Blas v. Bank of America, N.A., 041217 AKSC, S-16174

Docket Nº:S-16174
Party Name:LEO BLAS, Appellant, v. BANK OF AMERICA, N.A., Appellee.
Attorney:Leo Blas, pro se, Chugiak, Appellant. Nelson G. Page, Burr, Pease & Kurtz, Anchorage, for Appellee.
Judge Panel:Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.
Case Date:April 12, 2017
Court:Supreme Court of Alaska
 
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LEO BLAS, Appellant,

v.

BANK OF AMERICA, N.A., Appellee.

No. S-16174

Supreme Court of Alaska

April 12, 2017

Memorandum decisions of this court do not create legal precedent. A party wishing to cite such a decision in a brief or at oral argument should review Alaska Appellate Rule 214(d).

Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Eric A. Aarseth, Judge. Superior Court No. 3AN-14-04595 C I

Leo Blas, pro se, Chugiak, Appellant.

Nelson G. Page, Burr, Pease & Kurtz, Anchorage, for Appellee.

Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.

MEMORANDUM OPINION AND JUDGMENT

[*]

I. INTRODUCTION

A homeowner filed suit to bar a bank's attempt to non-judicially foreclose after he defaulted on his home loan payments. He argued a number of deficiencies prevented a foreclosure sale, including improper authority, notice, and procedure. After rejecting the homeowner's second amended complaint the superior court granted summary judgment in the bank's favor and dismissed the homeowner's suit. The homeowner appeals. Because the homeowner's arguments are without merit, we affirm.

II. FACTS AND PROCEEDINGS

A. Facts

In February 2008 Leo Blas obtained a $300, 000 adjustable rate 30-year loan secured by a deed of trust to his home. The deed of trust identified Bank of America, N.A. as the lender and beneficiary, and PRLAP, Inc. as the trustee. In March the Federal National Mortgage Association (Fannie Mae) "became the investor on [Blas's] loan... and remains the investor." Fannie Mae servicing guidelines explain that although "Fannie Mae is at all times the owner of [its] mortgage note[s], " servicers may be given temporary "possession of the mortgage note[s] whenever the servicer, acting in its own name, represents Fannie Mae's interests in foreclosure actions." Bank of America has been and remains the servicer on Blas's note and deed of trust.

In 2010 Blas defaulted on his loan. That November Bank of America assigned its interest in the deed of trust to BAC Home Loans Servicing, LP, and in December BAC Home Loans Servicing, LP replaced PRLAP, Inc. with ReconTrust Company as the successor trustee. After being served with a notice of default and intent to foreclose Blas filed a lawsuit to prevent foreclosure.

Bank of America regained its interest in the deed of trust in July 2011 as the "successor-by-merger to BAC Home Loans Servicing, Inc." Blas later reached a modification agreement with Bank of America, changing his terms to a $297, 887 40-year loan with the first payment due November 1. ReconTrust terminated the non-judicial foreclosure proceedings, and the parties jointly dismissed Blas's lawsuit in February 2012 pursuant to a confidential settlement agreement.

Blas defaulted on his loan a second time; his last payment was made October 30, 2012. Bank of America replaced ReconTrust with Regional Trustee Services Corporation as the successor trustee in November 2013. Regional Trustee Services recorded a notice of default on December 11.1Blas was personally served with the notice of default on December 24. Although a trustee sale originally was scheduled for March 14, 2014, the property has not been sold.

B. Proceedings

Blas - self-represented-filed a second lawsuit against Bank of America in January 2014 and amended his complaint in March. Although Blas listed Regional Trustee Services as a co-defendant in his first amended complaint, no evidence suggests that it ever was served a summons, and it never participated in the litigation. Blas's first amended complaint primarily sought to prevent the purportedly illegal foreclosure, alleging that neither Bank of America nor Regional Trustee Services had the authority to initiate foreclosure proceedings. Blas also sought $200, 000 in "compensatory and punitive damages" for harassment and expenses related to the two foreclosure attempts, as well as damages for intentional infliction of emotional distress, and suggested that his suit could become a class action.

After Blas amended his complaint the parties filed a number of motions, including summary judgment motions by both parties and three attempts by Blas to amend his complaint a second time. The superior court ultimately denied Blas's motions to accept his second amended complaint and dismissed all of Blas's claims against Bank of America on summary judgment. Blas - still self-represented - appeals.

III. STANDARD OF REVIEW

"[W]e review a superior court's denial of a motion to amend a complaint for abuse of discretion."[2] "[I]t is within a trial court's discretion to deny such a motion where amendment would be futile because it advances a claim or defense that is legally insufficient on its face."3 "We consider with independent judgment whether a proposed amended complaint could survive dismissal; if we conclude that it could not, we will hold that the superior court did not abuse its discretion by denying the motion for leave to amend."[4]

"We review a grant of summary judgment 'de novo, affirming if the record presents no genuine issue of material fact and if the movant is entitled to judgment as a matter of law.' "5"We are not bound by the reasoning of the trial court and can instead affirm a grant of summary judgment on alternative grounds."[6]

IV. DISCUSSION

A. The Superior Court Did Not Abuse Its Discretion By Rejecting Blas's Second Amended Complaint.

Blas appears to argue that the superior court abused its discretion by not accepting his "timely filed second amended complaint." Bearing in mind that we generally "consider pro se pleadings liberally in an effort to determine what legal claims have been raised, "7 we will decide whether the superior court abused its discretion when it rejected Blas's second amended complaint.

Blas's first amended complaint expanded on his initial complaint but proved confusing for the superior court. The 12-page first amended complaint has no numbered paragraphs, identifiable causes of action, or clearly cited legal authority relevant to a non-judicial deed of trust foreclosure, and is generally hard to decipher. It took the superior court three rounds of briefing to identify 16 causes of action in the first amended complaint and eventually dismiss all of Blas's claims.

After a round of summary judgment briefing the superior court dismissed some of Blas's claims, but provided him the opportunity to "add, subtract, or modify any language within the current Complaint... by filing a Second Amended Complaint" to avoid the dismissal of others. Blas responded by filing a second amended complaint in February 2015. On March 5 the court also issued a routine pretrial order giving Blas 3 0 days to "Amend Pleadings ... without Motion." In response Blas filed another second amended complaint, this time "per [the court's] March 5, 2015 RPO."

Both of these proposed second amended complaints were as difficult to decipher as the first amended complaint. The superior court found Blas's motion to accept his initial second amended complaint moot in light of his later submission and rejected the latest version without prejudice, stating that "[i]f [Blas] still wants to lodge a Second Amended Complaint, [he] shall comply with Civil Rules 8(a) and 10(b)."8

Blas filed a second amended complaint for a third time. Although in this third iteration Blas had numbered the majority of his paragraphs in compliance with Rule 10 and added numbered "Cause[s], " the substance remained largely identical to what had already been rejected.

The superior court rejected this third and final attempt to file a second amended complaint. Relying on Bush v. Elkins, 9 the superior court determined that accepting Blas's "Second Amended Complaint would unduly delay resolving this case." Because: (1) it...

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