Filed: Aug. 23, 2013
Latest Update: Aug. 23, 2013
Summary: NOT TO BE PUBLISHED OPINION DIXON, Judge. Talitha Wesson, pro se, appeals from a summary judgment and order of sale rendered by the Boone Circuit Court in favor of Appellee, Deutsche Bank National Trust Company. We affirm. On November 30, 2006, Wesson executed a note and mortgage in favor of Premier Mortgage Funding, Inc. (Premier), relating to a condominium unit in Florence, Kentucky. The mortgage identified Mortgage Electronic Registration Systems, Inc. (MERS), as the mortgagee acting a
Summary: NOT TO BE PUBLISHED OPINION DIXON, Judge. Talitha Wesson, pro se, appeals from a summary judgment and order of sale rendered by the Boone Circuit Court in favor of Appellee, Deutsche Bank National Trust Company. We affirm. On November 30, 2006, Wesson executed a note and mortgage in favor of Premier Mortgage Funding, Inc. (Premier), relating to a condominium unit in Florence, Kentucky. The mortgage identified Mortgage Electronic Registration Systems, Inc. (MERS), as the mortgagee acting as..
More
NOT TO BE PUBLISHED
OPINION
DIXON, Judge.
Talitha Wesson, pro se, appeals from a summary judgment and order of sale rendered by the Boone Circuit Court in favor of Appellee, Deutsche Bank National Trust Company. We affirm.
On November 30, 2006, Wesson executed a note and mortgage in favor of Premier Mortgage Funding, Inc. (Premier), relating to a condominium unit in Florence, Kentucky. The mortgage identified Mortgage Electronic Registration Systems, Inc. (MERS), as the mortgagee acting as nominee for the lender, Premier, and its successors and assigns. Premier subsequently assigned the mortgage to Mortgage Lender's Network, USA, Inc., which, in turn, assigned the mortgage to Appellee. Wesson stopped making mortgage payments after April 2010. Due to Wesson's default, Appellee filed a foreclosure proceeding against Wesson in November 2010. Wesson, pro se, asserted that Appellee lacked standing to foreclose because it was not in possession of the original note. Appellee subsequently produced the original note for Wesson's inspection; however, Wesson continued to challenge Appellee's ownership of the note. Wesson filed voluminous memoranda espousing her theories regarding fraudulent business practices relating to her mortgage. In July 2012, Appellee moved for summary judgment. Wesson filed a response and motion to dismiss the complaint with prejudice. The court granted Appellee's motion for summary judgment, and this appeal followed.
Quite simply, the form and content of Wesson's brief falls short of the requirements set forth in Kentucky Rules of Civil Procedure (CR) 76.12. Despite the mandates of CR 76.12(4)(c)(iv)-(v), the brief does not contain a single citation to the record, and there are no references to the record showing how the issues were preserved for appeal.
In Hallis v. Hallis, 328 S.W.3d 694, 696-97 (Ky. App. 2010), this Court explained:
CR 76.12(4)(c)(v) requires that a brief contain:
An `ARGUMENT' conforming to the statement of Points and Authorities, with ample supportive references to the record and citations of authority pertinent to each issue of law and which shall contain at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner.
Compliance with this rule permits a meaningful and efficient review by directing the reviewing court to the most important aspects of the appeal: what facts are important and where they can be found in the record; what legal reasoning supports the argument and where it can be found in jurisprudence; and where in the record the preceding court had an opportunity to correct its own error before the reviewing court considers the error itself.
Wesson cites a wide array of cases, statutes, and Internet sources; however, "we cannot know how that authority applies in h[er] case because [s]he fails utterly to cite to the record and [s]he fails to tell this Court how [s]he preserved h[er] argument before the [circuit] court." Id. at 698. The record on appeal is approximately 1000 pages.1 We are not required to scour the record to find where it might provide support for Wesson's claims. Smith v. Smith, 235 S.W.3d 1, 5 (Ky. App. 2006).
We have wide latitude to determine the proper remedy for a litigant's failure to follow the rules of appellate procedure. Age v. Age, 340 S.W.3d 88, 97 (Ky. App. 2011). "Our options when an appellate advocate fails to abide by the rules are: (1) to ignore the deficiency and proceed with the review; (2) to strike the brief or its offending portions, CR 76.12(8)(a); or (3) to review the issues raised in the brief for manifest injustice only . . . [.]" Hallis, 328 S.W.3d at 696 (citation omitted).
In considering the available options, we are not inclined to simply disregard the significant deficiencies presented in Wesson's brief. See id. Rather than strike the brief, we elect to review the issues for manifest injustice, which occurs if "the error so seriously affected the fairness, integrity, or public reputation of the proceeding as to be shocking or jurisprudentially intolerable." Commonwealth v. Jones, 283 S.W.3d 665, 668 (Ky. 2009) (internal quotation marks and citation omitted).
Aside from numerous unsubstantiated accusations against Appellee's business practices, Wesson asserts that summary judgment was improper because material issues of fact existed as to the validity of the assignments and whether Appellee was the holder of the note with standing to sue. We have reviewed Wesson's claims, and we find no basis for concluding manifest injustice occurred.
Despite Wesson's characterization of the issues, this was simply a mortgage foreclosure case. Appellee presented proof that it owned the note and mortgage and that Wesson had defaulted on her obligation under the note. Although Wesson advanced numerous theories and allegations, she was unable to produce any affirmative evidence to defeat Appellee's motion for summary judgment. "Unsupported allegations are insufficient to create a genuine issue of material fact." de Jong v. Leitchfield Deposit Bank, 254 S.W.3d 817, 825 (Ky. App. 2007).
For the reasons stated herein, the judgment of the Boone Circuit Court is affirmed.
ALL CONCUR.
