Bank of Am., N.A. v. Dasovich

• Decision Date: 18 July 2017
• Docket Number: Case Number: 115574
• Citation: 415 P.3d 547
• Parties: BANK OF AMERICA, N.A., Successor by Merger to BA Mortgage, LLC, Successor in Interest by Merger of NationsBanc Mortgage Corporation, Successor in Interest by Merger to Boatman's National Mortgage, Inc. f/k/a Bank IV Oklahoma, N.A., Plaintiff/Appellant, v. W. Jeffrey DASOVICH a/k/a William Jeremy Dasovich and Sally W. Dasovich a/k/a Sally Witney Dasovich, Husband and Wife, Defendants/Appellees, and Occupants of the Premeses, State of Oklahoma ex rel. Oklahoma Tax Commission, United States of America ex rel. Internal Revenue Service and Jeff Beeler, Defendants.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

415 P.3d 547

BANK OF AMERICA, N.A., Successor by Merger to BA Mortgage, LLC, Successor in Interest by Merger of NationsBanc Mortgage Corporation, Successor in Interest by Merger to Boatman's National Mortgage, Inc. f/k/a Bank IV Oklahoma, N.A., Plaintiff/Appellant,

v. W. Jeffrey DASOVICH a/k/a William Jeremy Dasovich and Sally W. Dasovich a/k/a Sally Witney Dasovich, Husband and Wife, Defendants/Appellees,andOccupants of the Premeses, State of Oklahoma ex rel. Oklahoma Tax Commission, United States of America ex rel. Internal Revenue Service and Jeff Beeler, Defendants.

Case Number: 115574

Court of Civil Appeals of Oklahoma, Division No. 4.

Decided: July 18, 2017

Rehearing Denied: September 5, 2017

Mandate Issued: March 28, 2018

Jon H. Patterson, BRADLEY ARANT BOULT CUMMINGS, LLP, Birmingham, Alabama, for Plaintiff/Appellant

F. Smith Barnes, F. SMITH BARNES, A PROFESSIONAL CORPORATION, Oklahoma City, Oklahoma and C. Austin Reams, REAMS LAW, Oklahoma City, Oklahoma, for Defendants/Appellees

DEBORAH B. BARNES, PRESIDING JUDGE:

¶ 1 Bank of America, N.A. (BANA) appeals from the district court's dismissal of its action to enforce a federal foreclosure judgment it obtained against W. Jeffrey Dasovich and Sally W. Dasovich. Based on our review of the law and the record presented, we reverse and remand for further proceedings.

BACKGROUND

¶ 2 In 2007, BANA filed a foreclosure action against the Dasoviches in Oklahoma County District Court. The Dasoviches were served and filed an answer. However, prior to filing their answer, the case was removed, on diversity grounds, to the United States District Court for the Western District of Oklahoma. Thereafter, BANA filed a motion for summary judgment in the federal case, to which the Dasoviches filed an objection and response. In August 2008, the federal court granted BANA's motion as to its right to foreclose, but denied the motion as to the amount of damages. On February 13, 2009, BANA filed another motion for summary judgment as to the amount of damages. The federal court sustained that motion by separate order and on March 19, 2009, the federal court entered its foreclosure judgment awarding judgment to BANA in rem and in personam against the Dasoviches in the amount of $201,597.82 with interest on that amount from November 2006 at the rate of 6.875% per annum, and a reasonable attorney's fee and costs.

¶ 3 In the foreclosure judgment, the federal court stated:

[T]his case [is] remanded to the District Court of Oklahoma County, Oklahoma [,] and a Special Execution and Order of Sale issue out of the office of said District Court Clerk, directed to the Sheriff to levy upon, advertise and sell, after due and legal appraisement, the [subject] real estate and premises ..., subject to unpaid real estate ad valorem taxes and/or special assessments, if any, and pay the proceeds of said sale to the Clerk of the District Court of Oklahoma County, as provided by law, for application as follows: [to payment for the costs of the sale, to BANA for payment of its foreclosure judgment, and to payment of the junior lien holders.]

Said order reserving the right of [BANA] to recall said execution by oral announcement and/or further order of the District Court of Oklahoma County prior to the sale.

The foreclosure judgment stated "[i]ncluded in the remand are all matters pertaining to the enforcement of this judgment, including but not limited to confirmation of the sale."

¶ 4 On June 23, 2010, the federal court clerk for the western district sent a letter to the Oklahoma County Court Clerk that was filed in the Oklahoma County court case on July 6, 2010. The letter stated that pursuant to the March 2009 foreclosure judgment, "this case was remanded to your court for all matters pertaining to the enforcement of [the foreclosure] judgment, including but not limited to confirmation of the sale." It also stated that "enclosed" was a certified copy of the remand order and a certified copy of the docket sheet in the foreclosure action.

¶ 5 On July 30, 2010, BANA issued a Special Execution and Order of Sale out of the office of the Oklahoma County Court Clerk and Sheriff's Sale was set for September 16, 2010, but was later recalled. An alias special execution and order of sale was issued in October 2010, and Sheriff's Sale was set for December 2010. On November 24, 2010, the Dasoviches filed an application for temporary restraining order in which they admitted they were made aware of the foreclosure judgment in mid-August 2010 when they received notice of the Sheriff's Sale. Among other matters, they claimed they had no notice of the filing of the motion for summary judgment in the federal case, had made attempts to get certain financial information from BANA in November 2010 via subpoena duces tecum but had received no documentation from BANA's attorneys, and were "desirous of resolving their continuing dispute with [BANA]."

¶ 6 On May 25, 2016, the Dasoviches filed a motion to dismiss BANA's action for lack of jurisdiction and failure to properly register the foreclosure judgment pursuant to the Uniform Enforcement of Foreign Judgments Act, 12 O.S. 2011 §§ 719 - 726. Between November 2010 and May 2016, BANA had issued two other alias special executions and order of sale, the Dasoviches filed three other applications for temporary injunction, the court entered an order sustaining the Dasoviches' fourth application for temporary restraining order, and the court granted BANA's motion to vacate the temporary restraining order and set an evidentiary hearing for March 2016 to determine the amount needed to satisfy the debt obligation, but that hearing was postponed until August 2016.

¶ 7 The hearing apparently did not occur; however, on August 18, 2016, having previously received the briefs and arguments of the parties, the trial court heard arguments on the Dasoviches' motion to dismiss. On November 2, 2016, the Oklahoma district court entered its order sustaining the Dasoviches' motion finding that the "certified copy" of the foreclosure judgment filed by the federal court clerk did not satisfy the requirements of the UEFJA "of filing an 'authenticated' copy of the judgment. Accordingly, this Court lacks jurisdiction over any further post-judgment execution proceedings in this matter."

¶ 8 BANA appeals.

STANDARD OF REVIEW

¶ 9 The trial court dismissed BANA's action because it determined it lacked jurisdiction to proceed in the matter. "The standard of review for questions concerning the jurisdictional power of the trial court to act is de novo." Dilliner v. Seneca-Cayuga Tribe of Okla. , 2011 OK 61, ¶ 12, 258 P.3d 516 (citation omitted). Similarly, this Court subjects a trial court's order granting a motion to dismiss to de novo review.

Wilson v. State ex rel. State Election Bd. , 2012 OK 2, ¶ 4, 270 P.3d 155. Motions to dismiss are generally disfavored. Id.¹

ANALYSIS

I. Nature of Foreclosure Judgment: Foreign Judgment

¶ 10 In its statement of the issues to be adjudicated on appeal, BANA asserts, "Whether the docket of the federal action is automatically incorporated into the state court docket is a matter of first impression for the Oklahoma Supreme Court and is likely the determinative issue in this appeal."² In its supplemental briefing in opposition to the Dasoviches' motion to dismiss, BANA cites a number of cases from other jurisdictions in which those state appellate courts gave effect upon remand to pleadings and motions filed in federal cases prior to remand. As BANA states, the reason many of these courts do so is because "interests of efficiency and judicial economy favor a policy of giving continued effect to pleadings and motions filed in federal court prior to remand. This rule mirrors the federal post-removal procedure of picking the case up where it left off and avoids the necessity of duplicative filings." Crumpton v. Perryman , 956 P.2d 670, 675 (Colo. App. 1998) (citations omitted).

¶ 11 In all of the cases cited by BANA, however, the cases were remanded because the federal court determined it did not have subject matter jurisdiction, either because it lacked diversity of citizenship or a federal question,³ or because the federal court exercised its discretion to remand state claims properly removed with the federal jurisdiction claim after the federal claim was resolved.⁴ In none of those cases did the federal court render final judgment on the claim and remand for enforcement of its judgment in the state court and no pendant state claim remained.⁵ BANA has not cited, nor have we found, statutory or decisional authority that gives a federal court the discretion, under the circumstances presented here, to remand a case over which the federal court properly exercised jurisdiction.⁶

¶ 12 We, therefore, conclude the foreclosure judgment in this case is a foreign judgment that BANA may seek to enforce in Oklahoma.

II. District Court's Jurisdiction

¶ 13 As BANA concedes, it may seek enforcement of a foreign judgment in Oklahoma courts either through filing a lawsuit to enforce that judgment or through the provisions of the Uniform Enforcement of Foreign Judgments Act, 12 O.S. 2011 §§ 719 - 726.⁷ It asserts it "substantially complied with the spirit of the UEFJA" and, thus, the trial court erred in dismissing the case because the court determined it lacked jurisdiction. BANA claims it substantially complied because the clerk of the court from which the foreclosure judgment was entered filed a certified copy of that judgment along with a certified copy of the docket sheet from the federal action on July 6, 2010.

¶ 14 The motion and arguments made by the Dasoviches in support of their motion call for dismissal "with prejudice" of BANA's "action" because, they claim, it did not comply with the mandatory requirements of the UEFJA. They argue the foreclosure judgment was not "properly registered" because it was not properly authenticated; it was not separately filed or file-stamped; the court clerk did not file...