Cornerstone Mortg., Inc. v. Ponzar

• Decision Date: 09 March 2021
• Docket Number: No. ED 108758,ED 108758
• Citation: 619 S.W.3d 524
• Parties: CORNERSTONE MORTGAGE, INC., Respondent, v. Kurt PONZAR and Sandra Ponzar, Appellants.
• Court: Missouri Court of Appeals

619 S.W.3d 524

CORNERSTONE MORTGAGE, INC., Respondent,

v.Kurt PONZAR and Sandra Ponzar, Appellants.

No. ED 108758

Missouri Court of Appeals, Eastern District, DIVISION TWO.

Filed: March 9, 2021

Kurt W. Ponzar, 68 West Meath St., Weldon Springs, Mo 63304, pro se.

James E. Klenc, PO Box 758, St. Peters, MO 63376, for appellant.

Matthew S. Layfield, 100 South 4^th Street, Ste. 1000, Saint Louis, MO 63102, for respondent.

Robin Ransom, Presiding Judge

Introduction

Kurt Ponzar and Sandra Ponzar ("the Ponzars") appeal from the judgment of the trial court denying their Motion to Vacate Interlocutory Orders and Enter Judgment of Dismissal and retroactively declaring that the interlocutory order dated November 23, 2011, was a final appealable order. The Ponzars raise six points of error on appeal, none of which require reversal. We affirm.

Background

This case has a long and tortured history before this Court. We incorporate the facts and procedural history as previously determined by this Court in Cornerstone Mortg., Inc. v. Ponzar , 254 S.W.3d 221 (Mo. App. E.D. 2008) (" Cornerstone I "); Cornerstone Mortg., Inc. v. Ponzar , 318 S.W.3d 250 (Mo. App. E.D. 2010) (" Cornerstone II "), and its corresponding unpublished memorandum, Cornerstone Mortg., Inc. v. Ponzar , ED93337, unpublished mem. (Mo. App. E.D. June 22, 2010); and Ponzar v. Am. Nat. Prop. & Cas. Co. , 405 S.W.3d 562 (Mo. App. E.D. 2013) (per curiam). As relevant to this appeal, the facts are as follows.

In January 2006, the Ponzars applied with Cornerstone Mortgage, Inc. ("Cornerstone") to refinance their existing home loan with a balance of $491,894.96 secured by their residence in Weldon Springs, Missouri ("the Property"). The Ponzars’ new loan with Cornerstone closed on January 19, 2006, and, on that date, Mr. Ponzar signed a promissory note ("the Note"), Mr. and Mrs. Ponzar both signed a Deed of Trust securing their new Cornerstone loan ("the Cornerstone Loan") with the Property, and Cornerstone paid $491,894.96 to the Ponzars’ former mortgage holder to pay off the Ponzars’ former loan. Four days later, the Ponzars sent a letter rescinding the Cornerstone Loan under the Truth in Lending Act ("TILA").

Cornerstone subsequently filed suit for: declaratory judgment to determine both whether the Ponzars properly rescinded the Cornerstone Loan and, if they did, their liability for the return of the principal balance of the Cornerstone Loan (Count I); unjust enrichment for the $491,894.96 payment Cornerstone made to pay off the Ponzars’ former loan (Count II); and imposition of an equitable lien on the property under the Deed of Trust signed by the Ponzars (Count III).¹ The trial court granted summary judgment in favor of Cornerstone, which the Ponzars appealed to this Court. In Cornerstone I , this Court found, as relevant to this appeal, that the Ponzars successfully rescinded the Cornerstone Loan under TILA, Mrs. Ponzar was not liable under the Note because she did not sign it, and the Ponzars were required but had failed to tender payment to Cornerstone for its satisfaction of the Ponzars’ former loan. 254 S.W.3d at 225-30, 233. The case was remanded to the trial court for further proceedings to enforce the Ponzars’ obligation to tender. Id. at 234.

On remand, the trial court entered judgment in favor of Cornerstone on all three counts ("the June 2009 Judgment"). On Count I, the trial court declared Mr. Ponzar owed Cornerstone $491,894.96 under the Note and imposed a lien on both Mr. and Mrs. Ponzars’ interest in the Property, authorizing Cornerstone to request a writ of execution to the Sheriff's office for the purpose of conducting an execution sale to satisfy the judgment and lien if Mr. Ponzar did not pay the judgment within 30 days. On Count III, the trial court imposed an equitable lien against Mr. Ponzar's interest in the Property. Following a jury trial on Count II, the jury rendered a verdict against both Mr. and Mrs. Ponzar, finding they were unjustly enriched by Cornerstone's pay off of $491,894.96 for the former loan.² The June 2009 Judgment further directed Cornerstone could have only one recovery, not duplicative, on the three counts; and ordered the Ponzars to insure the Property and name Cornerstone as a loss-payee under the policy. On appeal, this Court in Cornerstone II affirmed the June 2009 Judgment. 318 S.W.3d at 254.

In accordance with the June 2009 Judgment ordering the Ponzars to add Cornerstone as an additional insured on the Ponzars’ homeowner's insurance policy for the Property, the record includes both a 30-day insurance binder and an Addendum to Binder, both dated July 15, 2010. Both the 30-day insurance binder and the Addendum to Binder purported to add Cornerstone as an additional insured on the Ponzars’ policy through American National Property and Casualty Company ("ANPAC"), and while the 30-day insurance binder specified that coverage under the binder would end 30 days from July 15, 2010, the Addendum to Binder contained no such end date. The Addendum to Binder provided that "[a]ny loss or damage arising under this policy shall first be paid to Cornerstone ... to the extent of its judgment lien."

In October 2010, Mrs. Ponzar notified the trial court she had filed suggestions of bankruptcy. Cornerstone applied for relief from the automatic stay of legal action against the debtor, including enforcement of a judgment, that accompanies bankruptcy filings.³ The bankruptcy court granted Cornerstone relief from the stay on December 20, 2010, after a hearing. The bankruptcy court found that Cornerstone was a secured creditor and party in interest with respect to Mrs. Ponzar in that Cornerstone was the holder of a final, unavoidable judgment entered on June 11, 2009, against Mrs. and Mr. Ponzar, which granted Cornerstone a lien on Mr. and Mrs. Ponzars’ interest in the Property. Accordingly, the bankruptcy court held that "the automatic stay as set forth in 11 U.S.C. section 362 is terminated, annulled and modified as it relates to [Mrs. Ponzar's] right, title and interest in the Property to allow Cornerstone to pursue all rights and remedies available to Cornerstone with respect to the Property under applicable non-bankruptcy law."

In February 2011, a fire occurred at the Property, and ANPAC determined the net payable claim to be $62,692.52 for damage to the dwelling, plus an additional $7,347.56 for damage to the contents. Both Cornerstone and the Ponzars claimed entitlement to the insurance proceeds. ANPAC filed a petition for declaratory judgment seeking a determination of to whom it should pay the insurance proceeds. As well, Cornerstone filed for and was granted a writ of garnishment directed to ANPAC with a return date of October 18, 2011, to garnish the insurance payment to satisfy the Ponzars’ debt under the June 2009 Judgment.

After a hearing on the various pending claims, the parties in August 2011 agreed ANPAC would deposit funds of $69,640.08 into the trial court pending further order, fully disposing of all claims under the garnishment order ("Pay In Order"). Simultaneous to the garnishment proceedings, in accordance with the June 2009 Judgment, Cornerstone executed a writ of execution against the Property, conducted a sheriff's sale, and purchased the Property for $300,000.00. Finally, Cornerstone filed a motion to disburse the funds, and on November 23, 2011, the trial court granted the motion and ordered the funds in the amount of $69,640.08 be disbursed to Cornerstone ("Disbursement Order").

The Ponzars appealed the Disbursement Order to this Court. Cornerstone Mortg., Inc. v. Ponzar , ED97872. This Court issued an Order to Show Cause, noting that the Disbursement Order was not denominated a judgment and was therefore not appealable, and instructed appellants to file a supplementary legal file with a judgment that complied with Rule 74.01(a).⁴ The Ponzars responded by stating their belief the trial court's Disbursement Order was not a final appealable judgment, and they requested this Court dismiss the appeal, which this Court did in March of 2012.

Meanwhile, the Ponzars and their adult daughter Erika Ponzar filed a separate cause of action against ANPAC and Cornerstone in St. Louis County. This petition for damages asserted multiple claims against ANPAC and also a claim against Cornerstone alleging tortious interference for demanding payment from ANPAC. ANPAC filed a motion for summary judgment and Cornerstone filed a motion to dismiss, both arguing that the Ponzars’ challenges to the distribution of the insurance proceeds had already been decided by the Circuit Court of St. Charles and that re-litigation of the issues was precluded. The trial court granted both motions, and the Ponzars appealed. This Court affirmed the trial court's judgment in an order pursuant to Rule 84.16(b). Ponzar v. Am. Nat. Prop. & Cas. Co. , 405 S.W.3d 562 (Mo. App. E.D. 2013) (per curiam).

Seven years after the Disbursement Order, Mrs. Ponzar⁵ filed a Motion to Vacate Interlocutory Orders and Enter Judgment of Dismissal ("Motion to Vacate"), requesting that the August 2011 Pay In Order and the November 2011 Disbursement Order be set aside. Mrs. Ponzar argued: (1) the writ of garnishment expired on October 18, 2011, and thus the trial court had no authority to issue the November 23, 2011 Disbursement Order; (2) the trial court did not have jurisdiction over the res, did not have personal jurisdiction over Mrs. Ponzar, and did not have subject matter jurisdiction to adjudicate the provisions of her and Mr. Ponzar's homeowner's insurance policy, which was an asset of her bankruptcy estate and thus subject to an automatic stay preventing any party from taking any action to collect the debt; and (3) the garnishment proceeding was a "ruse" to collect a judgment owed by Mr. Ponzar from the assets of Mrs. Ponzar. Mr. Ponzar filed a pro se memorandum in support arguing the trial court did not have jurisdiction over the proceeds of the insurance policy...