Opinion
C.A. No. 08L-12-131 FSS.
Submitted: August 5, 2011.
Decided: August 5, 2011.
ORDER
This is a mortgage foreclosure case. The property is a house owned by Defendant as an investment. As discussed below, it appears that Defendant has not made a payment on the mortgage since 2008.
1. On May 12, 2011, a commissioner held a hearing on Plaintiff's Motion for Summary Judgment.
2. On May 17, 2011, the commissioner issued an order granting the motion.
3. On May 27, 2011, Defendant, pro se, timely appealed under Superior Court Civil Rule 132(a)(4)(ii), albeit mislabeled as "Exception from Commissioner's Ruling — Report."
4. Defendant did not cause a transcript to be prepared, served, and filed as called for by Rule 132(a)(4)(iii). Accordingly, on June 6, 2011, the court dismissed the appeal without prejudice to Defendant's ordering a transcript at her expense within ten days. The order further provided that Defendant's failure to order the transcript would result in the dismissal being with prejudice, without further notice or opportunity to be heard.
5. It appears that Defendant requested the transcript on June 13, 2011, but she did not make a deposit for its cost. Defendant made a deposit no earlier than June 24, 2011, and probably June 27, 2011, but left the balance owing. Defendant did not pay for the transcript until today. Taking it all into account, Defendant did not cause a transcript to be prepared at her expense until today, six weeks after the deadline.
6. Thus, by the June 6, 2011 order's terms, the dismissal was automatically with prejudice as of June 20, 2011.
7. As stated above, Defendant paid for the transcript today. As a courtesy, the court reviewed it to learn what happened at the May 12, 2011 hearing.
8. The appeal raises four points. First, Defendant contends that the commissioner did not read her brief before the hearing. Assuming, but without finding that claim is accurate, it does not matter how the court prepared for the hearing.
9. Second, Defendant contends that the commissioner did not allow her to present a defense. The transcript shows otherwise. To be sure, there was a lot of back-and-forth, but that was largely prompted by Defendant's non-responsiveness to the commissioner's direct questions. For the most part, the commissioner was trying to use the court's time efficiently by focusing on the issues, such as whether there was a mortgage and whether it was current or in default. For example, the commissioner asked Defendant whether she had signed the purported mortgage and whether it was her signature that appeared on it. Defendant's response to the commissioner's repeated questions about that was she could not say whether she signed the mortgage until she had more time to examine the signature on the document. As discussed below, Defendant insisted that she was entitled to examine the original mortgage for ten days to decide whether to admit or deny that the signature on the mortgage was her own. This, in a case where the problem was an alleged default.
10. Third, Defendant alleges that the commissioner did not allow her "to read any prepared defense, or present any proof of my case for a Dismissal." Repeatedly, Defendant argued fraud but she did not provide specifics. Even now, Defendant does not present anything supporting a defense to summary judgment, much less a reason for the complaint's "dismissal."
11. Fourth, as mentioned, Defendant insists that she was entitled to have ten days in which to review the original mortgage. Defendant, however, provides no support for that claim, such as a transcript of the pretrial order or ruling that she invokes. More importantly, Defendant's argument about her signature should begin with her sworn testimony that she did not sign the mortgage or that she is not in default. Mostly, it seems that Defendant wants to argue that the mortgage was improperly assigned by the original lender, and that justifies her default.
12. Had Defendant properly perfected her appeal by obtaining a transcript at her expense, it is unlikely that the commissioner's decision, which appears to be based on the evidence presented at the May 12, 2011 hearing, the law, and basic reasoning would have been reversed.
For the foregoing reasons, Defendant's appeal of the May 17, 2011 order granting summary judgment is DISMISSED with prejudice as untimely. In the alternative, the commissioner's order is AFFIRMED.
IT IS SO ORDERED.