FROM THE PULASKI COUNTY CIRCUIT COURT, SECOND DIVISION [NO.
60CV-14-2554] HONORABLE CHRISTOPHER CHARLES PIAZZA, JUDGE
A. Hodges, for appellant.
Wright, Lindsey & Jennings LLP, by: Kimberly Wood Tucker
and Seth R. Jewell, for appellee.
RAYMOND R. ABRAMSON, Judge
Jackson appeals the Pulaski County Circuit Court order
dismissing her claims against Nationstar Mortgage LLC
("Nationstar") with prejudice. On appeal, Jackson
argues that the circuit court erred when it (1) considered
Nationstar's motion to dismiss after she filed an amended
complaint; (2) did not afford her an opportunity to respond
to the motion to dismiss as to the new claims in her amended
complaint; and (3) found that Arkansas law does not permit
recovery for her claims. We affirm.
action arises out of Jackson's homeowners' insurance
contract with Allstate Insurance Company
("Allstate") and her mortgage
agreement with Nationstar concerning her house in
Little Rock. The insurance contract provided as follows:
We will protect the mortgagee's interest in a covered
building structure in the event of an increase in hazard,
intentional or criminal acts of, or directed by, an insured
person, failure by any insured person to take all reasonable
steps to save and preserve property after a loss, a change in
ownership, or foreclosure if the mortgagee has no knowledge
of these conditions.
mortgage agreement provided,
In the event of loss, Borrower shall give prompt notice to
the insurance carrier and Lender. Lender may make proof of
loss if not made promptly by Borrower. Unless Lender and
Borrower otherwise agree in writing, any insurance proceeds,
whether or not the underlying insurance was required by
Lender, shall be applied to restoration or repair of the
Property, if the restoration or repair is economically
feasible. . . . .
If the restoration or repair is not economically feasible or
Lender's security would be lessened, the insurance
proceeds shall be applied to the sums secured by this
Security Instrument, whether or not then due, with the
excess, if any, paid to Borrower.
February 22, 2012, the house burned, leaving it
uninhabitable. Jackson made a claim under her homeowners'
policy, but Allstate denied it on the basis of alleged arson,
misrepresentation, and concealment by Jackson.
February 6, 2013, Jackson filed suit against Allstate in the
Pulaski County Circuit Court alleging that Allstate had
wrongfully denied her insurance claim following the house
fire. Allstate removed the case to federal district court on
February 25, 2013. The case proceeded to trial, and the jury
rendered a verdict in favor of Allstate, finding that
"Jackson or someone on her behalf, either burned her
home or caused it to burn."
the trial, on July 1, 2014, Jackson filed a
declaratory-judgment action against Nationstar in the Pulaski
County Circuit Court. She alleged that Allstate's attorney
had informed her that Allstate had made an agreement with
Nationstar to satisfy her mortgage for $203, 164.41 and that
Allstate had sent Nationstar a check for that amount in March
2014; however, her mortgage balance remained $243,
845.38. She asked the court to (1) require
Allstate to pay off the mortgage in full; (2) declare that
she had no further liability to Nationstar; (3) require
Nationstar to reimburse her for the mortgage payments she
made following the fire; and (4) require Nationstar to remove
a lockbox placed on the house following the fire.
August 20, 2015, Nationstar filed a motion to dismiss.
Nationstar informed the court that after Jackson filed the
action, it applied the $203, 164.41 that it received from
Allstate to the outstanding loan balance, charged off the
remaining amounts owed on the loan, and recorded a release of
the mortgage in the Pulaski County real estate records.
Nationstar asserted that as a result of the release,
Jackson's requested relief was either moot or unavailable
under Arkansas law. Specifically, Nationstar contended that
Jackson was not entitled to reimbursement for mortgage
payments because the insurance policy contained a standard
mortgage clause. Nationstar relied on Fireman's Fund
Insurance Co. v. Rogers, 18 Ark.App. 142, 712 S.W.2d 311
(1986), and asserted ...