Carmen Holliday v. John Holliday

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:09-cv-01449-AW Copies to all parties and the district court/agency. [999082765]. Mailed to: Hugh H. Cuthrell, III, John R. Holliday,. [12-2339]

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UNPUBLISHED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:

Before GREGORY, DUNCAN, and WYNN, Circuit Judges.

April 9, 2013

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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Carmen
John

Holliday

(“Mr.

(“Cambridge”);
Countrywide
Hugh

H.

Holliday

BAC

Home

intentional

Holliday”)

Holliday”);
Home

Loans

Cuthrell,

(collectively,

(“Ms.

Loans

Cambridge

and

“Defendants”),

misrepresentation

Home

Servicing,

Servicing,

III;

filed

LP;

U.S.

various

raising
by

LP

suit

against

Capital,

Inc.

(“BAC”),

f/k/a

Recordings,

Inc.;

John

claims

Doe
for

entities
and

negligence;

concealment;

fraud

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

Ms.

ultimately

denied

relief

on

each

claim.

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.
notice

of

appeal

requirement.”

in

Bowles

a
v.

“[T]he timely filing of a

civil

case

is

Russell,

551

U.S.

a

jurisdictional

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
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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

review

district

were

effective

court’s

to

permit

interlocutory

appellate

rulings.

See

the

Tribe

Miami

of

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
summary

review

judgment,

reasonable

de

novo

viewing

inferences

in

the
the

the

district
evidence

light
4

most

court’s
and

grant

drawing

favorable

to

of
all
the

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non-moving party.
639

F.3d

111,

appropriate

“if

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See PBM Prods., LLC v. Mead Johnson & Co.,

119
the

(4th

Cir.

movant

2011).

shows

Summary

that

there

judgment

is

no

is

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

factors

to

Ass’n v.

Murphy

standard

consider

in

Farms,

for

motion

reviewing

Inc.,

326

for

such

F.3d

leave

to

motion);

505,

514-15

amend
Am.
(4th

and

Canoe
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.
initio.”

A forged deed, on the other hand, is void ab

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,
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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
Servs.,

quotation

Inc.

v.

marks

omitted);

Levenson,

657

see

A.2d

G.E.

1170,

Capital

1172

(Md.

Mortg.
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.
Ms.

Holliday

provides

no

Hill, 936 A.2d at 362.
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.
rights

in

satisfied

the
the

mortgage
Hollidays’

as

the

assignee

undisputedly

of

valid

BAC derived its
Cambridge,
prior

which

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

Thomas v. Nadel, 48 A.3d 276 (Md. 2012).

grounds

recognized

by

Because Ms. Holliday’s

underlying argument that equitable subrogation does not apply
due to the void deed of trust is unavailing, we conclude she

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demonstrate

error

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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).
be

“Judgment as a matter of law is proper only if there can

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).
to

the

negligence

claim,

Ms.

Holliday

argues

With regard

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

insufficient

evidence

compensable damages.

evidence
to

prove

of

a

that

duty
the

and

breach

but

breach

caused

any

See Chi. Title Ins. Co. v. Allfirst Bank,

905 A.2d 366, 378 (Md. 2006) (elements of negligence).
Ms.

Holliday

district

does

court’s

not

address

ruling,

we

the

dispositive

conclude
7

that

basis

she

has

Because
for

the

waived

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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.
558,

See Petry v. Wells Fargo Bank, N.A., 597 F. Supp. 2d

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.
improperly

Holliday

prohibited

also
her

argues

from

that

introducing

the

district

evidence

court

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
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Thus, any error on this basis would not entitle her to

relief.
Turning to Ms. Holliday’s remaining arguments, we have
reviewed

the

record

reversible error.
judgment.
legal
before

and

conclude

that

she

establishes

no

Accordingly, we affirm the district court’s

We dispense with oral argument because the facts and

contentions
this

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.

AFFIRMED

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