Reverse Mortgage Solutions, Inc. v. Goldwyn

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NOT DESIGNATED FOR PUBLICATION

No. 117,449

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

REVERSE MORTGAGE SOLUTIONS, INC.,
Appellee,

v.

PAULA K. GOLDWYN
aka PAULA JOAN ENLOW, et al.,
Appellant.


MEMORANDUM OPINION

Appeal from Riley District Court; JOHN F. BOSCH, judge. Opinion filed December 29, 2017.
Affirmed.

Paula K. Goldwyn, appellant pro se.

Mark M. Haddad and Beverly M. Weber, of Martin Leigh PC, of Kansas City, Missouri, for
appellee.

Before ARNOLD-BURGER, C.J., LEBEN and POWELL, JJ.

PER CURIAM: Paula K. Goldwyn aka Paula Joan Enloe appeals the district court's
grant of summary judgment in favor of Reverse Mortgage Solutions, Inc. (RMS). RMS
initiated foreclosure proceedings on Goldwyn's property pursuant to the terms of a
reverse mortgage previously entered into between Urban Financial Group, Inc. (UFG)
and Goldwyn's mother, the original owner of the property. Goldwyn, who appeals pro se,
raises numerous arguments on appeal, among them being that RMS lacked standing to
enforce the terms of the reverse mortgage, that RMS was barred from bringing suit due to
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its alleged failure to follow the relevant mortgage servicing regulations, and that the
district court erred in its handling of the case below. After a thorough review of the
record, we find no error and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On October 1, 2007, Bernice A. Enlow, Goldwyn's mother, executed a loan
agreement with UFG and the United States Department of Housing and Urban
Development (HUD). At the time she executed the agreement, Enlow was the sole owner
and in possession of her residence located in Manhattan, Kansas. Under the terms of the
agreement, UFG loaned Enlow the principal sum of $262,500, and in exchange, Enlow
agreed to repay all loan advances made to her, plus interest to be calculated as provided
in the note. To secure this note, Enlow granted a real estate mortgage to UFG, which was
duly acknowledged and filed. Collectively, the loan agreement, note, and mortgage make
up what is commonly referred to as a reverse mortgage.

Black's Law Dictionary 1165 (10th ed. 2014) defines a "reverse annuity
mortgage"—also referred to as a "reverse mortgage"—as "[a] mortgage in which the
lender disburses money over a long period to provide regular income to the ([usually]
elderly) borrower, and in which the loan is repaid in a lump sum when the borrower dies
or when the property is sold." Because the use of reverse mortgages is relatively new, no
Kansas court has yet provided a definition of a reverse mortgage. However, in Summers
v. Financial Freedom Acquisition LLC, 807 F.3d 351, 354 (1st Cir. 2015), the First
Circuit Court of Appeals provided the following definition: "A reverse mortgage is a
loan or line of credit available to a person over the age of 62 who has equity in real estate,
typically the person's home. The loan provides the borrower with cash . . . and is secured
by the borrower's equity in the real estate. There are no monthly payments; instead, the
loan is due and payable in full when the borrower dies, sells the home, or no longer uses
the home as [his or] her principal residence."
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On August 2, 2012, Enlow passed away. Upon the death of her mother, Goldwyn
became the sole owner of the property by operation of a transfer on death deed duly
executed, filed, and recorded. On January 24, 2013, a probate action was commenced in
the district court; to date, the administrator of Enlow's estate has not disaffirmed the
reverse mortgage or any of its components. In mid-2013 the reverse mortgage was
assigned to RMS.

The terms of the reverse mortgage provide that the mortgagee may require an
immediate payment in full of all sums secured by the mortgage if the borrower, in this
case Enlow, dies and the property is not the principal residence of at least one of the
surviving borrowers. As Enlow was the only resident of the property and the only
borrower, after her death the loan became due and owing, prompting RMS to file a
mortgage foreclosure action on September 18, 2013, seeking an in rem judgment against
the property. A copy of the note was properly attached to the petition, and RMS is in
possession of the original note and mortgage as the owner and holder.

Goldwyn's response to RMS's foreclosure petition was due on October 15, 2013.
However, Goldwyn obtained a 14-day clerk's extension of time to file her answer,
extending the time to October 29, 2013. The day before her answer was due, Goldwyn
filed a motion for an extension of time, requesting an additional 30 days to respond to the
petition. Goldwyn filed her motion pro se, and the motion did not include any reasons
justifying the additional time. Nevertheless, the district court granted Goldwyn's motion
and gave her until November 28, 2013, to file an answer.

This deadline came and went. On December 2, 2013, Goldwyn sought a second
30-day extension to respond to the petition. In her pro se motion, Goldwyn indicated she
needed the additional time as a result of "tremendous pressures of a variety of stressful
circumstances taking place in her life." The district court granted this extension and gave
Goldwyn until January 2, 2014, to respond.
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On the day her answer was due, Goldwyn requested yet another extension of time
to file her answer because of "tremendous pressures of a variety of stressful
circumstances taking place in her life." This time, the district court denied her request on
January 13, 2014. On January 28, 2014, Goldwyn filed a pro se motion to alter or amend
the denial of her third extension of time to file an answer. RMS opposed this motion, and
the district court ultimately denied it on April 24, 2014. Goldwyn filed an untimely notice
of appeal after this denial, but this matter is not at issue in this appeal.

On August 15, 2014, RMS filed a motion for leave to amend its petition to correct
the principal balance of the mortgage alleged in the petition. Three days later the district
court granted the motion. At the time of the amendment, Goldwyn was in default for
failing to answer or otherwise respond to RMS's original petition. On August 26, 2014,
Goldwyn obtained counsel, and he filed an entry of appearance on her behalf.

Largely because of Goldwyn's failure to file an answer, on October 27, 2014, the
district court entered a default judgment in favor of RMS. On December 1, 2014,
Goldwyn, through her attorney, filed an objection to the sheriff's sale and moved to set
aside the default judgment. The district court entered an order of sale, and a sheriff's sale
occurred on March 24, 2015. On April 1, 2015, the district court denied Goldwyn's
objection to the sheriff's sale and motion to set aside the default judgment. Goldwyn
timely filed a notice of appeal of the court's judgment.

On June 5, 2015, RMS filed its motion to confirm the sheriff's sale, and Goldwyn
objected. On November 23, 2015, the district court held a hearing on this motion. At the
hearing, RMS and Goldwyn informed the district court they had entered into an
agreement in which Goldwyn would dismiss her notice of appeal and withdraw her
objection to the motion to confirm the sheriff's sale and, in exchange, RMS would agree
to set aside the default judgment and sheriff's sale and allow Goldwyn to file an answer to
its amended petition. Accordingly, the district court dismissed Goldwyn's appeal, set
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aside the default judgment and sheriff's sale, and ordered Goldwyn to file her answer to
RMS's amended petition no later than December 16, 2015. This time, Goldwyn timely
filed an answer to the amended petition.

On September 1, 2016, RMS filed a motion for summary judgment. However, on
October 6, 2016, Goldwyn's counsel filed a motion to withdraw from further
representation of Goldwyn, arguing that Goldwyn had failed to fulfill material obligations
owed to him. On November 1, 2016, acting pro se, Goldwyn filed her objection to the
motion to withdraw, admitting she had received a copy of the summary judgment motion
from her counsel on September 22, 2016. On November 8, 2016, the district court
granted Goldwyn's counsel's motion. The next day, the district court granted RMS's
motion for summary judgment and entered an in rem judgment against the property,
holding that while Goldwyn had filed an answer to the amended petition, she had failed
to timely file a response to RMS's motion for summary judgment and was, therefore, in
default.

Goldwyn timely appeals.

On appeal, Goldwyn makes numerous arguments which, for purposes of clarity,
we have consolidated into the following seven issues listed chronologically in accordance
with the case's procedural posture: (1) RMS lacked the standing to bring the foreclosure
action; (2) RMS's alleged noncompliance with federal foreclosure regulations barred its
lawsuit; (3) the district court erred by denying Goldwyn's third request for an extension
of time to file her answer to the original petition; (4) the district court improperly allowed
RMS to amend its petition; (5) the district court erred by granting the first default
judgment; (6) the district court erred by granting Goldwyn's attorney's motion to
withdraw; and (7) the district court erred by granting summary judgment in favor of
RMS. We address each argument in turn.

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I. DOES RMS HAVE STANDING TO BRING THIS FORECLOSURE ACTION?

Goldwyn first argues that RMS does not have standing to bring this foreclosure
action. Specifically, she argues that RMS failed to comply with 24 C.F.R. §
206.125(d)(1) (2015), which requires a foreclosure action to be brought within six
months of the mortgagor's death, thus denying it standing to bring this foreclosure suit. In
response, RMS argues that noncompliance with 24 C.F.R. § 206.125 is an affirmative
defense, not an issue of standing, which should have been raised in Goldwyn's answer
and that her failure to do so below waives this issue on appeal. As we will explain,
whether RMS failed to timely seek foreclosure is irrelevant to the question of standing.

"Standing is a jurisdictional question whereby courts determine 'whether the plaintiff has
alleged such a personal stake in the outcome of a controversy as to warrant invocation of
jurisdiction and to justify exercise of the court's remedial powers on his or her behalf.' A
party must have a sufficient stake in the outcome of an otherwise justiciable controversy
in order to obtain judicial resolution of that controversy. [Citations omitted.]" Board of
Sumner County Comm'rs v. Bremby, 286 Kan. 745, 750-51, 189 P.3d 494 (2008).

To have standing, a party "must demonstrate that he or she suffered a cognizable
injury and that there is a causal connection between the injury and the challenged
conduct." 286 Kan. at 761. "[I]f a person does not have standing to challenge an action or
to request a particular type of relief, then 'there is no justiciable case or controversy' and
the suit must be dismissed." 286 Kan. at 750 (quoting Kansas Bar Ass'n v. Judges of the
Third Judicial Dist., 270 Kan. 489, 490, 14 P.3d 1154 [2000]). Because standing is a
jurisdictional question, it may be raised by the parties or the court at any time and is one
over which we exercise unlimited review. See FV-I, Inc. v. Kallevig, 306 Kan. 204, 211,
392 P.3d 1248 (2017).

In order to establish an injury in a mortgage foreclosing proceeding, RMS must
show that the debt is due and owing. Whether the debt is due and owing is based upon the
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terms of the contract—in this instance, the promissory note governing the reverse
mortgage. See 306 Kan. at 213. Moreover, RMS must demonstrate that it has been
injured by establishing that it is the party entitled to enforce the terms of the promissory
note. See Restatement (Third) of Property (Mortgages) § 5.4(c) (1997) ("A mortgage may
be enforced only by, or in behalf of, a person who is entitled to enforce the obligation the
mortgage secures."). It is the "'holder of a promissory note [who] has standing to enforce
the terms of indebtedness, including the right to foreclose on a mortgage that secures it.'"
306 Kan. at 214 (quoting FV-I, Inc. v. Kallevig, No. 111,235, 2015 WL 717776 [Kan.
App. 2015] [unpublished opinion]).

According to the record, it is undisputed that RMS had possession of both the note
and mortgage at the time it filed the foreclosure action because the note and mortgage
had previously been assigned to it. It is also undisputed that the amounts owed under the
note are due and owing. Goldwyn's mother, Enlow, was the sole owner and occupant of
the real estate and the sole borrower. Under the terms of the note, the loan became due
upon her death. As the holder of both the note and mortgage, RMS is the entity entitled to
enforce the terms of the note, meaning RMS is the party entitled to repayment of the loan.
RMS therefore has standing to bring a foreclosure action on the mortgage which secures
the note. As RMS correctly argues, whether it violated 24 C.F.R. § 206.125(d)(1)—
whether the foreclosure action was timely filed—is immaterial to and separate from the
question of standing.

II. CAN GOLDWYN RAISE THE AFFIRMATIVE DEFENSE THAT RMS ALLEGEDLY
FAILED TO COMPLY WITH 24 C.F.R. § 206.125?

As we have already explained above, RMS's compliance or noncompliance with
the federal regulation is irrelevant to the issue of standing. But in light of our duty to
construe Goldwyn's pleadings liberally, we will also examine whether the regulation bars
RMS's suit in some other way. Goldwyn argues that RMS's failure to comply with 24
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C.F.R. § 206.125(b) and (c)—which required RMS to obtain an appraisal prior to
conducting a foreclosure sale and to allow the mortgagor to sell the property to satisfy the
loan—bars this action. In response, RMS argues that compliance with 24 C.F.R. §
206.125 is an affirmative defense that must be raised in a responsive proceeding or it is
waived and that Goldwyn failed to raise RMS's alleged noncompliance with the
regulation in her answer; therefore, she waived this affirmative defense. RMS also argues
that these subsections do not apply to Goldwyn.

An affirmative defense is "[a] defendant's assertion of facts and arguments that, if
true, will defeat the plaintiff's or prosecution's claim, even if all the allegations in the
complaint are true." Black's Law Dictionary 509. Affirmative defenses must be pled in a
defendant's answer. See K.S.A. 2016 Supp. 60-208(c)(1). "A defendant failing to assert
an affirmative defense waives it. Turon State Bank v. Bozarth, 235 Kan. 786, Syl. ¶ 1,
684 P.2d 419 (1984)." Estate of Belden v. Brown County, 46 Kan. App. 2d 247, 262, 261
P.3d 943 (2011). K.S.A. 2016 Supp. 60-208(c)(1) provides the following general rule for
pleading an affirmative defense:

"Affirmative defenses. (1) In general. In responding to a pleading, a party must
affirmatively state any avoidance or affirmative defense, including:
"(A) Accord and satisfaction;
"(B) arbitration and award;
"(C) assumption of risk;
"(D) contributory negligence or comparative fault;
"(E) duress;
"(F) estoppel;
"(G) failure of consideration;
"(H) fraud, illegality;
"(I) injury by fellow servant;
"(J) laches;
"(K) license;
"(L) payment;
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"(M) release;
"(N) res judicata;
"(O) statute of frauds;
"(P) statute of limitations; and
"(Q) waiver."

Before we can answer whether RMS's alleged noncompliance with 24 C.F.R. §
206.125 constitutes an affirmative defense which Goldwyn should have raised in her
answer, we must interpret K.S.A. 2016 Supp. 60-208(c) as well as examine the nature of
the duty imposed by the federal regulation.

Interpretation of a statute is a question of law over which we exercise unlimited
review. Neighbor v. Westar Energy, Inc., 301 Kan. 916, 918, 349 P.3d 469 (2015). The
most fundamental rule of statutory construction "is that the intent of the legislature
governs if that intent can be ascertained." State ex rel. Schmidt v. City of Wichita, 303
Kan. 650, 659, 367 P.3d 282 (2016). Our duty is first to attempt "to ascertain legislative
intent" through the statutory language enacted, "giving common words their ordinary
meanings." Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 918,
296 P.3d 1106, cert. denied 134 S. Ct. 162 (2013). When a statute is plain and
unambiguous, we are not to speculate "as to the legislative intent behind it and will not
read into the statute something not readily found in it." In re Tax Appeal of Burch, 296
Kan. 713, 722, 294 P.3d 1155 (2013).

In 1988 the Federal Housing Administration (FHA) Reverse Mortgage bill became
law. 12 U.S.C. § 1715z-20 (1988).

"This law provided authority for the [FHA] to launch the Home Equity Conversion
Mortgage ('HECM') Insurance Demonstration, a pilot project that was eventually adopted
by [HUD]. The legislation set guidelines for consumer protection and basic program
requirements, with HUD taking the lead in establishing the main features of the HECM
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program. As a result of this 1988 legislation, most of today's reverse mortgages are made
through HUD, whose FHA arm insures the loan." Schieke, The Advisability of Reverse
Mortgage to Pay for Care Needs, 47-JUN MD. B.J. 26, 29 (2014).

Pursuant to the authority conferred by the United States Congress, HUD
promulgated regulations pertaining to HECM, or reverse mortgages. See 12 U.S.C. §
1715z-20(h)(3); 24 C.F.R. § 206.101 et seq. The regulations relating to the foreclosure of
federally insured reverse mortgages are codified in Title 24, Part 206 (Home Equity
Conversion Mortgage Insurance), Subpart C (Contract Rights and Obligations) of the
Code of Federal Regulations. 24 C.F.R. §§ 206.101-206.146 (2015). The pertinent parts
of 24 C.F.R. § 206.125 state:

"(b) Appraisal. The mortgagee shall obtain an appraisal of the property no later
than 30 days after the mortgagor is notified that the mortgage is due and payable, or no
later than 30 days after the mortgagee becomes aware of the mortgagor's death, or upon
the mortgagor's request in connection with a pending sale. The property shall be
appraised no later than 15 days before a foreclosure sale. The appraisal shall be at the
mortgagor's expense unless the mortgage is due and payable. If the mortgage is due and
payable, the appraisal shall be at the mortgagee's expense but the mortgagee shall have a
right to be reimbursed out of the proceeds of any sale by the mortgagor.

"(c) Sale by mortgagor. Whether or not the mortgage is due and payable, the
mortgagor may sell the property for at least the lesser of the mortgage balance or the
appraised value (determined under § 206.125(b)). If the mortgage is due and payable at
the time the contract for sale is executed, the mortgagor may sell the property for at least
the lesser of the mortgage balance or five percent under the appraised value. The
mortgagee shall satisfy the mortgage of record (and the Secretary will satisfy the second
mortgage required under § 206.27(e) of record) in order to facilitate the sale, provided
that there are no junior liens (except the mortgage to secure payments by the Secretary
under § 206.27(e)) and all the net proceeds from the sale are paid to the mortgagee.

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"(d) Initiation of foreclosure. (1) The mortgagee shall commence foreclosure of
the mortgage within six months of giving notice to the mortgagor that the mortgage is
due and payable, or six months from the date of the mortgagor's death if applicable, or
within such additional time as may be approved by the Secretary."

As to Goldwyn's argument that 24 C.F.R. § 206.125(d)(1) requires a reverse
mortgage foreclosure action to be commenced within a certain period of time,
specifically within six months of the mortgagor's death, the federal regulation appears to
act as a statute of limitations because "'[a] statute of limitations extinguishes the right to
prosecute an accrued cause of action after a period of time.'" Shirley v. Reif, 260 Kan.
514, 517, 920 P.2d 405 (1996) (quoting Harding v. K.C. Wall Products, Inc., 250 Kan.
655, 668, 831 P.2d 958 [1992]).

By the clear language of K.S.A. 2016 Supp. 60-208(c)(1)(P), a statute of
limitations defense is an affirmative defense which must be raised by a defendant in a
responsive pleading or answer. Assuming without deciding that Goldwyn, as a
nonsignatory to the reverse mortgage, is entitled to invoke the protections contained in
HUD's reverse mortgage regulations, Goldwyn was required to raise RMS's alleged
failure to timely foreclose on its reverse mortgage as required by 24 C.F.R. §
206.125(d)(1) in her answer. Goldwyn's failure to do so means she waived this possible
defense to the foreclosure action.

Goldwyn's argument that RMS's failure to comply with 24 C.F.R. § 206.125(b)
and (c) bars its foreclosure action is more problematic because these two requirements do
not neatly fall into the list of affirmative defenses which must be pled under K.S.A. 2016
Supp. 60-208(c). Where a statute's language or text is unclear or ambiguous we may use
canons of construction or legislative history to construe the Legislature's intent. Northern
Natural Gas Co., 296 Kan. at 918. "Dictionary definitions are good sources for the
'ordinary, contemporary, common' meanings of words." Midwest Crane & Rigging, LLC
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v. Kansas Corporation Commission, 306 Kan. 845, 851, 397 P.3d 1205 (2017) (quoting
Walters v. Metro. Educ. Enterprises, Inc., 519 U.S. 202, 207, 117 S. Ct. 660, 136 L. Ed.
2d 644 [1997]).

In giving the language of K.S.A. 2016 Supp. 60-208(c)(1) its ordinary meaning, it
is clear the statute provides a nonexclusive list of affirmative defenses because the statute
uses the word "including" preceding the list. Garner's Dictionary of Legal Usage states:

"[I]ncluding is sometimes misused for namely. But it should not be used to
introduce an exhaustive list, for it implies that the list is only partial. In the words of one
federal court, 'It is hornbook law that the use of the word including indicates that the
specified list . . . is illustrative, not exhaustive.' [Citation omitted.]" Garner's Dictionary
of Legal Usage 439 (3d ed. 2011).

This usage is consistent in other dictionaries. See Black's Law Dictionary 880
("The participle including typically indicates a partial list."); The American Heritage
Dictionary of the English Language 888 (5th ed. 2011) ("1. To contain or take in as a
part, element, or member. 2. To consider as part of or allow into a group or class.").
Applying these definitions to the statute in question, the list of affirmative defenses in
K.S.A. 2016 Supp. 60-208(c)(1) is a partial, nonexclusive list.

Given that Goldwyn's allegation that RMS's alleged failure to appraise the
property before the sale or to allow the mortgagee to sell the property could be included
as an affirmative defense under K.S.A. 2016 Supp. 60-208(c), we turn to other cases
analyzing this question. Unfortunately, there is no Kansas caselaw on point, but courts in
several other jurisdictions have held that noncompliance with HUD regulations is an
affirmative defense.

One of the first courts to acknowledge an affirmative defense of failure to comply
with foreclosure regulations in traditional mortgages was the Illinois Court of Appeals. In
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Bankers Life Co. v. Denton, 120 Ill. App. 3d 576, 578-79, 458 N.E.2d 203 (1983), that
court held:

"It is evident from the language of the servicing regulations that the mortgagee
must comply with these provisions prior to the commencement of a foreclosure
proceeding. Therefore, . . . we believe that the failure to comply with these servicing
regulations which are mandatory and have the force and effect of law can be raised in a
foreclosure proceeding as an affirmative defense.

"While it is true that . . . a pattern of refusal or failure to comply with the
servicing requirements will be cause for withdrawal of a mortgagee's approval to
participate in the federal mortgage insurance program, we do not believe this to be an
adequate remedy for the individual mortgagor. The legislative purpose of the National
Housing Act set forth in 12 U.S.C., Section 1701t, is to assist in providing a decent home
and a suitable living environment for every American family. Thus, the primary
beneficiaries of the act and its implementing regulations are those receiving assistance
through its various housing programs. This would include the defendants as mortgagors
of a H.U.D. insured mortgage.

"Therefore, in order to effectively insure that the interests of the primary
beneficiaries of the H.U.D. mortgage servicing requirements are being protected,
mortgagors must be allowed to raise noncompliance with the servicing requirements as a
defense to a foreclosure action. H.U.D.'s withdrawal of a mortgagee's approval to
participate in the mortgage insurance program after repeated violations of the servicing
requirements is a useless remedy for the individual faced with the immediate problem of
the foreclosure action; an action which could possibly be avoided by either assignment of
the mortgage to H.U.D. or further efforts to arrange a revised payment plan."

Other jurisdictions have followed this path of recognizing a failure to comply with
federal servicing and foreclosure regulations promulgated by HUD relating to traditional
mortgages as an affirmative defense. See Lacy-McKinney v. Taylor, Bean & Whitaker
Mortgage Corp., 937 N.E.2d 853, 864 (Ind. Ct. App. 2010) (holding failure to comply
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with HUD servicing responsibilities can properly be raised as an affirmative defense);
Wells Fargo Home Mortgage, Inc. v. Neal, 398 Md. 705, 727, 922 A.2d 538 (2007)
(holding "a mortgagor may not wield as a sword HUD regulations [but] may assert . . .
regulatory noncompliance as a shield against unauthorized foreclosure actions."); Federal
National Mortgage Ass'n v. Ricks, 372 N.Y.S.2d 485, 497, 83 Misc. 2d 814 (1975)
(holding mortgagor "may interpose as a first defense the failure of [mortgagee] to comply
with the provisions of the HUD Handbook"). Extensive research on this matter has only
uncovered one court that has recognized a failure to comply with a subsection of 24
C.F.R. § 206.125 as an affirmative defense. See Wells Fargo Bank, N.A. v. Schindler, No.
3728 EDA 2015, 2017 WL 1078672, at *7 n.5 (Pa. Super. Ct. 2017) (unpublished
opinion) (holding 24 C.F.R. § 206.125[f] is an affirmative defense that must be raised in
a responsive pleading and failure to do so waived the issue on appeal), reargument
denied May 22, 2017. It appears no court has held conversely―that noncompliance with
24 C.F.R. § 206.125 is not an affirmative defense.

We should note that the context in which these cases were decided typically
involved signatories to the note and mortgage. Because Goldwyn is a nonsignatory—she
became the owner of the property by virtue of a transfer on death deed—Goldwyn enjoys
no privity of contract with either UFG or RMS, and we decline to declare that the
requirements contained in 24 C.F.R. § 206.125 could serve as a defense to a foreclosure
petition under the facts before us. But even if we were to assume such a defense was
available to Goldwyn, given the precedents we have cited, we agree that any defense
based upon noncompliance with 24 C.F.R. § 206.125 must be alleged as an affirmative
defense in a responsive pleading or answer. See Lacy-McKinney, 937 N.E.2d at 864;
Wells Fargo Home Mortg., Inc., 398 Md. At 727; Bankers Life Co., 120 Ill. App. 3d at
578-79; Federal Nat'l Mortg. Ass'n, 372 N.Y.S.2d at 497; Schindler, 2017 WL 1078672,
at *7 n.5. Because Goldwyn never pled noncompliance with 24 C.F.R. § 206.125 in her
answer, she has waived such defense.
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Finally, even if the requirements of 24 C.F.R. § 206.125 were to be classified as
conditions precedent to a party's ability to bring a foreclosure action, Goldwyn's claim
still fails. K.S.A. 2016 Supp. 60-209(c) mandates: "In pleading conditions precedent, it
suffices to allege generally that all conditions precedent have occurred or have been
performed. But when denying that a condition precedent has occurred or been performed,
a party must do so with particularity." Failure to comply with the statute is a waiver of
such a defense. Marr v. Geiger Ready-Mix Co., 209 Kan. 40, 50, 495 P.2d 1399 (1972).
Goldwyn did not allege with particularity in her answer that RMS failed to comply with
any condition precedent. As such, any defense based upon RMS's alleged failure to
comply with 24 C.F.R. § 206.125 has been waived.

III. DID THE DISTRICT COURT ABUSE ITS DISCRETION IN DENYING GOLDWYN'S THIRD
REQUEST FOR AN EXTENSION OF TIME TO FILE HER ANSWER TO THE ORIGINAL
PETITION?

Goldwyn also argues the district court erred in denying her third pro se request for
an extension of time to file her answer to the original petition. Specifically, she argues
that because she is pro se, it was unfair for the district court to fail to warn her when
granting her second extension of time to file her answer to the original petition that it
would be her last extension of time. In response, RMS makes three arguments in
opposition, the third being that this issue is moot because Goldwyn timely answered the
amended petition in accordance with the agreement between RMS and Goldwyn in
exchange for the dismissal of Goldwyn's first notice of appeal. We agree with RMS.

We review the denial of a motion for extension of time for an abuse of discretion.
See In re J.A.H., 285 Kan. 375, 384-85, 172 P.3d 1 (2007). As a general rule, Kansas
courts "do not decide moot questions or render advisory opinions." State v. Montgomery,
295 Kan. 837, 840, 286 P.3d 866 (2012). The mootness doctrine is one of "court policy,
which recognizes that the role of a court is to 'determine real controversies relative to the
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legal rights of persons and properties which are actually involved in the particular case
properly brought before it and to adjudicate those rights in such manner that the
determination will be operative, final, and conclusive.' [Citations omitted.]" Stano v.
Pryor, 52 Kan. App. 2d 679, 682-83, 372 P.3d 427 (2016) (quoting State v. Hilton, 295
Kan. 845, 849, 286 P.3d 871 [2012]). "A justiciable controversy has definite and concrete
issues between the parties and 'adverse legal interests that are immediate, real, and
amenable to conclusive relief.' [Citation omitted.]" Montgomery, 295 Kan. at 840.

On November 23, 2015, RMS and Goldwyn informed the district court they had
entered into an agreement in which Goldwyn would dismiss her first notice of appeal and
withdraw her objection to the motion to confirm the first sheriff's sale; in exchange, RMS
would agree to set aside the journal entry of foreclosure and the sheriff's sale and allow
Goldwyn to file an answer to the amended petition. The district court accepted this
agreement, and Goldwyn timely filed her answer to the amended petition. As a result, it
no longer matters whether Goldwyn should have been given more time to answer RMS's
original petition because the original petition was superseded by the amended one,
rendering the issue moot.

IV. WAS THE PETITION PROPERLY AMENDED, FILED, AND SERVED?

Next, Goldwyn argues that the original petition was not properly amended. She
make two arguments to support her contention. First, Goldwyn argues the district court
abused its discretion in allowing RMS to amend its petition; second, Goldwyn argues that
RMS never filed the amended petition in the district court or properly served a copy upon
her.

17
A. Did the district court abuse its discretion in granting leave to RMS to
amend its petition?

We review the granting of a motion for leave to amend a petition for an abuse of
discretion. See Hoover Equipment Co. v. Smith, 198 Kan. 127, 133, 422 P.2d 914 (1967).
A judicial action constitutes an abuse of discretion if (1) no reasonable person would take
the view adopted by the trial court; (2) the decision is based on an error of law; or (3) the
decision is based on an error of fact. Wiles v. American Family Life Assurance Co., 302
Kan. 66, 74, 350 P.3d 1071 (2015). "One who asserts the trial court has abused its
discretion bears the burden of showing such abuse of discretion." Leeper v. Schroer, Rice,
Bryan & Lykins, P.A., 241 Kan. 241, Syl. ¶ 7, 736 P.2d 882 (1987).

K.S.A. 2016 Supp. 60-215(a)(1) provides that, in certain situations which are not
applicable here, a party may amend its pleading "once as a matter of course." In all other
circumstances, such as here, "a party may amend its pleading only with the opposing
party's written consent, or the court's leave. The court should freely give leave when
justice so requires." K.S.A. 2016 Supp. 60-215(a)(2). "A district court is given broad
discretionary power under [K.S.A.] 60-215 to permit the amendment of pleadings. An
appellate court will not find reversible error unless the amendment allowed or denied is
so material it affects the substantial rights of the adverse party." Johnson v. Board of
Pratt County Comm'rs, 259 Kan. 305, 327, 913 P.2d 119 (1996) (citing Williams v.
Amoco Production Co., 241 Kan. 102, 109, 734 P.2d 1113 [1987]); see also Hoover
Equipment Co., 198 Kan. at 133 ("A trial court is given wide latitude and discretion in
permitting or refusing amendments of pleading in the interests of justice. In the absence
of a clear abuse of discretion the order of the trial court should be approved.").

Here, RMS sought leave to correct the principal balance of the mortgage alleged in
the original petition. At the time of the amendment, Goldwyn had not yet answered or
otherwise responded to RMS's petition, and the district court granted RMS's motion the
18
next business day. Goldwyn filed no objection to the order granting the amendment, even
after her counsel entered his appearance. In her brief, Goldwyn makes no showing that
the allowed amendment was so material that it affected her substantial rights. See
Johnson, 259 Kan. at 327. Given that she bears the burden of such a showing, we
conclude she has failed to do so. See Leeper, 241 Kan. 241, Syl. ¶ 7. Moreover, from a
review of the record, it appears such a showing would have been impossible. The
amendment occurred on August 18, 2014. Goldwyn, pursuant to the agreement of the
parties, timely answered the amended petition. Summary judgment was not granted in
favor of RMS until November 9, 2016. Goldwyn, who argues the amendment equated to
her "repeatedly not getting her 'day in court,'" had over two years' notice of the
amendment to prepare a defense against the allegations contained in the amended
petition. Clearly, the district court did not abuse its discretion in allowing RMS to amend
the principal balance of the mortgage alleged in the original petition.

B. Was the amended petition properly filed and served?

Goldwyn also argues the amended petition was never filed in the district court and
not properly served upon her. However, this assertion is contradicted by the record on
appeal. RMS's motion for leave to amend the petition was filed on August 15, 2014, and
the amended petition itself was also filed that same day. Both documents indicate that
they were served upon Goldwyn via first class mail, and Goldwyn admits as much.
Moreover, the amended petition clearly bears the filing stamp of the Clerk of the Riley
County District Court. The amended petition was filed. Given that service via mail to the
defendant's last known address is a sufficient method of service when the party is
unrepresented by an attorney—Goldwyn's attorney had not yet entered his appearance at
the time of service—Goldwyn was properly served with RMS's amended petition. See
K.S.A. 2016 Supp. 60-205(b)(2)(C).

19
Finally, we would point out that even if an error occurred in the service of the
amended petition, Goldwyn has waived any objection to such error. "Subsection (h) of
K.S.A. 60-212 provides that a defense of . . . insufficiency of service of process is waived
if it is not made by motion or included in a responsive pleading." Kansas Bd. of Regents
v. Skinner, 267 Kan. 808, 812, 987 P.2d 1096 (1999). Goldwyn did not raise
insufficiency of service in her answer to the amended petition.

In her reply brief, Goldwyn strongly disputes RMS's argument that she waived this
defense by failing to assert it in her answer to the amended petition. She supports her
argument by quoting the first paragraph of her answer to the first amended petition:

"1. Defendant is without sufficient information or belief to either admit or deny
sufficiency of notice or summons, or service thereof as alleged in ¶¶ 3-6 and therefore
DENIES ¶¶ 3-6 of the Amended Petition and puts Plaintiff on strict proof thereof."

Paragraphs 3, 4, 5, and 6 of the amended petition assert that the following parties have
been both properly notified of the action and served: HUD (Paragraph 3), the United
States of America (Paragraph 4), Jan Ackerman (Paragraph 5), and the Kansas
Department of Health and Environment (DHE) (Paragraph 6). The assertion that
Goldwyn was properly notified and served is contained in Paragraph 2 of the amended
petition. Goldwyn does not raise insufficient service as a defense in her answer; thus, that
defense is waived. See K.S.A. 2016 Supp. 60-212(h).

V. DID THE DISTRICT COURT ERR IN ITS ORDER OF DEFAULT JUDGMENT?

Next, Goldwyn argues that the district court erred in its order of default judgment.
RMS argues that this issue is moot, and we agree.

20
On October 27, 2014, the district court found Goldwyn in default and entered a
journal entry of foreclosure in favor of RMS. However, pursuant to the agreement of
RMS and Goldwyn, this order was set aside.

As we have already explained, our court does not decide moot questions or render
advisory opinions. Montgomery, 295 Kan. at 840. Because the default order was set
aside, any alleged error in granting it by the district court is moot as there is no remedy
that can provide Goldwyn with conclusive relief.

VI. DID THE DISTRICT COURT ABUSE ITS DISCRETION IN GRANTING GOLDWYN'S
COUNSEL'S MOTION TO WITHDRAW?

Goldwyn also argues the district court erred in allowing her counsel to withdraw
from the case. The granting or denial of a motion to withdraw is reviewed for an abuse of
discretion. See State v. Ferguson, 254 Kan. 62, 69, 864 P.2d 693 (1993).

Kansas Rule of Professional Conduct 1.16 (2017 Kan. S. Ct. R. 331) states in
pertinent part:

"(b) Except as stated in paragraph (c), a lawyer may withdraw from representing
a client if withdrawal can be accomplished without material adverse effect on the
interests of the client, or if:
(1) the client has used the lawyer's services to perpetrate a crime or fraud;
(2) a client insists upon pursuing an objective that the lawyer considers repugnant
or imprudent;
(3) the client fails substantially to fulfill an obligation to the lawyer regarding the
lawyer's services and has been given reasonable warning that the lawyer will withdraw
unless the obligation is fulfilled;
(4) the representation will result in an unreasonable financial burden on the
lawyer or has been rendered unreasonably difficult by the client; or
(5) other good cause for withdrawal exists.
21
"(c) When ordered to do so by a tribunal, a lawyer shall continue representation
notwithstanding good cause for terminating the representation."

Comment 8 to this rule states: "A lawyer may withdraw if the client refuses to abide by
the terms of an agreement relating to the representation, such as an agreement concerning
fees or court costs or an agreement limiting the objectives of the representation." 2017
Kan. S. Ct. R. 332.

On September 19, 2016, Goldwyn's attorney informed the court that he was having
difficulty communicating with his client. In his motion for an extension of time in which
to file a response to the motion for summary judgment, Goldwyn's counsel stated:
"[Counsel] is attempting to ascertain and confirm whether or not [Goldwyn] wishes to
continue to retain this attorney and law firm for purposes of defending against the
Foreclosure Petition." On October 4, 2016, Goldwyn's counsel filed his motion for
permission to withdrawal from further representation. In this motion, counsel stated:

"[C]ounsel would show the Court that he has delivered a copy of the Motion for
Summary Judgment to [Goldwyn] and advised [Goldwyn] in writing at all mailing
addresses, phone numbers, and electronic addresses known to counsel, of [Goldwyn's]
obligations owed to her attorney pursuant to the Kansas Rule of Professional Conduct
Rule 1.16 but has heard nothing from [Goldwyn], nor otherwise received any
communication or contact from [Goldwyn]."

On October 18, 2016, 14 days later, Goldwyn filed a motion for an extension of
time to file a response to her counsel's motion for permission to withdraw. In this motion,
Goldwyn advised that she was waiting to receive an itemized billing for the case and that
she was "attempting to ascertain whether or not her attorney is willing to accept payments
in this matter." In her filed objection, Goldwyn again asserted that she was waiting for a
list of itemized billing and argued that because the matter was quickly approaching
conclusion, her counsel should not be allowed to withdraw.
22
The district court granted the motion to withdraw on November 8, 2016, after a
hearing that same day. A transcript of this hearing does not appear in the record on
appeal. The order issued after the hearing states Goldwyn did not appear at the hearing.
The district court held that Goldwyn's counsel was allowed to withdraw from the case
because Goldwyn had been requested to comply with her material obligations owed to
her counsel and that she failed to comply.

It appears from the pleadings in the record on appeal that Goldwyn failed to fulfill
a material obligation to her counsel. Without a transcript of the November 8 hearing, we
certainly cannot find otherwise. Therefore, Goldwyn's counsel was within the scope of
permissive withdrawal under KRPC 1.16. The district court did not abuse its discretion in
granting this motion to withdraw.

VII. DID THE DISTRICT COURT ERR IN GRANTING SUMMARY JUDGMENT?

Finally, Goldwyn makes multiple arguments that the district court erred in
granting summary judgment in favor of RMS. Specifically, she argues (1) she was denied
a reasonable opportunity to present any material that was pertinent to RMS's motion for
summary judgment; (2) the district court did not comply with Supreme Court Rule 170
(2017 Kan. S. Sct. R. 212); and (3) the district court erred in holding that she failed to
respond to RMS's motion for summary judgment. Each of these three arguments will be
addressed in turn.

The standard for reviewing a district court's grant of summary judgment is well
known:

"'Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as
23
a matter of law. The trial court is required to resolve all facts and inferences which may
reasonably be drawn from the evidence in favor of the party against whom the ruling is
sought. When opposing a motion for summary judgment, an adverse party must come
forward with evidence to establish a dispute as to a material fact. In order to preclude
summary judgment, the facts subject to the dispute must be material to the conclusive
issues in the case. On appeal, we apply the same rules and where we find that reasonable
minds could differ as to the conclusions drawn from the evidence, summary judgment
must be denied.'" Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011) (quoting
Warner v. Stover, 283 Kan. 453, 455-56, 153 P.3d 1245 [2007]).

Before addressing Goldwyn's arguments, we note that Goldwyn failed to file a
response to RMS's motion for summary judgment. This perhaps explains why Goldwyn
only attacks the entry of summary judgment on procedural grounds. She failed to dispute
any factual allegation contained in the motion, and "[i]t is well settled that a point not
raised before, or presented to, the trial court cannot be raised for the first time on appeal."
Anderson v. Overland Park Credit Union, 231 Kan. 97, 107, 643 P.2d 120 (1982).
Goldwyn's failure to file a timely response to RMS's motion for summary judgment
waives any substantive objection to the motion for summary judgment.

A. Was Goldwyn denied a reasonable opportunity to present any material that
was pertinent to RMS's motion for summary judgment?

First, Goldwyn argues that she was denied a reasonable opportunity to present any
material that was pertinent to RMS's motion for summary judgment. In support, Goldwyn
cites to the 21st Judicial District Rule 1.07, which states: "Motions for summary
judgment will not be heard until discovery is complete, unless all issues to be considered
can be determined as matters of law and unless the issues will not be affected by later
discovered facts." She seems to argue that the district court erred in granting summary
judgment because discovery was not completed and she was not given an opportunity to
24
complete discovery. In response, RMS argues that Goldwyn had more than three years to
complete discovery and did not do so. We agree.

K.S.A. 2016 Supp. 60-212(c) and (d) read:

"(c) Motion for judgment on the pleadings. After the pleadings are closed, but
early enough not to delay trial, a party may move for judgment on the pleadings.

"(d) Result of presenting matters outside the pleadings. If, on a motion under
subsection (b)(6) or (c), matters outside the pleadings are presented to and not excluded
by the court, the motion must be treated as one for summary judgment under K.S.A. 60-
256, and amendments thereto. All parties must be given a reasonable opportunity to
present all the material that is pertinent to the motion."

Additionally, K.S.A. 2016 Supp. 60-256(e)(2) states:

"Opposing party's obligation to respond. When a motion for summary judgment
is properly made and supported, an opposing party may not rely merely on allegations or
denials in its own pleading; rather, its response must, by affidavits or by declarations
pursuant to K.S.A. 53-601, and amendments thereto, or as otherwise provided in this
section, set out specific facts showing a genuine issue for trial. If the opposing party does
not so respond, summary judgment should, if appropriate, be entered against that party."

Goldwyn entered her appearance on October 15, 2013. RMS filed its motion for
summary judgment on September 1, 2016. The district court granted RMS's motion for
summary judgment on November 9, 2016, more than three years after Goldwyn entered
her appearance. During the pendency of the case, Goldwyn did not conduct any
discovery. She cannot now say that she was not given an opportunity to do so. The
pleadings show that there was no genuine issue as to any material fact and that RMS was
entitled to judgment as a matter of law. See K.S.A. 2016 Supp. 60-256(e)(2). Goldwyn
did not respond, even though she had the opportunity to do so. We also note that
25
Goldwyn had a procedural avenue to contest the granting of summary judgment without
discovery having been completed. K.S.A. 2016 Supp. 60-256(f) allows a party opposing
summary judgment to submit an affidavit or declaration to the court explaining why "it
cannot present facts essential to justify its opposition[.]" Goldwyn never did this.

B. Was RMS required to serve a copy of its proposed order of summary
judgment on Goldwyn?

Next, Goldwyn argues that RMS was required to serve her with a copy of its
proposed journal entry of summary judgment under Supreme Court Rule 170. She argues
that because RMS did not serve her with a proposed order, the district court erred in
granting summary judgment in favor of RMS. RMS counters by arguing that Supreme
Court Rule 170 does not apply because it was not ordered to prepare a draft of this order
by the district court. Rather, RMS asserts that it simply submitted the draft of this order to
aid the district court.

Kansas Supreme Court Rule 170(a) and (b) (2017 Kan. S. Ct. R. 216) state:

"(a) Order; Content. When the court directs a party to prepare an order, the
party must prepare the order in accordance with the court's directions. As used in this
rule, 'order' includes a journal entry or other document containing a court ruling.

"(b) Duties of Party Preparing Order. A party directed to prepare an order
must, not later than 14 days after the court's direction, unless the court specifies a
different time:
(1) serve on counsel of record and unrepresented parties not in default for failure
to appear a copy of:
(A) the proposed order . . . ." (Emphasis added.)

26
As RMS correctly points out, the key language invoking the requirements of
Supreme Court Rule 170 is the requirement that a party who is directed by the district
court to prepare an order after the court has issued its ruling must serve a copy of the
proposed order to the opposing party. Here, the record does not reflect that the district
court ordered RMS to prepare an order, nor does Goldwyn point to anything in the record
to support her contention that the district court did so. In Lyndon State Bank v. Price, 33
Kan. App. 2d 629, Syl. ¶ 3, 106 P.3d 511 (2005), our court held: "Supreme Court Rule
170 applies to the preparation of journal entries that memorialize judgments that have
already been ordered by the court." Here, the district court had not yet issued its decision
regarding summary judgment when RMS submitted its suggested order. Thus, Kansas
Supreme Court Rule 170 is inapplicable. Because Goldwyn presents no other claim of
irregularity regarding the lack of service of the proposed journal entry, we find there was
no error.

C. Did the district court err in holding Goldwyn failed to respond to RMS's
motion for summary judgment?

Finally, Goldwyn argues the district court erred in holding that she had failed to
respond to RMS's motion for summary judgment only one day after allowing her attorney
to withdraw from the case. In response, RMS argues that Goldwyn was no stranger to
these legal proceedings and she could have easily filed a motion requesting an extension
of time.

RMS's motion for summary judgment was filed on September 1, 2016. Goldwyn
admitted she received a copy of the motion for summary judgment from her counsel on
September 22, 2016. On October 4, 2016, Goldwyn's counsel filed his motion to
withdraw. The district court did not rule on the motion for summary judgment until
November 9, 2016.

27
Goldwyn makes no argument explaining her failure to obtain new counsel, file a
response to the motion for summary judgment, or seek an extension of time to respond to
the motion for summary judgment. She had 69 days from the date the motion for
summary judgment was filed, 48 days from the date she admitted she received a copy of
this motion from her counsel, and 36 days from the date her counsel filed his motion to
withdraw to prepare a response or request an extension to respond. In this case, Goldwyn,
as a pro se litigant, has filed at least eight extensions of time at different stages of the
proceedings. She clearly understands how to request an extension of time but did not
request an extension of time to respond to RMS's motion for summary judgment.

Goldwyn's response to RMS's motion for summary judgment appears to have been
due September 21, 2016, but she did not meet this deadline. If we were to base
Goldwyn's time to respond from the date she admits she received a copy of the motion
for summary judgment from her counsel—September 22, 2016—her response would
have been due October 13, 2016. She had filed no response by this date either. Goldwyn
had ample opportunity to respond to the motion, and the district court did not err in
holding she failed to respond. There was no error in the district court's order granting
summary judgment in favor of RMS.

Affirmed.