Mortgage Electronic v. Crutchfield

• Decision Date: 20 July 2006
• Docket Number: No. 101,789.,101,789.
• Citation: 144 P.3d 196,2006 OK CIV APP 95
• Parties: MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., Plaintiff/Appellee, v. Mark CRUTCHFIELD, Defendant/Appellant, and Jane Doe, his spouse, if married; and Occupants of the Premises, Defendants.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

144 P.3d 196

2006 OK CIV APP 95

MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., Plaintiff/Appellee, v. Mark CRUTCHFIELD, Defendant/Appellant, and Jane Doe, his spouse, if married; and Occupants of the Premises, Defendants.

No. 101,789.

Court of Civil Appeals of Oklahoma, Division No. 3.

July 20, 2006.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3.

Appeal from the District Court of Oklahoma County, Oklahoma; Honorable David M. Harbour, Judge.

VACATED AND REMANDED.

Stephen J. Moriarty, Leif Swedlow, Jennifer B. Scott, Andrews Davis, P.C., Oklahoma City, OK, for Plaintiff/Appellee.

Mark Crutchfield, Pro se.

Opinion by KENNETH L. BUETTNER, Chief Judge.

¶ 1 Mortgage Electronic Registration Systems, Inc. (MERS) brought an in rem action July 30, 2002, to foreclose the mortgage on a house located in Oklahoma City. MERS attempted personal service on Mark Crutchfield, as record owner, by certified mail, return receipt requested, with the "restricted delivery" fee paid (but not stamped "restricted delivery") and sent to a Brooklyn, New York address. The green return receipt card bore an illegible signature. Crutchfield did not answer the lawsuit and a default judgment was entered against him November 1, 2002 for $91,933.59 plus interest at 9.125%. Crutchfield claimed he did not sign the green card and that he did not receive notice of the lawsuit. He filed a Petition to Vacate the default judgment September 23, 2003 which the trial court denied. Crutchfield's Motion to Reconsider was also denied. We hold that the Oklahoma County District Court did not have personal jurisdiction over Crutchfield because personal service was not properly effectuated. Therefore we reverse the denial of the Petition to Vacate.

¶ 2 "The standard of review of a trial court's ruling either vacating or refusing to vacate a judgment is abuse of discretion." Ferguson Enterprises, Inc. v. H.Webb Enterprises, Inc., 2000 OK 78, ¶ 5, 13 P.3d 480, 482. With this principle guiding our review, we address Crutchfield's five allegations of error in the order presented.

PROCEEDINGS IN THE WESTERN DISTRICT OF OKLAHOMA

¶ 3 First, Crutchfield contends that the trial court impermissibly relied on an order of the District Court of the Western District of Oklahoma, which the Tenth Circuit subsequently vacated on the ground that the court lacked subject matter jurisdiction. That case is not the case at bar which Crutchfield had removed and then the federal court subsequently remanded. The case Crutchfield complains of is a different case in which he sued not only MERS, but Countrywide Home Loans as well. That case had a different number, 03-CIV-110-F, from the case on remand, 03-CIV-645-F. That case is not before this court. Further, there is no evidence that the Oklahoma district court relied on a collateral federal court order in making its decision. We presume that the case on remand proceeded properly. The parties do not tell us differently. There is no error on this account.

PERSONAL JURISDICTION

¶ 4 Crutchfield's second contention of error, that the trial court failed to acquire personal jurisdiction over him because of failure of service of process, is well taken. "A default judgment is void if the court did not have jurisdiction over the parties." Ferguson Enterprises, Inc. v. H. Webb Enterprises, Inc., 2000 OK 78, ¶ 5, 13 P.3d 480, 482. "If the record does not reflect that personal service has been made on the defendant, the court lacks in personam jurisdiction over the defendant and any default judgment rendered thereon is void and subject to vacation." Id. at ¶ 11, p. 483.

¶ 5 Title 12 O.S.2001 § 2004(C)(2)(c) provides:

Service by mail shall not be the basis for the entry of a default or a judgment by default unless the record contains a return receipt showing acceptance by the defendant or a returned envelope showing refusal of the process by the defendant. Acceptance or refusal of service by mail by a person who is fifteen (15) years of age or older who resides at the defendant's dwelling house or usual place of abode shall constitute acceptance or refusal by the party addressed. In the case of an entity described in division (3) of subparagraph c of paragraph 1 of this subsection, acceptance or refusal by any officer or by any officer or by any employee of the registered office or principal place of business who is authorized to or who regularly receives certified mail shall constitute acceptance or refusal by the party addressed. A return receipt signed at such registered office or principal place of business shall be presumed to have been signed by an employee authorized to receive certified mail.

* * *

If delivery of the process is refused, upon the receipt of notice of such refusal and at least ten (10) days before applying for entry of default, the person elected by plaintiff pursuant to subparagraph a of this paragraph to serve the process shall mail to the defendant by first-class mail a copy of the summons and petition and a notice prepared by the plaintiff that despite such refusal the case will proceed and that judgment by default will be rendered against him unless he appears to defend the suit. Any default or judgment by default shall be set aside upon motion of the defendant in the manner prescribed in Section 1031.1 of this title if the defendant demonstrates to the court that the return receipt was signed or delivery was refused by an unauthorized person. A petition shall be filed within one (1) year after the defendant has notice of the default or judgment by default but in no event more than two (2) years after the filing of the judgment. (Emphasis added.)

¶ 6 Crutchfield filed his Motion to Vacate September 22, 2003 alleging 12 O.S.2001 § 1031(2)(4) and (9) grounds: that he did not have actual notice of the pendency of the action at the time of the filing of the judgment or order; fraud exercised by the successful party (because MERS knew of his attempt to rescind the mortgage pursuant to the federal Truth in Lending Act); and for taking a judgment upon warrants of attorney for more than was due. The Journal Entry of Judgment recites that the "... Court finds that the Defendants, Mark Crutchfield a/k/a Mark E. Crutchfield and Jane Doe, his spouse, if married, were personally served with summons in the manner required by law and have failed to answer, otherwise plead or appear herein. The Court approves the services as meeting the statutory requirements and the Defendants are in default and are hereby adjudged to be in default." Crutchfield filed his Motion to Reconsider March 22, 2004 restating that he did not sign the green card, that the mailing was not "restricted," that the mailing was to a commercial mailbox service, not an abode or dwelling, and was signed by someone not authorized by him to receive service. He realleged MERS' fraud. The motion was denied May 28, 2004.¹

¶ 7 We find that the judgment roll reveals that Crutchfield did not sign the green card. MERS admits in its Answer Brief that someone besides Crutchfield signed the green card.² In addition, MERS had exemplars of Crutchfield's signature. He had sent letters of rescission to MERS and Country Wide Homes two weeks before entry of the default judgment. These letters contained his signature which in no way resembles that on the green card. The green card, although the restricted fee was paid, was not stamped "restricted." Crutchfield, representing himself, signed his Petition to Vacate. A comparison of Crutchfield's signature on court pleadings with the signature appearing on the receipt card demonstrates the difference in signatures. Crutchfield also showed that the address was not a dwelling place. As a result of lack of service, the court did not have jurisdiction over Crutchfield and the default judgment is void. These conclusions we draw from the judgment roll which is comprised of the "... petition, process, and return, as well as pleadings, reports, verdicts, orders, and judgments." Washington Mutual Bank FA v. Farhat Enterprises, Inc., 2003 OK CIV APP 78, ¶ 16, 77 P.3d 1103, 1109, citing Elliott v. City of Guthrie, 1986 OK 59, ¶ 7, n. 8, 725 P.2d 861, 863, n. 8.

¶ 8 However, because Crutchfield filed a Motion to Vacate which included a "nonjurisdictional" ground, that is in this case, § 1031(4) "For fraud, practiced by the successful party, in obtaining a judgment or order," (fraud in the procurement), MERS contended that he made a general appearance and waived objection to lack of jurisdiction over his person. MERS cites Geo. O. Richardson Machinery Co. v. Scott, 276 U.S. 128, 133, 48 S.Ct. 264, 72 L.Ed. 497 (1928), for Oklahoma's rule that since its founding:

... it has been the settled law of Oklahoma that, where a person against whom a judgment is rendered files a petition to vacate the judgment upon the ground that the court had no jurisdiction of the defendant, and the petition is based also on nonjurisdictional grounds, such as those mentioned in subparagraphs fourth and seventh of section 810, the filing of the petition operates as a voluntary general appearance, with the same effect as if such appearance had been made at the trial.

¶ 9 MERS also cites Mobley v. State ex rel. Commissioners of Land Office, 1947 OK 49, ¶ 25, 177 P.2d 503, 507 for an explanation of the rule "... that where a judgment is rendered without service or notice to defendants, who thereafter file a motion to vacate the same, alleging both jurisdictional and nonjurisdictional grounds thereby making a general appearance, the effect of which waives all defects in the citation or notice, and cures any defect in the judgment existing by reason of lack of service of summons or other notice. The reason of the rule is that a person should not be permitted to challenge the jurisdiction of the court over him, and at the same time invoke its jurisdiction by asking relief."

¶ 10 However, Griffin v. Jones, 1914 OK 615...