Bank of N.Y. Mellon v. Rowley

• Citation: 338 P.3d 24 (Table)
• Decision Date: 26 November 2014
• Docket Number: 110,063.
• Parties: BANK OF NEW YORK MELLON, Appellee, v. Kip ROWLEY and Renae Rowley, Appellees, Laurence M. Jarvis, Executor of the Estate of Marjorie S. Hendel, et al., Appellant.
• Court: Kansas Court of Appeals

338 P.3d 24 (Table)

BANK OF NEW YORK MELLON, Appellee

v.Kip ROWLEY and Renae Rowley, Appellees

Laurence M. Jarvis, Executor of the Estate of Marjorie S. Hendel, et al., Appellant.

110,063.

Court of Appeals of Kansas.

Nov. 26, 2014.

Laurence M. Jarvis, of Leawood, for appellant.

Stephanie L. Mendenhall, of South & Associates, P.C., of Overland Park, for appellee.

Before McANANY, P.J., ARNOLD–BURGER, J., and LARSON, S.J.

MEMORANDUM OPINION

PER CURIAM.

In this appeal, Laurence M. Jarvis, executor of the estate of Marjorie Hendel, a junior mortgagee, claims the district court committed reversible error:

(1) in finding and holding Bank of New York Mellon (Bank) had standing to obtain an in personum money judgment against Kip Rowley and an in rem judgment foreclosing its first and superior mortgage against three tracts of real property in Johnson County upon which the Rowleys executed and had recorded a first mortgage to Bank;

(2) in not allowing Jarvis to assert contract defenses on Kip Rowley's note to Bank, a contract to which Jarvis was not a party, and in not finding inequitable collusion on part of the Rowleys and the Bank when they entered into a consent judgment in an attempt to minimize attorney fees; and

(3) in finding Bank had properly declared the entire indebtedness due and payable, in failing to prove default of the reinstated note, or that notice of default, notice of right to cure, and other required notices had been given.

We have reviewed the entire record submitted to us, considered the briefs and arguments of the parties and hold (1) the original note and mortgage was submitted to the court and Bank had standing to enforce both documents, (2) Jarvis was not in privity or a third party beneficiary of the contracts between Bank and the Rowleys and did not have standing to raise defenses to their agreement, and (3) as to his final claims, Jarvis fails to cite a standard of review and support his position with any valid arguments and such points on appeal are deemed waived and abandoned.

The district court's 17–page Journal Entry of Judgment and the 1–page order denying the Executor's Motion to Alter, Clarify or Amend the Journal Entry of Judgment and the Executor's Motion to Quash Plaintiff's Order for Sheriff's Sale and Notice of Sale are based on findings of fact supported by substantial competent evidence, and the district court's opinion or conclusions of law are correct and adequately explain the decision.

Therefore, the district court is affirmed...