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No. 101,8481

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., Appellee, v. MICHELLE C. GRAHAM and DAVID MARTINEZ, Appellants, v. COUNTRYWIDE HOME LOANS, INC., Appellee.

SYLLABUS BY THE COURT

1. Standing is a question of 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. The party must have personally suffered some injury and there must be a causal connection between the injury and the challenged conduct. 2. Standing is a component of subject matter jurisdiction, which any party, or the court on its own motion, may raise at any time.

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3. Parties cannot confer subject matter jurisdiction by consent, waiver, or estoppel. Nor can parties convey jurisdiction on a court by failing to object to its lack of jurisdiction.

4. In a mortgage foreclosure action, a nonlender is not a contingently necessary party. Determination of the legal status of a nominee depends on the context of the relationship of the nominee to its principal.

5. Without an agency relationship between the person holding the note and the person holding the mortgage, the person holding the note lacks the power to foreclose the mortgage in the event of a default.

6. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, the appellate court applies the same rules and where it finds reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.

7. The elements required to sustain an action for fraud include: (1) an untrue statement of fact, (2) known to be untrue by the party making it, (3) made with the intent to deceive or with reckless disregard for the truth, (4) upon which another party justifiably relies, and (5) acts to his or her detriment.

8. Although the existence of fraud is normally a question of fact, when a plaintiff presents no evidence of an essential element of his or her claim, there can be no genuine 2

issue as to any material fact, since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. When a plaintiff lacks evidence to establish an essential element of his or her claim, summary judgment is appropriate.

9. Whether a person has engaged in a deceptive act or practice is a question of fact and not appropriate for summary judgment. However, summary judgment is appropriate on claims under K.S.A. 50-626 and K.S.A. 50-627 if there is no evidence of deceptive or unconscionable conduct.

10. Whether acts are unconscionable under the Kansas Consumer Protection Act is a legal question for the district court, for which appellate review is unlimited.

11. When determining whether certain conduct was unconscionable under the Kansas Consumer Protection Act, the district court is to consider whether the supplier knew or had reason to know any of the circumstances listed in K.S.A. 50-627(b).

Appeal from Shawnee District Court; FRANKLIN R. THEIS, judge. Opinion filed April 30, 2010. Affirmed in part, reversed in part, and dismissed in part.

Paul D. Post, of Topeka, for appellants.

Staci Olvera Schorgl and Rebecca S. Jelinek, of Bryan Cave LLP, of Kansas City, Missouri, for appellees Mortgage Electronic Registration Systems, Inc. and Countrywide Home Loans, Inc.

Before MARQUARDT, P.J., BUSER, J., and LARSON, S.J.

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MARQUARDT, J.: Michelle Graham and David Martinez appeal the partial summary judgment granted to Mortgage Electronic Registration Systems, Inc. (MERS), on MERS's petition to foreclose Graham and Martinez' mortgage. Graham and Martinez also appeal the summary judgment granted in favor of Countrywide Home Loans, Inc. (Countrywide), and the denial of their Kansas Consumer Protection Act (KCPA) and fraud claims. We affirm in part, reverse in part, and dismiss in part.

In August 2002, Graham executed a mortgage and promissory note for $140,000 with Countrywide for the purchase of a house. MERS, "acting solely as nominee for Countrywide," held the mortgage on the property. The property is titled in Graham's name, and she is the sole signatory on the promissory note. According to Graham's appellate brief, she and Martinez "have long considered themselves to be common law spouses, and accordingly, each recognizes that the other has an interest in this property."

Graham stopped making monthly payments on the promissory note in June 2004. MERS filed a petition to foreclose the mortgage in September 2004. MERS and Countryside named Martinez as a defendant in the foreclosure action "by virtue of his marital interest in the property." The district court dismissed the petition without prejudice after learning that Graham and Martinez had filed for Chapter 13 bankruptcy in August 2004. The bankruptcy was dismissed in February 2005 for lack of feasibility; however, Graham and Martinez filed another Chapter 13 bankruptcy in May 2005. Because of the bankruptcy filing, MERS, as nominee for Countrywide, filed a motion for relief from the automatic stay placed on the foreclosure action under 11 U.S.C.

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Kansas Law