Homebuyers Inc. v. Watkins
| Decision Date | 04 June 2019 |
| Docket Number | No. A-18-258.,A-18-258. |
| Parties | HOMEBUYERS INCORPORATED, A NEBRASKA CORPORATION, APPELLEE, v. BRUCE A. WATKINS AND PATSEY WATKINS, DEFENDANTS AND THIRD-PARTY PLAINTIFFS, APPELLANTS, AND WELLS FARGO HOME MORTGAGE AND WELLS FARGO BANK, N.A., THIRD-PARY DEFENDANTS, APPELLEES. |
| Court | Nebraska Court of Appeals |
(Memorandum Web Opinion)
Appeal from the District Court for Lancaster County: JOHN A. COLBORN, Judge. Affirmed.
Terry K. Barber, of Barber & Barber, P.C., L.L.O., for appellants.
Nancy L. Loftis for appellee Homebuyers Incorporated.
Jennifer L. Andrews and Dwyer Arce, of Kutak Rock, L.L.P., for appellee Wells Fargo Bank, N.A.
Bruce A. Watkins and his wife, Patsey Watkins, purchased a home in Lincoln financed by a promissory note with Wells Fargo Home Mortgage, which note was secured by a deed of trust. Because the Watkinses failed to make payment on the note, the trustee foreclosed on the property. It was subsequently conveyed to Homebuyers Incorporated (Homebuyers). Homebuyers initiated a forcible entry and detainer action against the Watkinses, and the Watkinses filed a third-party complaint against Wells Fargo Bank, N.A. (Wells Fargo). Homebuyers moved for summary judgment on their complaint, which the court granted. Wells Fargo moved to dismiss the Watkinses' claims against it for failing to state a claim for which relief could be granted, which the court also granted. The Watkinses appeal, and we affirm.
On April 27, 2005, the Watkinses were conveyed a home in Lincoln secured by a deed of trust for which Wells Fargo was the beneficiary. In the deed, the Watkinses acknowledged that they owed a debt to Wells Fargo under a separate note. The deed granted the trustee the power of sale in the event the Watkinses failed to make the monthly payments described in the note. The Watkinses failed to make the payments on the note in 2015, and Wells Fargo corresponded with them in letters, dated September 8, 2015, September 9, 2016, and February 11, 2017. These letters noted that their payments were past due and informed them that they may qualify for a loan modification.
Because of the Watkinses' failure to make payments on the note, the trustee executed her power of sale at a foreclosure sale on April 13, 2016. At the foreclosure sale, REO Asset Management Company (REO) purchased the property by trustee's deed, which was executed on April 18 and recorded with the Lancaster County Register of Deeds on April 22. REO conveyed the property to Homebuyers by an April 18 corporate warranty deed, which was recorded with the Lancaster County Register of Deeds on April 25.
On April 14, 2016, Homebuyers posted a written notice on the property, directing the Watkinses to vacate within 3 days. The Watkinses did not vacate the property, so Homebuyers filed a forcible entry and detainer action against the Watkinses in Lancaster County Court. The case was subsequently certified to the district court for Lancaster County. The Watkinses filed an answer denying the allegations in Homebuyers' complaint.
The Watkinses filed a third-party complaint against Wells Fargo. The complaint alleged causes of action for wrongful foreclosure, violations of the "Home Affordability Modification Program," breach of contract, and violations of Nebraska's consumer protection statutes. The complaint also alleged that the Watkinses' adjustable interest rate was against public policy as evidenced by federal law. The district court dismissed this complaint without prejudice. The Watkinses thereafter filed a second amended third-party complaint; however, this pleading was not included in our record. Wells Fargo filed a motion to dismiss the second amended third-party complaint, although this motion also was not included in our record.
Homebuyers filed a motion for summary judgment on April 27, 2017. In response, the Watkinses filed a motion asking the district court to dismiss Homebuyers' complaint for lack of subject matter jurisdiction due to their title dispute with Wells Fargo. The district court held a hearing on Homebuyers' motion for summary judgment on June 19. The court received the affidavit of Todd Green, the chief operating officer of Homebuyers; the trustee's deed, which granted title of the property to REO; the corporate warranty deed, which granted title of the property to Homebuyers; and two copies of the motion to vacate that Homebuyers posted on the property. The Watkinses offered no evidence at this hearing.
On August 30, 2017, the district court entered an order, granting Wells Fargo's motion to dismiss the Watkinses' second amended third-party complaint. The court found that the Watkinses failed to state a claim for which relief could be granted as to each cause of action. The district courtdismissed with prejudice the Watkinses attempts to allege causes of action for wrongful foreclosure, quiet title, breach of contract, breach of implied covenant of good faith and fair dealing, violations of Nebraska's consumer protection statutes, and unjust enrichment through ignoring the homestead exemption. The court noted that because it had dismissed these allegations in previous iterations of the Watkinses' third-party complaint, justice did not require the court grant them leave to amend their complaint. However, the court dismissed without prejudice their claims for promissory estoppel, violations of Regulation X, misrepresentation, negligent servicing, and unjust enrichment due to Wells Fargo ignoring their rights as occupants and claimants.
The same day, the district court entered an order granting Homebuyers' motion for summary judgment. The court found that the trustee's deed and corporate warranty deed demonstrated that the property was conveyed to Homebuyers. The court noted that the Watkinses did not argue that they had a superior right to immediate possession, but rather they challenged the validity of the trustee's deed. The court referred to its determination regarding the validity of the trustee's deed in its order on Wells Fargo's motion to dismiss the Watkinses' second amended third-party complaint. The court also found that the validity of the deed was irrelevant to the issue of immediate right of possession.
The Watkinses filed a third amended third-party complaint on October 6, 2017. In addition to their factual allegations, they alleged 11 causes of action: (1) wrongful foreclosure, (2) quiet title, (3) breach of contract, (4) breach of implied covenant of good faith and fair dealing, (5) promissory estoppel (6) violations of Nebraska's consumer protection statutes, (7) violations of Regulation X, (8) misrepresentation, (9) negligent servicing, (10) "Unjust Enrichment (Assumpsit) -- Homestead," and (11) "Unjust Enrichment (Assumpsit) -- Occupants and Claimants." They attached to their third amended third-party complaint their deed of trust and the letters addressed to them from Wells Fargo dated September 8, 2016, September 9, 2016, and February 11, 2017. We discuss the allegations in this complaint further as necessary in our analysis below. Wells Fargo moved to dismiss this complaint, although the motion is not in the record.
On January 2, 2018, the district court entered an order granting Wells Fargo's motion to dismiss the Watkinses' third amended third-party complaint. The court observed that it had previously dismissed with prejudice six of the Watkinses' claims. Noting that the additional allegations in the Watkinses' third amended third-party complaint "do not cure the deficiencies of the Second Amended Complaint as identified by this Court in its August 30, 2017 Order," the court dismissed those allegations without discussion. The court thoroughly analyzed the Watkinses' remaining allegations and causes of actions, finding that, as to each, the Watkinses failed to state a claim for which relief can be granted.
The Watkinses appeal.
The Watkinses assign, restated, that the district court erred in (1) granting summary judgment to Homebuyers and (2) dismissing their third amended third-party complaint for failing to state a claim upon which relief could be granted.
The Watkinses also assigned that the district court erred "in determining that [their] allegations and preliminary showing, with regard to the title to their home, or the validity of thetrustee's deed was irrelevant to summary judgment." The Watkinses made no argument in support of this assignment. Errors must be both assigned and argued to be addressed by an appellate court. Applied Underwriters v. E.M. Pizza, 26 Neb. App. 906, 623 N.W.2d 789 (2019). Thus, we decline to discuss this assigned error, except as it relates to the Watkinses' assignment concerning the district court's summary judgment award.
An appellate court will affirm a lower court's grant of summary judgment if the pleadings and admitted evidence show that there is no genuine dispute as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. See Larsen v. 401 Main Street, 302 Neb. 454, 923 N.W.2d 710 (2019). In reviewing a summary judgment, the court views the evidence in the light most favorable to the party against whom the judgment was granted and gives such party the benefit of all reasonable inferences deducible from the evidence. Chase County v. City of Imperial, 302 Neb. 395, 923 N.W.2d 428 (2019).
A district court's grant of a motion to dismiss is reviewed de novo. Marie v. State, 302 Neb. 217, 922 N.W.2d 733 (2019). When reviewing an order dismissing a complaint, an appellate court accepts as true all facts which are well pled and the proper and reasonable inferences of...
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