Estate of Dilley, Matter of
| Decision Date | 24 May 1996 |
| Docket Number | No. 85076,No. 1,85076,1 |
| Citation | 919 P.2d 458 |
| Parties | 1996 OK CIV APP 64 In the Matter of the ESTATE OF James P. DILLEY, Deceased. LEC CAPITAL CORPORATION, Appellant, v. Michael DILLEY, as Personal Representative of the Estate of James P. Dilley, Deceased, and Michael Dilley, Individually, Appellee. Court of Appeals of Oklahoma, Division |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
LEC Capital Corporation (Appellant or LEC) seeks reversal of the order of the District Court of Tulsa County dismissing its Petition, filed in this probate proceeding, whereby LEC asked the court to require Michael Dilley, as Personal Representative of the Estate of James P. Dilley, 1 deceased, and Michael Dilley, individually (Appellee or PR), to account for the assets of the estate and for the handling of its funds.
Prior to the death of James P. Dilley, two corporations, Yale Exploration Corporation and Dilley Corporation, borrowed money from the First National Bank and Trust of Yale, Oklahoma, and executed promissory notes to the bank evidencing the debts. James P. Dilley was a guarantor of those notes. In addition, the notes were secured by mortgages on real property, leasehold estates, proceeds of the leaseholds, and oil and gas leases. Bank failed. LEC purchased the notes and mortgages from the Federal Deposit Insurance Corporation, and FDIC assigned them to LEC.
LEC sued the two corporations and James P. Dilley, personally, on the notes and to foreclose the mortgages. The action was filed in Payne County District Court because the mortgaged property is located in that county. While that action was pending, James P. Dilley died and his surviving wife was appointed Personal Representative. Upon her death Michael Dilley was appointed the successor Personal Representative. He was substituted as a party defendant in his representative capacity, in the Payne County foreclosure action.
It is undisputed that Notice to Creditors was given to LEC pursuant to statute. Whether LEC filed a creditor's claim in the probate proceeding within the time allowed is not clearly established by the appellate record. The record appears to establish that the Payne County action is pending and is being prosecuted. LEC does not seek a deficiency judgment in the foreclosure action. 2 However, it is clear that LEC did not file an action, after a creditor's claim was denied by a PR in the probate within the time allowed by statute.
LEC filed the petition for accounting in the Tulsa County probate proceeding. PR filed a motion to dismiss. Neither the petition filed by LEC, nor the motion to dismiss filed by PR are in the Appellate record. The order of dismissal is in the record. We must presume the trial court acted properly. FDIC v. Jernigan, 901 P.2d 793 (Okl.1995). Error may not be presumed from a silent record, but must be affirmatively demonstrated by the party seeking a reversal. Nwachuku v. Yellow Cab Co., Inc., 895 P.2d 741 (Okl.App.1995).
However, the record and the briefs of the parties contain sufficient data and admissions to present the basic issue for decision. See Stork v. Stork, 898 P.2d 732, 737 footnote 10. That issue is: Did LEC have standing to file and prosecute its petition for accounting in the probate proceeding. The trial court said "no" and...
To continue reading
Request your trial
-
Murg v. Barnsdall Nursing Home
... ... 2005 OK 74 ... Wilhelm MURG, Jr., individually and as Personal Representative of the Estate of Virginia Murg, deceased, Plaintiff/Appellant, ... BARNSDALL NURSING HOME, an Oklahoma ... In each matter, the Court of Civil Appeals, Division IV, affirmed the trial court's ... orders, to-wit: the ... See, Matter of Estate of Dilley, 1996 OK CIV APP 64, ¶ 9, 919 P.2d 458, 460 (1996)(wherein the court held that ... LEC Capital ... ...
-
Murg v. Barnsdall Nursing Home
... ... 2005 OK 73 ... Wilhelm MURG, Jr., individually and as Personal Representative of the Estate of Virginia Murg, deceased, Plaintiff/Appellant, ... BARNSDALL NURSING HOME, an Oklahoma ... In each matter, the Court of Civil Appeals, Division IV, affirmed the trial court's orders, to-wit: the order that ... See, Matter of Estate of Dilley, 1996 OK CIV APP 64, ¶ 9, 919 P.2d 458, 460 (1996)(wherein the court held that LEC Capital ... ...
-
In re Estate of Geller
...in the property that the testator owned at his death. See Mayweather v. Wallace, 195 Okla. 587, 159 P.2d 529 (1945); In re Estate of Dilley, 1996 OK CIV APP 64, ¶ 8, 919 P.2d 458, ¶ 12 White summarizes her argument on the issue of standing as follows: Upon the death of the decedent, Gertrud......
-
Pollock v. Phillips (In re Phillips)
... ... 846 In re Joy Marie PHILLIPS, Debtor. Tiffany Pollock, Personal Representative of the Estate" of Frederick E. Phillips, Deceased, Plaintiff, v. Joy Marie Phillips, Defendant. Bankruptcy No. 13\xE2\x80" ... However, when one separates the vitriol from the facts, the matter becomes much simpler. So simple, in fact, that summary judgment becomes a real possibility. The ... Stat. tit. 58, § 1(A) (2011) (emphasis added). 26. In re Estate of Dilley, 919 P.2d 458, 460 (Okla.App.Div.1996) (internal citation omitted). 27. See ... ...