Everbank v. Marini

134 A.3d 189 (2015)

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Nature of the Case

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Facts

In June 2005, Caroline (W) and Gary Marini (H) purchased a family home. In early 2009, H began contemplating borrowing money against the home. W believed that borrowing more money against their home was “financially unhealthy” for their family, and opposed the idea. Eventually, H told W that he would mortgage the family home “whether she liked it or not,” and regardless of whether she agreed. When W found out that H was once again attempting to secure a loan, she contacted LendingTree and informed a loan officer there that she did not want the loan. The LendingTree loan officer advised W not to sign the mortgage documents. Around April 3, 2009, H informed W that a notary would come to the house that weekend to witness her signature on the mortgage documents. W told H that she would not sign. On April 5, 2009, the LendingTree notary called to confirm the appointment. W 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. LendingTree sent H an email and stated that W would have to sign the documents as well. H brought W and two of their children, ages eight and nineteen, into the kitchen and made them sit at the kitchen table while he berated W, 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. H then removed a pair of large scissors from the knife drawer and waved them back and forth while repeating that W was incompetent. W was frightened for her and her children's physical safety and told H that she would sign the mortgage documents if he would leave the children alone. A LendingTree notary came and asked if W's signature was her free act and deed, she replied, “it is what it is.” H 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 home and was recorded with the town clerk's office on April 15, 2009. W did not sign the note; however, the mortgage names both H and W as “borrowers” with LendingTree as the “lender,” and MERS acting as the nominee for LendingTree. 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, W 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 H was listed on the loan documents and therefore the representative could not talk to W about it. They defaulted around May 2011. W 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 of physical harm with a sharp object in the presence of her children.” P moved for summary judgment and judgment for foreclosure by sale. W 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. Bank of America moved to substitute P as a party, as both the mortgage and the note had been assigned to P on July 15, 2013. Counsel for W and the trial court both noted that neither H nor P had disputed W's version of the facts or responded to her cross-motion for summary judgment. H admitted to the court that W was not a willing signer to the mortgage. Upon the trial court inquiring as to whether H “forced her to sign” the mortgage documents, the following exchange occurred: I guess I did from that standpoint because I was very angry. I didn't physically put her hand on the paper, but I was very angry. The trial court concluded that the undisputed facts showed that W had been subjected to duress such that the mortgage was void and was therefore entitled to judgment as a matter of law. P appealed.