First Pryority Bank, an Okla. Banking Corp. v. Donald M. Moon, an Individual, & Nlco, Inc.

• Decision Date: 18 February 2014
• Docket Number: Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.,No. 111206.,111206.
• Citation: 326 P.3d 528
• Parties: FIRST PRYORITY BANK, an Oklahoma Banking Corporation, Plaintiff/Appellee, v. Donald M. MOON, an individual, and NLCO, Inc., Defendants/Appellants, Randall Brown, Intervenor/Appellant, The Board of County Commissioners of Tulsa County, and the Tulsa County Treasurer, Defendants.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

326 P.3d 528

FIRST PRYORITY BANK, an Oklahoma Banking Corporation, Plaintiff/Appellee,

v. Donald M. MOON, an individual, and NLCO, Inc., Defendants/Appellants,Randall Brown, Intervenor/Appellant,The Board of County Commissioners of Tulsa County, and the Tulsa County Treasurer, Defendants.

No. 111206.Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.

Court of Civil Appeals of Oklahoma, Division No. 1.

Sept. 27, 2013.

Certiorari Denied Feb. 18, 2014.

Appeal from the District Court of Tulsa County, Oklahoma; Honorable Daman H. Cantrell, Judge.

AFFIRMED

Joseph L. Hull, III, Joseph L. Hull, P.L.L.C., Tulsa, Oklahoma, for Appellants.

Wm. Brad Heckenkemper, Barrow & Grimm, P.C., Tulsa, Oklahoma, for Appellee.

LARRY JOPLIN, Chief Judge.

¶ 1 Defendants/Appellants Donald M. Moon, an individual, NLCO, Inc. (collectively, Moon), and Randall Brown (Brown, or, collectively with Moon, Appellants) seek review of the trial court's orders denying Moon's motion to vacate, Moon's objections to execution and Brown's motion to intervene in the action of Plaintiff/Appellee First Pryority Bank, an Oklahoma Banking Corporation (Bank), to collect on a promissory note and foreclose a mortgage. Appellants assert the trial court erred in denying Moon's motion to vacate, and in denying Moon's objection to execution. Appellants also assert the trial court erred in denying Brown's motion to intervene as assignee of Moon's “choses in action.”

¶ 2 We hold the trial court did not abuse its discretion in denying Moon's motion to vacate. Moon's claims, counterclaims, and choses in action were subject to execution, and Bank, as purchaser of Moon's claims, counterclaims and choses in action at sheriff's sale, permissibly dismissed those claims. The trial court did not err in denying the objections to execution, and did not err in denying Brown's motion to intervene. The orders of the trial court are therefore affirmed.

¶ 3 According to Moon, this case represents one of seventeen actions commenced against him by Bank to collect on notes and foreclose mortgages. To better understand the present case, and because of a common issue, we first summarize the proceedings in three of the other cases commenced by Bank against Moon.

I. RELATED CASES

A. Case No. CJ–2008–1268

¶ 4 From a review of the trial court docket, it appears that, on February 19, 2008, Bank commenced an action against Moon, assigned Tulsa County District Court Case No. CJ–2008–1268. Bank alleged that, on or about June 23, 2006, Moon executed a two-year promissory note payable to Bank in the principal sum of $352,029.32, with interest at a variable rate, secured by a mortgage on fifteen residential lots in the Glens Phase I, a subdivision in the City of Sand Springs, Tulsa County, Oklahoma, that Moon defaulted in payment on the note, and there remained a past due unpaid balance owing by Moon. Bank prayed for judgment on the note with interest accrued and accruing, foreclosure of the mortgage by sheriff's sale, and application of the proceeds to satisfy the debt.

¶ 5 It further appears from the trial court docket that Moon filed an amended answer on June 23, 2009. Moon asserted counterclaims for deceit and breach of duty of good faith on the allegation of Bank's intentional conduct to devalue the security and induce his default, and violation of the parties' alleged agreement entered in January 2008, for which he sought actual and punitive damages.

¶ 6 On September 14, 2010, Bank obtained judgment against Moon in trial court Case No. CJ–2008–1319, the subject of the present appeal.¹ In post-judgment collection proceedings, Bank obtained a writ of execution upon Moon's defenses, claims and counterclaims asserted in this case, No. CJ–2008–1268. Bank purchased those rights at sheriff's sale on October 2, 2012, and subsequently dismissed Moon's claims and counterclaims with prejudice. As near as we can tell, this case remains pending.

B. Case No. CJ–2008–1270—Appeal No. 111,333

¶ 7 Also on February 18, 2008, Bank commenced another action against Moon in the trial court, assigned Tulsa County District Court Case No. CJ–2008–1270. Bank alleged that, on or about April 27, 2006, Moon executed a one-year promissory note payable to Bank in the principal sum of $123,240.11, with interest at a variable rate, secured by a mortgage on four other residential lots of the Glens Phase I subdivision, that Moon defaulted in payment, and there remained a past due unpaid balance owing by Moon. Bank prayed for judgment on the note with interest accrued and accruing, foreclosure of the mortgage by sheriff's sale, and application of the proceeds to satisfy the debt.

¶ 8 By amended answer filed April 9, 2009, Moon alleged the existence of an executed agreement with Bank and another lender, “consummated” by e-mail January 7, 2008, calling for Moon's payments toward unpaid interest, in consideration for additional financing from the other lender to retire the debts to Bank, and Bank's breach of the agreement by misapplication of Moon's payments, resulting in failure of the additional financing.² Moon asserted counterclaims for deceit and violation of duty of good faith and fair dealing implicit in the subsequent agreement, and claimed actual and punitive damages.

¶ 9 However, as we have previously noted, Bank in September 2010 obtained judgment against Moon in trial court Case No. CJ–2008–1319, the subject of the present appeal.³ Moon filed a motion to vacate, and objection to execution, which the trial court denied. Bank obtained a writ of execution upon Moon's defenses, claims and counterclaims asserted in Case No. CJ–2008–1268,⁴ Case No. CJ–2008–1270, and Case No. CJ–2008–1319, the subject of the present appeal. Bank purchased the defenses, claims and counterclaims at sheriff's sale October 2, 2012 and, in Case No. CJ–2008–1268 and this case, subsequently dismissed the counterclaims with prejudice.

¶ 10 On October 12, 2012, Bank then filed its motion for summary judgment in this case. Upon Moon's failure either to object to Bank's Motion for Summary Judgment “within the time specified,” or to present “any admissible evidence to dispute [Bank's] claims or support [their] counterclaims as a defense to [Bank's] Motion,” and recognizing “Defendants' counterclaims have been dismissed with prejudice,” the trial court granted judgment to Bank on its claims for collection of the note, and foreclosure of the mortgage by Journal Entry of Judgment filed November 13, 2012. On December 13, 2012, Moon filed his Petition in Error in the Supreme Court to commence Appeal Case No. 111,333. The Supreme Court denied Moon's post-appeal motions to stay execution, the mortgaged property sold at sheriff's sales in February 2013, and the trial court confirmed the sales in August 2013.

C. Case No. CJ–2008–1272—Appeal No. 111,229

¶ 11 On February 18, 2008, Bank commenced yet another action against Moon, assigned Tulsa County District Court Case No. CJ–2008–1272. Bank alleged that, on or about January 24, 2007, Moon executed a one-year promissory note payable to Bank in the principal sum of $176,577.32, with interest at a variable rate, secured by a mortgage on a single residential lot of the Glens Phase I subdivision, that Moon defaulted in payment, and there remained a past due unpaid balance owing by Moon. Bank prayed for judgment on the note with interest accrued and accruing, foreclosure of the mortgage on real property by sheriff's sale, and application of the proceeds to satisfy the debt.

¶ 12 By amended answer filed December 5, 2009, Moon alleged that Bank “engaged in a course of conduct intended to devalue the collateral pledged by the defendants to secure the promissory note and intended to place the defendants in default of the subject note.” Moon further alleged Bank “breached its duty of good faith and fair dealings and engaged in conduct contrary to an agreement entered into on January 7th, 2008,” ⁵ and asserted counterclaims for deceit and breach of duty of good faith to recover actual and punitive damages.

¶ 13 As we have previously noted, however, in September 2010, Bank obtained judgment against Moon in the present appeal, trial court Case No. CJ–2008–1319. ⁶ In January 2012, Bank issued a writ of execution upon Moon's counterclaims asserted in this case, No. CJ–2008–1272, and purchased the counterclaims at sheriff's sale January 17, 2012.

¶ 14 On March 8, 2012, Bank dismissed Moon's counterclaims with prejudice in this case. On the same date, Bank filed a motion for summary judgment, and Moon filed his response to Bank's motion for summary judgment on May 29, 2012. The mortgaged property sold at a tax sale on June 13, 2012.

¶ 15 By Journal Entry of Judgment filed October 10, 2012, the trial court granted judgment on the note to Bank against Moon personally. On November 9, 2012, Moon filed his Petition in Error in the Supreme Court to commence Appeal Case No. 111,229.

II. The Present Case—Case No. CJ–2008–1319–Appeal No. 111,206

A. Statement of the Case

¶ 16 On February 20, 2008, Bank commenced the instant action against Moon in the trial court, assigned Tulsa County District Court Case No. CJ–2008–1319. Bank alleged that, on or about November 2, 2006, Moon executed a one-year promissory note payable to Bank in the principle sum of $620,255.60, with interest at a variable rate, secured by both a $100,000.00 certificate of deposit and a mortgage on a 5.63 acre tract of real property in Tulsa County, Oklahoma, that Moon defaulted in payment, and there remained a past due unpaid balance owing by Moon. Bank prayed for judgment on the note with interest accrued and accruing, application of the proceeds of the certificate of deposit to the debt, as well as foreclosure of the mortgage on real property by sheriff's sale.

¶ 17 Moon entered an appearance in March 2008, and filed an answer in April 2008. By amended answer filed without leave of the trial court over one year later...