Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

EverBank v. Marini

Supreme Court of Vermont

October 16, 2015

EverBank, Successor by Assignment to Bank of America, N.A.
v.
Gary Marini and Caroline Marini

Page 190

          On Appeal from Superior Court, Addison Unit, Civil Division. Robert A. Mello, J.

          Steven J. Kantor of Doremus Kantor & Zullo, Burlington, and Richard E. Briansky of McCarter & English LLP, Boston, Massachusetts, for Plaintiff-Appellant.

          Lisa Chalidze, Fair Haven, for Defendant-Appellee Caroline Marini.

          Gary P. Marini, Defendant-Appellee, Pro se, Middlebury.

         Present: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

          OPINION

Page 191

          Eaton, J.

          [¶1] This appeal stems from a decision of the Addison Superior Court, Civil Division, granting summary judgment in favor of defendant Caroline Marini on plaintiff EverBank's complaint for foreclosure on a mortgage that Caroline signed in 2009 together with her co-defendant and then-husband Gary Marini.[1] In ruling on cross-motions for summary judgment, following a hearing, the trial court concluded that Caroline was entitled to judgment as a matter of law on EverBank's foreclosure complaint because the undisputed material facts established that Caroline signed the mortgage under the threat of physical violence from Gary and thus the mortgage was void as to her. The trial court also concluded that regardless of whether the mortgage was void as to Caroline, EverBank was not a bona fide purchaser. EverBank subsequently moved to alter or amend the judgment, pursuant to Vermont Rule of Civil Procedure 59(e), on the ground that the grant of summary judgment as to Caroline unjustly enriched her. The trial court denied the motion, explaining that EverBank had not raised the issue of unjust enrichment in response to Caroline's cross-motion for summary judgment. EverBank appeals both decisions. We reverse the decision granting summary judgment in favor of Caroline on the issue of whether the mortgage is void, and direct the trial court to enter judgment for EverBank on that issue. We remand for trial the issues of whether the mortgage is voidable and, if so, whether it is enforceable because it was ratified by Caroline, but affirm the trial court's decision that the bona-fide-purchaser doctrine is not available to EverBank. Further, although we conclude that the trial court did not abuse its discretion in denying EverBank's Rule 59(e) motion, as a result of vacating the underlying judgment, we conclude that the matter is no longer germane.

          [¶2] The record developed before the civil division reveals the following facts. In June 2005, Caroline and Gary Marini purchased a family home in the Town of Middlebury. Several years later, in early 2009, Gary began contemplating borrowing money against the Middlebury home. Caroline, however, believed that borrowing more money against their home was " financially unhealthy" for their family, and opposed the idea.

          [¶3] Several months later, in early-March 2009, Caroline became aware that Gary had been communicating with Quicken Loans Inc. about the possibility of additional loans. Caroline contacted the person at Quicken with whom Gary had been communicating and informed him that their " debt to income ratio was impossible and that another loan was not in [her] best interest." The Marinis did not secure a loan with Quicken.

          [¶4] Around the same time, Caroline and Gary spoke with an attorney about the possibility of debt restructuring. Gary, however, was " adamantly opposed" to the idea of bankruptcy, and following the meeting with the attorney, " was highly emotional and upset," and " expressed thoughts of suicide repeatedly over the following days and weeks." At some point thereafter, Gary told Caroline that he would mortgage the family home " whether

Page 192

[she] liked it or not," and regardless of whether she agreed.

          [¶5] Shortly thereafter, in mid-March 2009, Gary again sought to apply for an additional loan, this time through LendingTree Loans. When Caroline found out that Gary was once again attempting to secure a loan against the family home, she contacted LendingTree and informed a loan officer there that she did not want the loan, that she and Gary were in marital counseling, and that the mortgage was " a very bad thing for [them]." The LendingTree loan officer advised Caroline not to sign the mortgage documents, and stated that she would stop the process if the mortgage was not in Caroline's best interests. Notwithstanding these initial conversations, the loan officer subsequently informed Caroline that the loan application had already entered underwriting and that she was unable to stop it at that point.

          [¶6] Around April 3, 2009, Gary informed Caroline that a notary would come to the house that weekend to witness her signature on the mortgage documents. Caroline told Gary that she would not sign. On April 5, 2009, the LendingTree notary called the Marini household to confirm the appointment. Caroline answered the call and told the notary that she disagreed with the loan and that she would not sign. The LendingTree notary did not come to the Marini house.

          [¶7] In the evening of April 5, 2009, LendingTree sent Gary an email, informing him that it had " just received confirmation from [its] notary service that [Caroline] has cancelled this transaction. Please advise. Under VT state laws, she would have needed to sign documents as well and she is refusing to at this point." Upon receipt of the email, Gary became " extremely angry." Gary brought Caroline and two of their children, ages eight and nineteen, into the kitchen and made them sit at the kitchen table while he berated Caroline, repeatedly stating that she was not a competent adult, that the children were no longer to consider her an adult, and that he was going to divorce her. Gary then removed a pair of large scissors from the knife drawer and waved them back and forth while repeating that Caroline was incompetent. Caroline was frightened for her and her children's physical safety, and told Gary that she would sign the mortgage documents if he would leave the children alone.

          [¶8] The following evening, a LendingTree notary came to the Marini home to witness Caroline's signature on the mortgage documentation. When the notary asked Caroline if her signature was her free act and deed, she replied, " it is what it is." At some point on that same day, Gary also executed a note payable to the order of " Home Loan Center, Inc., dba LendingTree Loans, a California Corporation" in the principal amount of $311,200.00. The mortgage granted Mortgage Electronic Registration System, Inc. (MERS), as nominee for LendingTree, a security interest in the Marini's Middlebury home and was recorded with the Middlebury town clerk's office on April 15, 2009. Although Caroline signed the mortgage paperwork, she did not sign the note; however, the mortgage names both Caroline and Gary as " borrowers" with LendingTree as the " lender," and MERS acting as the nominee for LendingTree. A portion of these loan proceeds were used to refinance the existing debt on the Marinis' Middlebury home and discharge the underlying mortgage, approximately $40,000 went to paying off some of Gary's Bank of America credit card debt, and another portion stayed with Gary in cash.

          [¶9] Almost immediately after the Marinis signed the loan and mortgage paperwork with LendingTree in April 2009,

Page 193

LendingTree assigned the rights to both instruments to Bank of America, N.A., successor by merger to Countrywide Home Loans, Inc. Around the end of November 2009, Caroline became aware of the assignment, and contacted Bank of America in an attempt to explain that she had " disagreed with the loan" and to " register [her] position that the loan was not what [she] wanted and what they had done was wrong." The representative from Bank of America with whom she spoke informed her that only Gary was listed on the loan documents and therefore the representative could not talk to Caroline about it.

          [¶10] Thereafter, around April or May 2011, the Marinis stopped making monthly payments on the loan and defaulted. In anticipation of the impending foreclosure, MERS assigned the mortgage to Bank of America, which initiated the foreclosure action in the Addison Superior Court, Civil Division on December 3, 2012. On December 31, 2012, Caroline filed a verified answer; Gary did not answer until May 13, 2013. In her verified answer, Caroline asserted the affirmative defense of duress, contending that the mortgage was void as to her because she had " signed the Mortgage Deed under duress, namely, implicit threat by [Gary] of physical harm with a sharp object in the presence of her children." Additionally, Caroline argued that the mortgage was voidable as to her, alleging duress arising from her " desire to protect her children from further exposure to parental disagreement, to protect herself from further humiliation, and continuing verbal pressure to burden the house with further debt." Caroline also filed a counterclaim, alleging that the loan had been " negligently underwritten and secured, directly, proximately and foreseeably causing depletion of [Caroline's] resources" and that her financial woes had been exacerbated by this negligence.

          [¶11] On May 21, 2013, more than five months after Caroline answered, Bank of America moved for summary judgment against Caroline, and judgment for foreclosure by sale.[2] Bank of America's motion for summary judgment did not address Caroline's counterclaim or affirmative defense of duress, nor did it indicate there were any factual disputes regarding Caroline's filings. In early July 2013,[3] Caroline opposed Bank of America's motion and cross-moved for summary judgment in her favor, arguing that she was entitled to judgment as a matter of law because the undisputed material facts showed that she signed the mortgage under the threat of violence and thus it was void as to her. The trial court set the pending motions for hearing on December 6, 2013. During this interval, Bank of America neither filed an opposition to Caroline's cross-motion nor filed a statement of disputed material facts. On November 13, 2013, Bank of America moved to substitute EverBank as a party, as both the mortgage and the note had been assigned to EverBank on July 15, 2013.

          [¶12] On December 6, 2013, the trial court held a hearing on the pending cross-motions for summary judgment, at which counsel for Bank of America, Caroline with

Page 194

her counsel, and Gary appeared. At the start of the hearing, the trial court heard first from counsel for Bank of America, who set forth that the bank was " simply seeking a judgment for foreclosure," noting that it had provided the requisite documentation and that there had been a default and no payments for some time. Counsel for Caroline spoke next, setting forth her position that Caroline signed the mortgage under duress from Gary and thus the mortgage was void as to her. Counsel for Caroline and the trial court both noted that neither Gary nor Bank of America had disputed Caroline's version of the facts or responded to her cross-motion for summary judgment. Counsel for Caroline offered, however, to allow Bank of America additional time to respond to her cross-motion. When the trial court inquired with Gary whether he agreed with Caroline's recitation of the facts, he responded:

Yes. Quite frankly, I was very surprised that the notary accepted it based on the statement of saying " it is what it is." There was clearly no desire to sign that mortgage. And, in all honesty, that was probably the basis of our subsequent divorce over this issue. You know, clearly, she was not a willing signer to this mortgage.

         Upon the trial court inquiring as to whether Gary " forced her to sign" the mortgage documents, the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.