Opinion
NO. 2015-CA-001476-MR
03-17-2017
COLEEN MICHELLE SPANN APPELLANT v. WELLS FARGO BANK, NATIONAL ASSOCIATION; LERNER, SAMPSON, & ROTHFUSS CORPORATION APPELLEES
BRIEF FOR APPELLANT: Coleen Michelle Spann, pro se Louisville, Kentucky BRIEF FOR APPELLEE, WELLS FARGO BANK, N.A.: Christy A. Ames Katherine A. Bell Bethany A. Breetz Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE OLU A. STEVENS, JUDGE
ACTION NO. 14-CI-005688 OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; D. LAMBERT, AND J. LAMBERT, JUDGES. LAMBERT, J., JUDGE: Coleen Michelle Spann, proceeding pro se, has appealed from the August 28, 2015, Opinion and Order of the Jefferson Circuit Court dismissing her complaint against Wells Fargo Bank, N.A.; granting Lerner, Sampson & Rothfuss's (LSR) motion for summary judgment and dismissing her claims against LSR; and denying her motion for summary judgment as moot. Finding no error, we affirm.
On November 4, 2014, Spann filed a pro se complaint in Jefferson Circuit Court in relation to a foreclosure action that had been filed and litigated to conclusion in a separate division of Jefferson Circuit Court. As defendants, she named Wells Fargo, the bank that had been assigned Spann's mortgage on the foreclosed property, and LSR, the law firm representing Wells Fargo in the foreclosure action. She alleged that the foreclosure judgment in the separate division was void due to fraud and lack of subject matter jurisdiction. In the present suit, Spann sought $429,427.41 in damages against the named defendants.
We have reviewed the record and the parties' respective briefs. Finding no error in the circuit court's legal analysis, we shall adopt the August 28, 2015, Opinion and Order as our opinion:
This matter is before the Court on numerous Motions filed by the parties. The Court has reviewed the record and the matter now stands submitted.
FACTS
The Plaintiff, Coleen M. Spann, filed this action in an effort to challenge a foreclosure action in Division Ten of Jefferson Circuit Court, case number 13-CI-401114. That matter was resolved against Spann and a Judgment and Order of Sale was entered against Spann on August 13, 2013. The foreclosed property was sold at a Commissioner's Sale on April 29, 2014 and the Order Confirming the Sale was entered on June 30, 2014. Spann never contested the foreclosure action while it was
pending in Division Ten and she never appealed the Judgment and Order of Sale. She now alleges fraud, newly discovered evidence, and numerous other claims of alleged wrong-doing by the Defendants in this action.
The Defendants, Wells Fargo Bank, N.A. (the plaintiff in the foreclosure action) has filed a Motion to dismiss Spann's Complaint and Lerner, Sampson & Rothfuss (counsel for Wells Fargo in the foreclosure action) filed a Motion for summary judgment against Spann. Spann also seeks summary judgment and wants Lerner, Sampson & Rothfuss's Answer dismissed.
OPINION
Wells Fargo's Motion to dismiss.
["]Under CR 12.02 a court should not dismiss for failure to state a claim unless the pleading party appears not to be entitled to relief under any state of facts which could be proved in support of his claim." Pari-Mutuel Clerks' Union v. Kentucky Jockey Club, 551 S.W.2d 801 (Ky. 1977) and Weller v. McCauley, 383 S.W.2d 356, 357 (Ky. 1964). When considering the motion, the allegations contained in the complaint are to be treated as true and must be construed in a light most favorable to the plaintiff. Gall v. Scroggy, 725 S.W.2d 867 (Ky. App. 1987).
Spann alleges that the foreclosure judgment is void and that she should be relieved from the consequences of it. She alleges that Wells Fargo presented falsified evidence and that Wells Fargo and/or Lerner, Sampson & Rothfuss improperly sued "as if in the name of the original creditor." She further argues that the judgment is void due to a lack of subject matter jurisdiction because there was no fact witness. Finally, Spann seeks to bring claims against Wells Fargo for "constructive fraud, misrepresentation, breach of trust and dishonest service to the public, plus a like amount for aggravation, inconvenience, defamation, and intentional affliction (sic) of emotional duress (sic)." She has cited CR 59.05
and the federal counterpart to CR 60.02 as the bases for her demands and allegations.
Any motion to alter, amend, or vacate pursuant to CR 59.05 must be "served [not] later than 10 days after the entry of the final judgment." Here, the Judgment and Order of sale was entered on August 13, 2013. Therefore, Spann was required to serve her motion to set aside the Judgment no later than August 24, 2013. In addition, such motion must be filed in the same court where the objected-to judgment was entered. The same is true of a motion under CR 60.02. This Court does not have jurisdiction to vacate the judgment of a court of co-equal jurisdiction. Pursuant to KRS 23A.010, circuit courts in Kentucky have general jurisdiction over "all justiciable causes not exclusively vested in some other court." Only an appellate court has authority and jurisdiction to vacate or void a circuit court judgment.
Under KRS 22A.020, ". . . an appeal may be taken as a matter of right to the Court of Appeals from any conviction, final judgment, order, or decree in any case in Circuit Court . . . ." That was Spann's recourse for an allegedly void judgment. She was required to appeal the foreclosure judgment to the Kentucky Court of Appeals if she wished to challenge it. In the alternative, she could have participated in the litigation and argued her claims of lack of subject matter jurisdiction, fraud, and all her other "defenses" to the foreclosure. Kentucky's CR 12.02 requires that "Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim shall be asserted in the responsive pleading . . . ." Spann never presented any defense of any type in the foreclosure action. This Court finds that she has waived any defense she may have had to the foreclosure and may not now attempt a collateral attack on the foreclosure judgment. Spann may not now "challenge a judgment on bases which could have been brought on direct appeal. See Goldsmith, 297 S.W.3d at 903; Brozowski v. Johnson, 179 S.W.3d 261, 263 (Ky. App. 2005) ("[T]he purpose of CR 60.02 is to bring before a court errors which (1) had not been put into issue or passed on, and (2) were
unknown and could not have been known to the moving party by the exercise of reasonable diligence and in time to have been otherwise presented to the court." (citation omitted))." Edwards v. Headcount Management., 421 S.W.3d 403, 406 (Ky. App. 2014).
The Court will grant Wells Fargo's Motion to dismiss.
Lerner , Sampson & Rothfuss's Motion for summary judgment.
The well-settled law in Kentucky regarding motions for summary judgment begins with the principle that "the record must be viewed in the light most favorable to the party opposing the motion, and all doubts are to be resolved in that party's favor." Steelvest Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991). With that foundation set, summary judgment "is only proper where the movant shows that the adverse party could not prevail under any circumstances." Id. Even if a trial court believes the party opposing the motion for summary may not succeed at trial, "it should not render a summary judgment if there is any issue of material fact." Id. This is because it is the trial judge's duty to examine the evidence, "not to decide any issues of fact, but to discover if a real issue exists." Id. "The party opposing summary judgment cannot rely on their own claims or arguments without significant evidence in order to prevent a summary judgment." Wymer v. JH Properties, Inc., 50 S.W.3d 195, 199 (Ky. 2001). A general denial is insufficient to avoid a properly supported motion for summary judgment. Smith v. Hilliard, 408 S.W.2d 440, 442 (Ky. 1966).
Among other claims, Spann alleges that Division Ten of Jefferson [Circuit] Court did not have subject matter jurisdiction. This allegation is completely without merit. Subject matter jurisdiction is a court's "power to hear and rule on a particular type of controversy." Nordike v. Nordike, 231 S.W.3d 733 (Ky. 2007). As noted above, Kentucky circuit courts are courts of general jurisdiction to hear "all justiciable causes not
exclusively vested in some other court." KRS 23A.010. Foreclosure actions are no exception. See Cornett v. Combs, 265 S.W.2d 482 (Ky. 1954) (noting that it was "beyond any doubt" that the circuit court had subject matter jurisdiction over foreclosure proceedings.)[.]
Spann's fraud claims are equally without merit and not properly pled. All fraud claims must be pled with specificity, pursuant to CR 9.02. Spann has offered absolutely no details regarding her fraud allegations. Her claims are only general and she has failed to offer even a shred of evidence to support her allegations. It simply is insufficient to allege wrong-doing and provide not one fact to support such an allegation.
The Court finds that Spann's allegations against Lerner, Sampson & Rothfuss have no basis or support. She has not alleged any facts that could support her claims. Summary judgment is appropriate. Further, in light of the Court's rulings on the Motion to dismiss and the Motion for summary judgment, Spann's Motion for summary judgment is moot and will be denied.
For the foregoing reasons, the August 28, 2015, Opinion and Order of the Jefferson Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Coleen Michelle Spann, pro se
Louisville, Kentucky BRIEF FOR APPELLEE, WELLS
FARGO BANK, N.A.: Christy A. Ames
Katherine A. Bell
Bethany A. Breetz
Louisville, Kentucky