Filed: Apr. 09, 2013
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-2339 CARMEN C. HOLLIDAY, Plaintiff – Appellant, v. JOHN R. HOLLIDAY; CAMBRIDGE HOME CAPITAL, LLC; US RECORDINGS, INCORPORATED; HUGH H. CUTHRELL, III; BAC HOME LOANS SERVICING, LP, Defendants – Appellees, and COUNTRYWIDE HOME LOANS, INCORPORATED; JOHN DOE, Entities 1 through 100, all whose true names are unknown, Defendants, v. EASTERN SETTLEMENT CORPORATION, Third Party Defendant. Appeal from the United States District Cour
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-2339 CARMEN C. HOLLIDAY, Plaintiff – Appellant, v. JOHN R. HOLLIDAY; CAMBRIDGE HOME CAPITAL, LLC; US RECORDINGS, INCORPORATED; HUGH H. CUTHRELL, III; BAC HOME LOANS SERVICING, LP, Defendants – Appellees, and COUNTRYWIDE HOME LOANS, INCORPORATED; JOHN DOE, Entities 1 through 100, all whose true names are unknown, Defendants, v. EASTERN SETTLEMENT CORPORATION, Third Party Defendant. Appeal from the United States District Court..
More
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2339
CARMEN C. HOLLIDAY,
Plaintiff – Appellant,
v.
JOHN R. HOLLIDAY; CAMBRIDGE HOME CAPITAL, LLC; US
RECORDINGS, INCORPORATED; HUGH H. CUTHRELL, III; BAC HOME
LOANS SERVICING, LP,
Defendants – Appellees,
and
COUNTRYWIDE HOME LOANS, INCORPORATED; JOHN DOE, Entities 1
through 100, all whose true names are unknown,
Defendants,
v.
EASTERN SETTLEMENT CORPORATION,
Third Party Defendant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge. (8:09-cv-01449-AW)
Submitted: March 29, 2013 Decided: April 9, 2013
Before GREGORY, DUNCAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis Fireison, Patricia H. Ley, FIREISON LAW GROUP, P.A.,
Rockville, Maryland, for Appellant. John R. Holliday, Silver
Spring, Maryland; Bruce Michael Bender, AXELSON, WILLIAMOWSKY,
BENDER & FISHMAN, PC, Rockville, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Carmen Holliday (“Ms. Holliday”) filed suit against
John Holliday (“Mr. Holliday”); Cambridge Home Capital, Inc.
(“Cambridge”); BAC Home Loans Servicing, LP (“BAC”), f/k/a
Countrywide Home Loans Servicing, LP; U.S. Recordings, Inc.;
Hugh H. Cuthrell, III; and various John Doe entities
(collectively, “Defendants”), raising claims for fraud and
intentional misrepresentation by concealment; negligence; and
violations of the Maryland Finder’s Fee Act (“FFA”), Md. Code
Ann., Com. Law §§ 12-801 to 12-809 (West 2012); the Real Estate
Settlement Procedures Act (“RESPA”), 12 U.S.C.A. §§ 2601-2617
(West 2006 & Supp. 2012); and the Truth in Lending Act (“TILA”),
15 U.S.C. §§ 1601-1667f (West 2006 & Supp. 2012). The district
court ultimately denied relief on each claim. Ms. Holliday
appeals, and for the reasons stated below, we affirm.
As a threshold matter, Cambridge asserts that Ms.
Holliday’s notice of appeal was untimely, depriving this court
of jurisdiction over her appeal. “[T]he timely filing of a
notice of appeal in a civil case is a jurisdictional
requirement.” Bowles v. Russell, 551 U.S. 205, 214 (2007).
Parties to a civil action in which the federal government or its
agent is not a party are accorded thirty days after entry of the
district court’s final judgment to file a notice of appeal, Fed.
R. Civ. P. 4(a)(1)(B), unless the district court extends the
3
appeal period pursuant to Fed. R. App. P. 4(a)(5), or reopens
the appeal period pursuant to Fed. R. App. P. 4(a)(6). Because
final judgment was entered on October 1, 2012, Ms. Holliday’s
original and amended notices of appeal, filed October 26 and
October 31, 2012, respectively, were timely. Moreover, these
notices were effective to permit appellate review of the
district court’s interlocutory rulings. See Miami Tribe of
Okla. v. United States, 656 F.3d 1129, 1137 (10th Cir. 2011);
United States v. Pardee,
356 F.2d 982, 982 (4th Cir. 1966) (per
curiam).
In the district court, Ms. Holliday primarily asserted
that the refinance documents, on which Mr. Holliday allegedly
forged her signature, were void ab initio and thus ineffective
to transfer an interest in the Hollidays’ property. On appeal,
this theory is the basis for three of Ms. Holliday’s assignments
of error: that the district court erred in 1) granting
declaratory relief on summary judgment to BAC on the basis of
equitable subrogation, 2) denying her motion to set aside the
declaratory judgment, and 3) denying her motion for leave to
file an amended complaint asserting a claim for declaratory
relief.
We review de novo the district court’s grant of
summary judgment, viewing the evidence and drawing all
reasonable inferences in the light most favorable to the
4
non-moving party. See PBM Prods., LLC v. Mead Johnson & Co.,
639 F.3d 111, 119 (4th Cir. 2011). Summary judgment is
appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). We review
for abuse of discretion the district court’s denial of motions
to amend the complaint and to set aside an interlocutory order.
See Nourison Rug Corp. v. Parvizian,
535 F.3d 295, 298 (4th Cir.
2008) (providing standard for motion for leave to amend and
factors to consider in reviewing such motion); Am. Canoe
Ass’n v. Murphy Farms, Inc.,
326 F.3d 505, 514-15 (4th Cir.
2003) (reconsideration of interlocutory order).
“A deed obtained through fraud, deceit or trickery is
voidable as between the parties thereto, but not as to a bona
fide purchaser. A forged deed, on the other hand, is void ab
initio.” Harding v. Ja Laur Corp., 315 A.2d 132, 135 (Md. Ct.
App. 1974); see Scotch Bonnett Realty Corp. v. Matthews,
11 A.3d
801, 808-10 (Md. 2011). Thus, “‘[a] forger, having no title,
can pass none to his vendee,’” and “‘there can be no bona fide
holder of title under a forged deed.’” Matthews, 11 A.3d at 804
(quoting Harding, 315 A.2d at 316).
However, “[s]ubrogation . . . arises by operation of
law when there is a debt or obligation owed by one person which
another person, who is neither a volunteer nor an intermeddler,
5
pays or discharges under such circumstances as in equity entitle
him to reimbursement to prevent unjust enrichment.” Hill v.
Cross Country Settlements, LLC, 936 A.2d 343, 361 (Md. 2007)
(internal quotation marks omitted); see G.E. Capital Mortg.
Servs., Inc. v. Levenson,
657 A.2d 1170, 1172 (Md. 1995).
Subrogation is an equitable remedy that permits the party who
paid the debt to step into the shoes of the original obligee and
assert his rights on the obligation. Hill, 936 A.2d at 362.
Ms. Holliday provides no authority indicating that
equitable subrogation is dependent upon the subrogee’s status as
a bona fide purchaser, and we have found none. Nor did Ms.
Holliday provide any evidence to indicate that BAC acted in bad
faith or with knowledge of the alleged fraud. BAC derived its
rights in the mortgage as the assignee of Cambridge, which
satisfied the Hollidays’ undisputedly valid prior mortgage.
Thus, we conclude the district court properly subrogated BAC to
the prior mortgage, notwithstanding the alleged forgery. See
Bierman v. Hunter, 988 A.2d 530, 543-44 (Md. Ct. App. 2010)
(citing Serial Bldg., Loan & Savs. Inst. v. Ehrhardt,
124 A. 56
(N.J. Ch. 1924)), abrogation on other grounds recognized by
Thomas v. Nadel,
48 A.3d 276 (Md. 2012). Because Ms. Holliday’s
underlying argument that equitable subrogation does not apply
due to the void deed of trust is unavailing, we conclude she
6
fails to demonstrate error in the district court’s grant of
declaratory relief or denial of leave to amend on this basis.
Ms. Holliday next argues that the district court erred
in granting judgment as a matter of law on her claims for
fraudulent misrepresentation and concealment or nondisclosure,
negligence, and violation of the FFA. We review de novo the
district court’s grant of a motion for judgment as a matter of
law, viewing the evidence and drawing all reasonable inferences
in the light most favorable to the opposing party. A Helping
Hand, LLC v. Baltimore County, Md., 515 F.3d 356, 365 (4th Cir.
2008). “Judgment as a matter of law is proper only if there can
be but one reasonable conclusion as to the verdict.”
Ocheltree v. Scollon Prods., Inc.,
335 F.3d 325, 338 (4th Cir.
2003) (en banc) (internal quotation marks omitted). With regard
to the negligence claim, Ms. Holliday argues only that she
presented sufficient evidence to establish Cambridge’s duty and
breach of that duty. However, the district court granted
judgment as a matter of law after concluding that Ms. Holliday
established sufficient evidence of a duty and breach but
insufficient evidence to prove that the breach caused any
compensable damages. See Chi. Title Ins. Co. v. Allfirst Bank,
905 A.2d 366, 378 (Md. 2006) (elements of negligence). Because
Ms. Holliday does not address the dispositive basis for the
district court’s ruling, we conclude that she has waived
7
appellate review of this issue. See Canady v. Crestar Mortg.
Corp., 109 F.3d 969, 973-74 (4th Cir. 1997) (indicating that
arguments not raised in appellate brief are waived). We also
conclude that the district court properly directed verdict after
finding the evidence adduced at trial insufficient to permit a
jury to find in Ms. Holliday’s favor as to her FFA and fraud
claims. See Petry v. Wells Fargo Bank, N.A.,
597 F. Supp. 2d
558, 562-63 (D. Md. 2009) (addressing status as “mortgage
broker” under FFA); Gourdine v. Crews,
955 A.2d 769, 791 (Md.
2008) (elements of fraudulent misrepresentation); Green v. H & R
Block, Inc.,
735 A.2d 1039, 1059 (Md. 1999) (fraudulent
concealment); Fegeas v. Sherrill,
147 A.2d 223, 225 (Md. 1958)
(fraudulent concealment and nondisclosure); First Union Nat’l
Bank v. Steele Software Sys. Corp.,
838 A.2d 404, 433 (Md. Ct.
App. 2003) (recognizing that fraud requires proof of “deliberate
intent to deceive”).
Ms. Holliday also argues that the district court
improperly prohibited her from introducing evidence regarding
the alleged TILA and RESPA violations as evidence of negligence.
However, her informal brief and the record indicate that she
adduced evidence on these issues during trial, and she points to
no specific evidence that was improperly excluded. She also
provides no basis to conclude that viewing these violations as
negligent conduct would have cured the defects in her negligence
8
claim. Thus, any error on this basis would not entitle her to
relief.
Turning to Ms. Holliday’s remaining arguments, we have
reviewed the record and conclude that she establishes no
reversible error. Accordingly, we affirm the district court’s
judgment. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
9
