Opinion
NO. 2015-CA-001554-MR
05-26-2017
THE ESTATE OF MARY RUTH LINTON, BY AND THROUGH THE EXECUTOR APPELLANT v. DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY ABS CAPITAL 1 INC. TRUST 2003-HE1 APPELLEES
BRIEF FOR APPELLANT: James P. Pruitt, Jr. Pikeville, Kentucky BRIEF FOR APPELLEE: Edmund Scott Sauer Nashville, Tennessee Mark D. Rucker Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM PIKE CIRCUIT COURT
HONORABLE EDDY COLEMAN, JUDGE
ACTION NO. 07-CI-00015 OPINION
AFFIRMING
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BEFORE: JONES, D. LAMBERT AND TAYLOR, JUDGES. LAMBERT, D., JUDGE: This is an appeal from a real estate foreclosure. The Estate of Mary Ruth Linton (the Estate) sought post-judgment relief in an attempt to set aside a summary judgment order in favor of Deutsche Bank National Trust Company (Deutsche Bank) and a subsequent order confirming the judicial sale of the Estate's home. The Pike Circuit Court denied the Estate's motion for post-judgment relief as untimely. After review, we affirm.
I. BACKGROUND
In 2003, Mary Ruth Linton executed an adjustable rate promissory note secured by a mortgage on her home. She defaulted on the promissory note three years later. By that time, the note had allegedly been assigned to appellee Deutsche Bank, which initiated foreclosure proceedings in January 2007. The circuit court granted summary judgment in favor of Deutsche Bank two years later.
Linton later filed a motion to alter, amend or vacate the judgment. After Linton died in 2010, the Estate replaced her as a party. The Estate withdrew the post-judgment motion to alter, amend or vacate on September 30, 2013.
Nearly two years after that, on August 7, 2015, the Estate moved to reopen the case. The Estate brought several arguments in support of that motion. Primarily, the Estate claimed that Deutsche Bank had failed to prove it was the holder of the promissory note during the foreclosure action. The circuit court denied the motion, ruling that the Estate had failed to present any ground for relief that would justify setting aside a five-year-old judgment "that became final almost two years ago." In particular, the circuit court found that the Estate was not entitled to relief under CR 60.02 because it could have challenged whether Deutsche Bank was the proper party to bring the foreclosure action "at any time since 2007." This appeal followed.
Kentucky Rules of Civil Procedure.
II. STANDARD OF REVIEW
The trial court retains broad discretion in deciding whether to grant motions pursuant to CR 59.05 and CR 60.02. See Kurtsinger v. Board of Trustees of Kentucky Retirement Systems, 90 S.W.3d 454, 456 (Ky. 2002). A CR 59.05 motion must be brought within 10 days after the entry of a final judgment. See CR 59.05. A motion on grounds (a), (b), and (c) of CR 60.02 must be brought with one year of a final judgment, while a motion on grounds (d), (e), and (f) must only be brought within a "reasonable time" following a judgment. See CR 60.02. Whether a motion is timely under CR 60.02 (d)-(f) is left to the trial court's sound discretion. Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983).
III. DISCUSSION
On appeal, the Estate echoes its previous argument that Deutsche Bank inadequately established its rights in the promissory note during the foreclosure. The Estate further claims, without addressing the ruling sub judice as to the timeliness of its post-judgment motions, that Deutsche Bank's alleged failure of proof created a genuine factual issue which rendered the 2009 summary judgment improper. For the following reasons, the Estate's position is unpersuasive.
Under CR 60.02, when more than one year has passed since the entry of a final judgment, a party seeking relief must show at least one of the following has occurred:
(d) fraud affecting the proceedings, other than perjury or falsified evidence; (e) the judgment is void, or has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (f) any other reason of an extraordinary nature justifying relief.Moreover, "CR 60.02 requires extrinsic fraud or 'fraud upon the court' . . . that species of fraud which does or attempts to subvert the integrity of the court itself." Goldsmith v. Fifth Third Bank, 297 S.W.3d 898, 904 (Ky. App. 2009)(internal quotations and citations omitted).
Here, we agree with the circuit court's view that the Estate failed to present a timely CR 60.02 motion. Whether Deutsche Bank produced sufficient documentation evincing its interest in the promissory note was not an issue of fraud or any other extraordinary situation contemplated by the rule—it was an issue that should have been raised in the Estate's first post-judgment motion at the latest. From there, a regularly prosecuted appeal filed within 30 days of September 30, 2013, would have been the proper course. CR 73.02. "CR 60.02 is not a supplemental appeal procedure," Wimsatt v. Haydon Oil Co., 414 S.W.2d 908, 910 (Ky. 1967), much less a way to challenge the propriety of a summary judgment five years after the fact based on evidence readily available at the time.
Certainly this was an issue that should have been raised before the original summary judgment was entered; however, this Court is not fully aware of the parties' circumstances around that time. It appears there was at least some excusable delay while the Estate sought to be substituted as a party. --------
Accordingly, the decision of the Pike Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: James P. Pruitt, Jr.
Pikeville, Kentucky BRIEF FOR APPELLEE:
Edmund Scott Sauer Nashville, Tennessee Mark D. Rucker
Lexington, Kentucky