avoid Defendants’ future collection
efforts by obtaining a declaration that they have no interest in the loan.
Ms. Masterson agreed in the deed of trust that the “[n]ote or a partial interest
in the [n]ote (together with [the deed of trust]) can be sold one or more times without
prior notice.” R. Vol. 1 at 178. She also agreed that her lender could transfer the
loan’s servicing rights. To facilitate transfers of beneficial ownership, the parties
appointed Defendant Mortgage Electronic Registration Systems, Inc. (MERS) as the
trust deed’s beneficiary.1
1
We have previously described the role MERS plays:
MERS is a private electronic database that tracks the transfer of the
beneficial interest in home loans. MERS was designed to avoid the
need to record multiple transfers of the deed by serving as the nominal
record holder of the deed on behalf of the original lender and any
subsequent lender. MERS is designated in the deed of trust as a
“nominee” for the lender and the lender’s successors and assigns as well
as the “beneficiary” of the deed. MERS thus holds legal title to the
security interest. If the lender sells or assigns the beneficial interest in
the loan to another MERS member, the change is recorded only in the
MERS database, not in county records, because MERS continues to
2
In accordance with the deed of trust, beneficial interests in the loan and
servicing rights thereto changed hands several times between 2007 and 2012. A
MERS summary in the record “documents the complete chain of title and
transactional history of the [b]eneficial [o]wnership as well as the transfer of
[s]ervicing [r]ights of [Ms. Masterson’s] loan since inception.” R. Vol. 1 at 150; see
also Aplt. Opening Br. at 27. The summary shows Defendant Deutsche Bank Trust
Company Americas holds the beneficial interests in Ms. Masterson’s loan and
Defendant Nationstar Mortgage, LLC holds the servicing rights.
Ms. Masterson brought this suit in 2018. She sought a declaration deeming the
deed of trust void ab initio for a variety of reasons, most relating to the deed of
trust’s appointment of MERS as the beneficiary. And she sought a declaration that
none of the Defendants had “any right or interest in [Ms. Masterson’s] [n]ote, [d]eed
of [t]rust, or the property which authorizes them, in fact or as a matter of law, to
collect [her] mortgage payments or enforce the terms of the [n]ote or [d]eed of [t]rust
in any manner whatsoever.” R. Vol. 1 at 153. She also brought claims seeking
damages for alleged (1) violations of the Truth in Lending Act (TILA), Pub. L.
No. 90-321, 82 Stat. 157 (1968) (current version at 15 U.S.C. §§ 1601–1667f),
hold the deed on the new lender’s behalf. Thus, no recordation takes
place unless the trust deed is transferred to an entity that is not a
member of MERS.
Commonwealth Prop. Advocates, LLC v. Mortg. Elec. Registration Sys.,
Inc., 680 F.3d 1194, 1197 n.1 (10th Cir. 2011) (citations and internal quotation marks
omitted).
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resulting from Defendants’ failure to record assignments of the deed of trust to
non-MERS members;2 (2) violations of the Real Estate Settlement Procedures Act of
1974 (RESPA), Pub. L. No. 93-533, 88 Stat. 1724 (current version at 12 U.S.C.
§§ 2601–2617), resulting from Defendants’ failure to provide notice that servicing
rights to the loan had been transferred;3 (3) violations of RESPA resulting from
Defendants’ failure to timely and appropriately respond to her inquiries;4
(4) negligent misrepresentation; and (5) intentional infliction of emotional distress.
She further sought an accounting.
Defendants filed a motion for summary judgment, and Ms. Masterson filed a
cross-motion for summary judgment. In her summary judgment motion,
Ms. Masterson alleged that Defendants failed to respond to her requests for
admission. She argued that the court should deem the applicable facts conclusively
established under Fed. R. Civ. P. 36(a)(3) and rely on them to grant summary
2
The relevant subsection provides: “[N]ot later than 30 days after the date on
which a mortgage loan is sold or otherwise transferred or assigned to a third party,
the creditor that is the new owner or assignee of the debt shall notify the borrower in
writing of such transfer . . . .” 15 U.S.C. § 1641(g)(1).
3
RESPA requires “[e]ach servicer of any federally related mortgage loan [to]
notify the borrower in writing of any assignment, sale, or transfer of the servicing of
the loan to any other person.” 12 U.S.C. § 2605(b)(1). It also requires “[e]ach
transferee servicer to whom the servicing of any federally related mortgage loan is
assigned, sold, or transferred [to] notify the borrower of any such assignment, sale, or
transfer.” Id. § 2605(c)(1).
4
RESPA provides that loan servicers must respond within 30 days to certain
qualified written requests made by borrowers. See 12 U.S.C. § 2605(e)(2).
4
judgment in her favor. Defendants responded by asserting in a sworn statement that
they never received the requests for admission and explicitly denying each of them.
The magistrate judge recommended granting Defendants’ motion for summary
judgment and denying Ms. Masterson’s cross-motion for summary judgment. With
respect to Defendants’ motion, he found the deed of trust valid and enforceable based
in part on the presumed validity of a recorded deed of trust under Utah law. See Utah
Code Ann. § 57-4a-4(1). He rejected Ms. Masterson’s request for a declaration that
none of the Defendants had an interest in, or the right to enforce, the note or deed of
trust because the undisputed facts showed that Deutsche Bank owned a beneficial
interest in the loan and that Nationstar held the servicing rights. He further found
that the evidence did not support Ms. Masterson’s TILA and RESPA claims. And he
rejected Ms. Masterson’s negligent misrepresentation, intentional infliction of
emotional distress, and accounting claims as a matter of law.
The magistrate judge found that Ms. Masterson’s cross-motion for summary
judgment failed to establish any genuinely disputed issues of material fact.
Regarding Ms. Masterson’s requests for admission, he concluded that even if the
court deemed the facts described therein admitted, it should still reject
Ms. Masterson’s claims because those facts do not support viable claims for relief.
Ms. Masterson filed an objection to the report and recommendation. She
claimed the magistrate judge erred by (1) applying the presumptions of validity in
Utah Code Ann. § 57-4a-4(1) to the deed of trust despite a disclaimer on the county
recorder office’s website stating it cannot verify the accuracy of online records;
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(2) finding no genuine dispute of fact as to the ownership of her loan; (3) finding that
Nationstar notified her when it became her loan servicer; and (4) ruling against her
despite Defendants’ failure to respond to her requests for admission and their failure
to file a motion seeking to withdraw any deemed admissions.
The district judge overruled Ms. Masterson’s objections and adopted the report
and recommendation. He found, among other things, that Ms. Masterson’s evidence
attached to her complaint “track[ed] each transfer of both the beneficial interest and
the servicing rights” in and to the loan. R. Vol. 2 at 171. Regarding Ms. Masterson’s
requests for admission, he concluded that Defendants effectively withdrew any
potential admissions.
II. DISCUSSION
A. Scope of the Appeal
Ms. Masterson presents eight issues on appeal. She did not sufficiently
develop issues one, three, six, seven, or eight to invoke appellate review.
Ms. Masterson correctly notes that we hold pro se pleadings like hers to “‘less
stringent standards than formal pleadings drafted by lawyers.’” Aplt. Opening Br. at
30 (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). But “this court has
repeatedly insisted that pro se parties follow the same rules of procedure that govern
other litigants.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840
(10th Cir. 2005) (alterations and internal quotation marks omitted). “An appellant’s
opening brief must identify ‘appellant’s contentions and the reasons for them, with
citations to the authorities and parts of the record on which the appellant relies.’”
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Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (quoting Fed. R. App. P.
28(a)(8)(A)). “The court will not consider issues adverted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation.” Armstrong v.
Arcanum Grp., Inc., 897 F.3d 1283, 1291 (10th Cir. 2018) (alteration and internal
quotation marks omitted); see also Garrett, 425 F.3d at 841 (“Under Rule 28, which
applies equally to pro se litigants, a brief must contain more than a generalized
assertion of error, with citations to supporting authority.” (alteration and internal
quotation marks omitted)). Ms. Masterson does not support issues one, three, six,
seven, or eight with citations to the record or cogent argument. We therefore decline
to address them.
Issues two and four relate to the district court’s handling of Ms. Masterson’s
requests for admissions. Issue five relates to the district court’s conclusion that the
competing summary judgment motions did not raise any disputed material facts. We
address these issues below.
B. Defendants Withdrew Any Potential Admissions
Ms. Masterson claims the district court erred in finding that Defendants
effectively withdrew any potential admissions. “A matter admitted under [Rule 36]
is conclusively established unless the court, on motion, permits the admission to be
withdrawn or amended.” Fed. R. Civ. P. 36(b) (emphasis added). Ms. Masterson
argues that because Defendants did not file a separate motion seeking a withdrawal,
the court erred in allowing Defendants’ withdrawal.
7
In Bergemann v. United States, 820 F.2d 1117, 1120–21 (10th Cir. 1987), we
rejected this argument as “overly technical” and affirmed the district court’s
conclusion that the defendant withdrew a potential admission without filing a
separate motion. Like Defendants here, the defendant in Bergemann opposed a
summary judgment motion predicated on the requested admissions and included a
sworn statement that denied receiving the requests for admission. 820 F.2d at
1120–21. Bergemann applies, and the district court did not err by following it.5
C. Ms. Masterson Does Not Identify Any Disputed Material Facts
Ms. Masterson next claims the district court erred in granting summary
judgment to Defendants because there remained a material issue of fact regarding the
identity of the “true and correct owner” of the note. Aplt. Opening Br. at 28. See
Fed. R. Civ. P. 56(a) (authorizing “summary judgment if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law”). Yet Ms. Masterson concedes that exhibit 5 to her complaint
“documents the complete chain of title and transactional history of the [b]eneficial
[o]wnership as well as the transfer of [s]ervicing [r]ights of [Ms. Masterson’s] loan
since inception.” R. Vol. 1 at 150; see also Aplt. Opening Br. at 27.6 And she does
5
Because we affirm the district court’s conclusion that Defendants withdrew
any potential admissions, we need not address whether the court should have deemed
them admitted in the first instance.
6
To the extent Ms. Masterson argues that the district court erred by rejecting
her TILA claim, see Aplt. Opening Br. at 29, this concession defeats her argument.
The relevant section of TILA requires a creditor who obtains a beneficial interest in a
mortgage loan to provide notice to the borrower within 30 days of the transfer. See
8
not challenge the district court’s finding that the “exhibit sufficiently establishes that
the beneficial interests in the loan and the servicing rights of the loan were
transferred several times.” R. Vol. 2 at 171. Exhibit 5 shows Defendant Deutsche
Bank Trust Company Americas as the beneficial owner of the note and Defendant
Nationstar Mortgage, LLC as the servicer of the loan.
Instead of addressing this uncontroverted evidence or the district court’s
findings, Ms. Masterson points out that Defendants attached differing copies of the
note to their motion for summary judgment. Defendants explained to the court that
the first copy was made earlier in time and “before the note bore some indorsements
and an allonge that are now on it.” R. Vol. 1 at 389. And they clarified that the
second copy was current. Defendants even offered “to bring the original note to a
hearing for inspection by the Court.” Id. Ms. Masterson fails to identify any evidence
that questions the authenticity of the second copy of the note. See Self v. Crum,
439 F.3d 1227, 1230 (10th Cir. 2006) (“To defeat a motion for summary judgment,
evidence . . . must be based on more than mere speculation, conjecture, or surmise.
Unsubstantiated allegations carry no probative weight in summary judgment
proceedings.” (internal quotation marks omitted)).
In any event, both copies were made at a time the note was indorsed in blank
and therefore enforceable by the holder. See Utah Code Ann. §§ 70A-3-201, -205(2),
15 U.S.C. § 1641(g). But the limitations period for bringing an action for damages
resulting from violation of this section is one year. See 15 U.S.C. § 1640(e). Exhibit
5 shows that the last transfer of beneficial interests in Ms. Masterson’s loan took
place in 2012. She filed this suit in 2018.
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-301. Nationstar currently holds the note. And Defendants produced evidence that
Deutsche Bank appointed Nationstar as its attorney-in-fact with respect to the note.
Both copies of the note therefore support, rather than undermine, the otherwise
uncontroverted evidence regarding the note’s owner.
We conclude that there is no genuine dispute regarding the owner of the note.
III. CONCLUSION
We affirm the district court’s order granting summary judgment to Defendants
and denying summary judgment to Ms. Masterson.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
10