Lucas v. Wells Fargo Bank , 302 P.3d 1240 ( 2013 )

2013 UT App 117_________________________________________________________
THE UTAH COURT OF APPEALS
MICHAEL W. LUCAS,
Plaintiff and Appellant,
v.
WELLS FARGO BANK, NA; ETITLE INSURANCE AGENCY;
JARL G. KLUNGERVIK; M. BETH KLUNGERVIK; AND FEDERAL HOME
LOAN MORTGAGE CORPORATION,
Defendants and Appellees.
Memorandum Decision
No. 20120106‐CA
Filed May 9, 2013
Fifth District, St. George Department
The Honorable Thomas M. Higbee
No. 110501447
Michael W. Lucas, Appellant Pro Se
Lewis P. Reece and J. David Westwood, Attorneys
for Appellees Jarl G. Klungervik and
M. Beth Klungervik
Amy F. Sorenson and M. Lane Molen, Attorneys
for Appellees Wells Fargo Bank, NA and Federal
Home Loan Mortgage Corporation
Richard Gunnerson, Attorney for Appellee eTitle
Insurance Agency
JUDGE J. FREDERIC VOROS JR. authored this Memorandum
Decision, in which JUDGES WILLIAM A. THORNE JR. and
CAROLYN B. MCHUGH concurred.
VOROS, Judge:
¶1 Appellant Michael W. Lucas purchased a home in
September 2007, shortly before the United States real estate market
collapsed. He alleged in his complaint that he lost his job, that his
Lucas v. Wells Fargo Bank
home suffered damage as a result of having been built on
expansive soil, and that federal programs designed to assist him
instead assisted only his lender, Wells Fargo Bank, NA (the Bank).
¶2 Lucas defaulted on his mortgage. The Bank foreclosed non‐
judicially and sold Lucas’s home at a foreclosure sale to the Federal
Home Loan Mortgage Corporation (Freddie Mac). Lucas sued
Freddie Mac, the Bank, eTitle Insurance Agency, and Jarl G.
Klungervik and M. Beth Klungervik as trustees of the Norseman
Family Trust (the Klungervik defendants), who had built the home
and sold it to Lucas. The trial court granted judgment on the
pleadings in favor of the Bank and Freddie Mac, and dismissed
Lucas’s claims against the remaining defendants. Lucas appeals;
we affirm.
¶3 Lucas appears pro se. “[A] party who represents himself will
be held to the same standard of knowledge and practice as any
qualified member of the bar. Nevertheless, because of his lack of
technical knowledge of law and procedure, [a pro se litigant]
should be accorded every consideration that may reasonably be
indulged.” State v. Winfield, 2006 UT 4, ¶ 19, 128 P.3d 1171 (citation
and internal quotation marks omitted). Here, the Bank asserts that
“Lucas’s appeal is made up of theories that are for the most part
untethered to his Complaint, the procedure by which the case was
litigated below, and the issues actually and properly decided by the
district court.” While we largely agree with this assessment, we
will nevertheless individually address each claim of error on
appeal.1
¶4 First, Lucas contends that the trial court erred in dismissing
his slander of title claim. “The slander of title claim,” he argues, “is
due to the forgery of Linda Green.” Citing a CBS News television
1. Given the often obscure presentation of Lucas’s claims on appeal,
we commend the appellees’ counsel for treating those claims
thoroughly and supplying necessary procedural context.
20120106‐CA 2 2013 UT App 117Lucas v. Wells Fargo Bank
program, Lucas asserts that “Linda Green” is “a woman in rural
Georgia whose signature was on thousands of mortgage
documents as a vice president of more than 20 banks—at the same
time.”
¶5 The Bank responds that this claim was not preserved in the
trial court. “[T]he preservation rule applies to every claim,
including constitutional questions, unless a defendant can
demonstrate that exceptional circumstances exist or plain error
occurred.” State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346 (citations
and internal quotation marks omitted). Lucas does not respond to
the Bank’s challenge, does not claim to have complied with the
preservation rule, and does not invoke any exception to it. For this
reason alone, we deny this claim on appeal.
¶6 But we also note that Lucas has not shown how the alleged
forgery could have slandered his title. The documents signed by
“Linda Green” merely substituted one Wells Fargo entity for
another as trustee (reflecting a merger at Wells Fargo) and
reconveyed a prior deed of trust encumbering the property. As a
result, when Lucas purchased the property he received title
unencumbered by the trust deed securing his seller’s loan.
¶7 Second, Lucas contends that the trial court erred in setting
aside a default certificate Lucas obtained against Freddie Mac. He
argues that no evidence shows that “counsel claiming to represent
[Freddie Mac] was ever authorized by [Freddie Mac].” Moreover,
“Freddie Mac,” he asserts, “is a fictitious entity” that “exists only
through paper work.”2 An appellant cannot carry his burden on
appeal if his brief does not “contain the contentions and reasons of
the appellant with respect to the issues presented, . . . with citations
to the authorities, statutes, and parts of the record relied on.” Utah
2. Lucas also discusses a Form 1099A he claims to have received
from Freddie Mac. Lucas does not explain how this Form 1099A
relates to any of his causes of action.
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R. App. P. 24(a)(9). Here, Lucas provides no support for the
dubious factual and legal premises of his argument—for example,
that an attorney must offer evidence that she is authorized to
appear on behalf of her client, or that counsel acting for Freddie
Mac offered none here.3 Accordingly, Lucas has not explained the
controlling legal rules on this question or established that the trial
court proceedings contravened them.
¶8 Third, Lucas contends that the trial court erred in dismissing
his claims against the Klungervik defendants on the ground of res
judicata. Lucas adequately explains the requirements of res
judicata, but he makes no attempt to apply this law to the facts of
his case. His brief contains “no specifics of the prior
litigation—such as the parties involved, the issues litigated, and
whether a final judgment was entered—necessary to conduct an
adequate res judicata analysis at trial or on appeal.” Berg v. Berg,
2012 UT App 142, ¶ 13, 278 P.3d 1071 (mem.). This omission is fatal
to his claim. “Pinpointing where and how the trial court allegedly
erred is the appellant’s burden.” GDE Constr. Inc. v. Leavitt, 2012
UT App 298, ¶ 24, 294 P.3d 567. “An appellate court that assumes
that burden on behalf of an appellant ‘distorts th[e] fundamental
allocation of benefits and burdens.’” Niemela v. Imperial Mfg., Inc.,
2011 UT App 333, ¶ 24, 263 P.3d 1191 (alteration in original)
(quoting State v. Robison, 2006 UT 65, ¶ 21, 147 P.3d 448). Because
Lucas has not carried his burden of demonstrating that the trial
court erred, we deny this claim on appeal.
¶9 Finally, Lucas contends that his due process rights were
violated because the Bank acquired his property without in fact
conducting a trustee’s sale. Lucas cites his affidavit, in which he
alleged that he went to “the courthouse” at the appointed time and
observed no auction.
3. In fact, Freddie Mac’s counsel points us to such evidence in the
record.
20120106‐CA 4 2013 UT App 117Lucas v. Wells Fargo Bank
¶10 The trial court held a hearing on defendants’ motion for
judgment on the pleadings. At that hearing, Lucas’s trial counsel
asserted that “[t]he auction actually never took place, as far as on
the steps.” The trial court cut off counsel’s argument, stating, “That
really isn’t the issue today. . . . It’s not even in the papers,” i.e., the
pleadings. The court further noted that “[t]he complaint does not
allege one word about the sale.” Lucas’s counsel did not disagree;
seek leave to amend the complaint, see Utah R. Civ. P. 15(a); or ask
the trial court to convert the motion into one for summary
judgment, see id. R. 12(c). Nor did she relate the trustee’s sale
allegation to any claim pleaded in the complaint. At the conclusion
of the hearing, the court ruled that “there is no allegation in the
complaint, at all, that Wells Fargo did anything other than follow
the statute as it is outlined in Title 57 and the other related sections
of the Utah code.” The court later added that although Lucas’s
counsel “tried to bring in a lot of extraneous stuff,” it was ruling
based on the pleadings alone. A week later, counsel filed Lucas’s
affidavit.
¶11 “If, on a motion for judgment on the pleadings, matters
outside the pleadings are presented to and not excluded by the
court, the motion shall be treated as one for summary judgment
and disposed of as provided in Rule 56 . . . .” Id. R. 12(c). Lucas
appeals from a judgment on the pleadings. Even if the allegations
in Lucas’s affidavit were presented, they were excluded by the
court. Thus, although Lucas does not frame his challenge in these
terms, according him “every consideration that may reasonably be
indulged,” State v. Winfield, 2006 UT 4, ¶ 19, 128 P.3d 1171 (citations
and internal quotation marks omitted), we construe his appellate
claim as a challenge to the trial court’s exclusion of his proffered
evidence that no sale took place.
¶12 Lucas offers no basis to conclude that the trial court erred in
so doing. His assertions—that the power of sale is circumscribed by
strict requirements, that due process must be observed when
government action deprives a person of liberty or property, and
that the federal government is one of delegated powers—are
20120106‐CA 5 2013 UT App 117Lucas v. Wells Fargo Bank
beyond dispute. However, they do not support his claim that the
trial court erroneously excluded matters outside the pleadings in
ruling on a motion for judgment on the pleadings.
¶13 Nor do we believe the trial court erred. “[I]t is well‐settled
that it is within the district court’s discretion whether to accept
extra‐pleading matter on a motion for judgment on the pleadings
and treat it as one for summary judgment or to reject it and
maintain the character of the motion as one under Rule 12(c).” 5C
Charles Alan Wright et al., Federal Practice and Procedure: Civil
§ 1371, at 273 (3d ed. 2004) (discussing the federal rule analogous
to rule 12(c) of the Utah Rules of Civil Procedure). Lucas points to
no record evidence suggesting that the trial court exceeded its
discretion here, nor did we find any. On the contrary, we conclude
that the trial court acted reasonably in conducting the hearing in an
orderly manner.
¶14 For the foregoing reasons, the judgment of the trial court is
affirmed.4
4. To the extent that we have not addressed other points or
subpoints raised in Lucas’s briefs, we have determined that they
either are foreclosed by the foregoing analysis or lack merit. See
State v. Carter, 776 P.2d 886, 888 (Utah 1989) (“[T]his Court need not
analyze and address in writing each and every argument, issue, or
claim raised and properly before us on appeal. Rather, it is a
maxim of appellate review that the nature and extent of an opinion
rendered by an appellate court is largely discretionary with that
court.”).
20120106‐CA 6 2013 UT App 117