Vieira v. CertusBank Nat'l Ass'n (In re Ladd)

• Decision Date: 04 September 2014
• Docket Number: Adv. Pro. No. 12–80238–dd,Bankruptcy Case No. 10–05226–dd
• Citation: 516 B.R. 66
• Court: U.S. Bankruptcy Court — District of South Carolina
• Parties: In re, Christopher Noel Ladd and Donna Lynn Ladd, Debtors. Michelle L. Vieira, as chapter 7 trustee for debtors Christopher Noel Ladd and Donna Lynn Ladd, Plaintiff, v. CertusBank National Association and Price, Pyles, Dangle, Parmer & Rooks, P.C., Defendants.

516 B.R. 66

In re, Christopher Noel Ladd and Donna Lynn Ladd, Debtors.Michelle L. Vieira, as chapter 7 trustee for debtors Christopher Noel Ladd and Donna Lynn Ladd, Plaintiff

v.CertusBank National Association and Price, Pyles, Dangle, Parmer & Rooks, P.C., Defendants.

Bankruptcy Case No. 10–05226–dd

Adv. Pro. No. 12–80238–dd

United States Bankruptcy Court, D. South Carolina.

Signed September 4, 2014

Aaron E. Edwards, Patrick T. Napolski, Lawrence E. Richter, Jr., The Richter Firm, LLC, Mt. Pleasant, SC, for Plaintiff.

George Barry Cauthen, Matthew G. Gerrald, Barnes Alford Stork & Johnson, LLP, Brandon K. Poston, Nelson Mullins Riley & Scarborough, Columbia, SC, for Defendants.

Chapter 7

ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION TO AMEND THE SCHEDULING ORDER

David R. Duncan, Chief U.S. Bankruptcy Judge

This matter is before the Court on a motion for summary judgment filed by defendant Price, Pyles, Dangle, Parmer & Rooks, P.C. (“PPDPR”) on May 8, 2014, and a supplement thereto filed on June 6, 2014. Also before the Court is a motion for summary judgment filed by defendant CertusBank National Association on May 14, 2014, and a supplement thereto filed on June 6, 2014. The plaintiff, Michelle L. Vieira, as chapter 7 trustee for the bankruptcy estates of debtors Christopher Noel Ladd and Donna Lynn Ladd (“Plaintiff”), filed a response in opposition to the motions for summary judgment, and the defendants both submitted replies in support of their motions. Additionally, Plaintiff filed a motion to amend the scheduling order on June 13, 2014. PPDPR responded in opposition, and CertusBank filed a limited response in which it neither opposed nor supported Plaintiff's motion. Plaintiff submitted a reply in support of her motion. The Court held a hearing on the motions on June 24, 2014. After careful consideration of the applicable law, arguments of counsel, and evidence submitted, the defendants' motions for summary judgment are granted, and Plaintiff's motion to amend the scheduling order is denied.

FACTS¹

This dispute arises out of several loan agreements between the Ladds and First Georgia Banking Company (“First Georgia”). The first note was signed by Donna Ladd and is dated April 6, 2004. CertusBank's ex. K (Docket 105–12); D. Ladd Dep. 20–22 (Docket 107–2); C. Ladd Dep. 108–109 (Docket 107–1). The note was for the purchase of an Infiniti automobile and was in the amount of $58,959.98. CertusBank's ex. K; D. Ladd Dep. 20–22; C. Ladd Dep. 108–109. Donna Ladd does not recall whether she paid off this loan, but she knows she has never been sued for collection on it. D. Ladd Dep. 26; C. Ladd Dep. 111. Subsequently, Donna Ladd purchased a Chevy Tahoe, which was financed through a note dated October 31, 2005, with a note number ending in 8489 in the amount of $72,901.55. CertusBank's ex. L (Docket 105–13); C. Ladd Dep. 111–13. Neither the April 6, 2004 note nor the October 31, 2005 note is mentioned in Plaintiff's second amended complaint. The Court will refer to the October 31, 2005 note as “Loan X.”

Chris Ladd signed the last page of a “Note, Disclosure and Security Agreement” dated September 12, 2005, in the amount of $27,683. CertusBank's ex. A (Docket 105–2); C. Ladd Dep. 43. This loan is referenced as “Loan 1” in the second amended complaint and was secured by a 1997 Cadillac Catera.² CertusBank's ex. A. As of February 14, 2007, Chris Ladd was behind on his monthly payments on Loan 1. CertusBank's ex. C (Docket 105–4); C. Ladd Dep. 46.

Chris Ladd signed page 3 of a document titled “Consumer Real Estate Secured Balloon Note” dated May 25, 2006, reflecting a principal loan amount of $77,053.35. CertusBank's ex. D (Docket 105–5); C. Ladd Dep. 47–48. He does not recall whether he had pages 1 and 2 when he signed page 3. C. Ladd Dep. 48. He would not routinely sign a contract without having the first few pages of the contract. Id . He does not remember whether he read the May 25, 2006 note, but he normally reads contracts before signing them. Id . at 49. At his deposition, Chris Ladd testified he would not have signed a balloon note and that he did not know the terms of Loan 2. Id . at 102. Plaintiff refers to the May 25, 2006 note as Loan 2 in the second amended complaint. Donna Ladd testified at her deposition that she “believe[s]” her signature is on page 3 of Loan 2, but she is not sure. D. Ladd Dep. 32–33. The proceeds of Loan 2 were used to pay off the balance of Loan X. CertusBank's ex. L; CertusBank's ex. M (Docket 105–14); C. Ladd Dep. 116–18, 120.

Plaintiff alleges First Georgia represented to the Ladds that Loan 2 would only be secured by a Chevy Tahoe and that various documents involved in Loan 2 contain forgeries of the Ladds' signatures, including a security deed for real property the Ladds owned at 925 White Oak Drive, Newnan, Georgia (“Newnan property”). Plaintiff also alleges First Georgia represented to the Ladds that Loan 1 would be consolidated into Loan 2. Chris Ladd testified at his deposition that he did not sign a security deed and that someone forged his name to the security deed. C. Ladd Dep. 52, 77. He does not know who signed his name to the security deed. Id . at 77–78. Donna Ladd testified at her deposition that she did not sign a security deed and she does not remember seeing a security deed. D. Ladd Dep. 54–55. Additionally, Chris Ladd alleges that his purported signature on a “notice of right of rescission for closed-end credit” in connection with Loan 2 is a forgery. C. Ladd Dep. at 61–62. Donna Ladd testified at her deposition that her purported signature on a settlement statement in connection with Loan 2 is not genuine and that she does not know who signed her name to this document. D. Ladd Dep. 43–44. She also testified the signature appearing on a truth in lending disclosure in connection with Loan 2 is not hers and she does not know who signed her name to this document. Id . at 46. In addition, she indicated she does not recall seeing a notice of right to copy of appraisal report related to Loan 2 and that the signature on this document is questionable. Id . at 47–48. She “thinks” the signature on a notice of right of recession is hers but does not remember signing the document. Id . at 48. She testified the signature on an agreement to provide insurance appears to be hers but she does not recall signing the document.Id . at 50. When asked why she felt the date next to her signature on the agreement to provide insurance was “iffy,” she responded: “Because I don't—I don't date it like that, and Chris doesn't date it like that. So—and I don't remember ever seeing anything about an Allstate Insurance on Sutherland Drive. Never heard of that in my life.” Id . at 50–51. Finally, she asserts she has never seen a consumer security agreement in connection with Loan 2 and that the signature on this document is not her signature. Id . at 52.

On or about May 17, 2006, the Ladds received an offer of purchase and sale on the Newnan property, which they accepted on May 25, 2006. CertusBank's ex. G (Docket 105–8); C. Ladd Dep. 69–70. The Ladds conveyed the Newnan property to the purchaser by warranty deed dated June 8, 2006, which was recorded on June 9, 2006. CertusBank's ex. H (Docket 105–9); C. Ladd Dep. 80–81; D. Ladd Dep. 56–57. The alleged forged security deed on the Newnan property was recorded on July 10, 2006.

What Plaintiff describes as Loan 3 in the second amended complaint is a “Consumer Loan Agreement—Closed–End” dated June 8, 2006, in the amount of $21,139.70 with a Bayliner boat as collateral. CertusBank's ex. F (Docket 105–7). Chris Ladd initially testified at his deposition that his signature appears on the final page of this loan agreement but then indicated he was not certain because there is no date next to the signature and he normally puts a date next to his signature. C. Ladd Dep. 81–83. He recalls signing a document similar to CertusBank's exhibit F to purchase a Bayliner boat. Id . at 83.

In a letter dated May 12, 2007, addressed to an employee of First Georgia, Chris Ladd indicated he was aware of First Georgia's position that the Newnan property was security for Loan 2. CertusBank's ex. K (Docket 97–12). In this letter, Chris Ladd stated “as far as the charge of selling the Newnan Property without paying off the loan with you, I had no idea that it was tied to my house.” Id .

The Ladds entered into a forbearance agreement with First Georgia, which is dated July 2, 2007. CertusBank's ex. I (Docket 105–10). Chris Ladd acknowledges initialing pages 1 and 3 and signing page 4 of the forbearance agreement but believes someone forged his initials on page 2. C. Ladd Dep. 131–32. He believes there is something different about the last page of the forbearance agreement he signed and the agreement shown to him at his deposition. Id . Donna Ladd acknowledges initialing pages 1 through 3 and signing page 4 of the forbearance agreement. D. Ladd Dep. 57–58. Page 1 of the forbearance agreement, which the Ladds acknowledge initialing, lists the loan numbers, dates, and amounts for Loan 1, Loan 2, and Loan 3. CertusBank's ex. I. Page 1 also states “Borrowers are in default pursuant to the terms of the Loans as a result of their failure to make monthly payments as required pursuant to the terms of the Loan Documents and, as to [Loan 2], by the conversion of the collateral through the sale of real property pledged for that loan.” Id .

First Georgia, on February 10, 2009, filed suit in state court in Carroll County, Georgia against the Ladds (“Carroll County action”). Second Am. Compl. ex. 12 (Docket 64–12). In the complaint filed in the Carroll County action, First Georgia alleged Chris Ladd was obligated on Loans 1 and 3 and both Ladds were obligated on Loan 2. Id . First Georgia alleged the Ladds defaulted on these loans by not making the monthly payments when due and by selling the Newnan property.Id . First Georgia asserted causes of action for...