SMS Financial L.L.C. v. Ragland
| Decision Date | 26 December 1995 |
| Docket Number | No. 86256,No. 4,86256,4 |
| Citation | 1995 OK CIV APP 160,918 P.2d 400 |
| Parties | 1995 OK CIV APP 160 SMS FINANCIAL L.L.C., an Arizona limited liability company, Appellee, v. James A. RAGLAND, an individual; American Timber Products, Inc. d/b/a Red River Lumber Company, an Oklahoma corporation; and Bayless E. Kirtley, an individual, Appellants. Court of Appeals of Oklahoma, Division |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
This appeal was assigned to the accelerated docket pursuant to Civil Appellate Procedure Rule 1.203(A)(1)(a), 12 O.S.Supp.1994, ch. 15, app. 2. The defendants appeal the order of the trial court which: 1) overruled defendant Ragland's motion for new trial, and, 2) granted summary judgment to the plaintiff.
The standard of review of a summary judgment granted pursuant to District Court Rule 13, 12 O.S.Supp.1994, ch. 2, app., is whether the facts, inferences, and conclusions, viewed in the light most favorable to the party opposing the motion, are such that reasonable men, in the exercise of fair and impartial judgment, might reach differing conclusions from those facts. If so, the motion must be denied. White v. Wynn, 708 P.2d 1126 (Okla.1985). The standard of review of a trial court's order overruling a motion for new trial is whether the court abused its discretion. Smith v. Pierce, 843 P.2d 391 (Okla.Ct.App.1992); Gearhart Industries v. Grayfox Operating, 829 P.2d 1005 (Okla.Ct.App.1992).
On February 7, 1994, SMS Financial, (SMS) filed a petition to foreclose a mortgage issued by American Timber Products, Inc., d/b/a Red River Lumber Company (Red River) 1 to secure a promissory note issued by James Ragland (Ragland). The note and mortgage were issued to Union Bank and Trust. Union Bank failed, and the note and mortgage were transferred to the FDIC on March 31, 1988, which in turn sold and assigned the note and mortgage to SMS Financial on October 1, 1993.
Defendant Bayless Kirtley's answer states he received title to the property by a quit claim deed from Red River on December 30, 1992. Kirtley's answer contained a counterclaim, stating that the maturity date of the notes 2 given by Ragland to Union Bank matured May 1, 1988. Accordingly, Kirtley claims the applicable statute of limitations is five years, pursuant to 12 O.S.1991 § 95 (First). Because SMS filed suit on February 7, 1994, Kirtley claims SMS's petition was untimely.
Defendant Ragland filed a motion to quash the service obtained on him. He presented affidavits that he was never personally served, as stated in the return of service. Ragland later filed an answer to SMS's petition, raising the defenses of insufficient service of process and the statute of limitations.
American Timber Products, Inc, d/b/a Red River Lumber Company, failed to file any answer or other responsive pleading.
On June 10, 1994, SMS moved for summary judgment against Kirtley on his counterclaim. Kirtley responded by claiming the proper statute of limitations was five years under Oklahoma law, but argued in the alternative that while 12 U.S.C.A. § 1821 may allow the FDIC to invoke a six-year statute of limitations, by its very terms, § 1821 pertains exclusively to the FDIC, not an assignee of the FDIC, such as SMS. This motion was overruled by the trial court on August 26, 1994, to allow the parties to conduct further discovery.
In an unrecorded hearing on December 9, 1994, the trial court conducted an evidentiary hearing on Ragland's motion to quash, and subsequently overruled it. Ragland sought a new trial January 27, 1995.
On May 4, 1995, SMS moved for summary judgment against all defendants.
On August 25, 1995, a judgment was filed overruling Ragland's motion for new trial, and granting SMS's summary judgment against all defendants. The court noted American Timber Inc. d/b/a Red River Lumber Company was in default, and granted summary judgment against it. The court entered a money judgment against Ragland in favor of SMS, and determined the interest of SMS in the mortgaged real estate was superior to that of Kirtley. The court ordered the mortgage foreclosed and the property sold at auction.
The issues raised in the defendants' motion for new trial and preserved on appeal concern the applicable statute of limitations and the validity of service obtained upon Ragland.
We first address the statute of limitations issue to determine if SMS's petition is timely. SMS is the assignee of the FDIC, the receiver of Union Bank's rights and interests in the real property. Therefore, we first look to the applicable statute of limitations pertaining to receivers.
The applicable statute is 12 U.S.C.A. § 1821(d)(14)(A) and (B).
(14) Statute of limitations for actions brought by conservator or receiver.
Notwithstanding any provision of any contract, the applicable statute of limitations with regard to any action brought by the Corporation as conservator or receiver shall be--
(i) in the case of any contract claim, the longer of--
(I) the 6-year period beginning on the date the claim accrues; or
(II) the period applicable under State law.
For purposes of subparagraph (A), the date on which the statute of limitation begins to run on any claim describe in such subparagraph shall be the later of--
(i) the date of the appointment of the Corporation as conservator or receiver; or
(ii) the date on which the cause of action accrues.
The defendants claim that the six-year statute of limitations applies only to the original receiver, i.e. the FDIC, but not to an assignee of the FDIC, such as SMS. Because this statute does not apply, the defendants argue the court must use the five-year statute of limitations available under state law, which began to run when the note was due. The defendants cite Federal Debt Management, Inc. v. Weatherly, 842 S.W.2d 774 (Tex.Ct.App.1992), in support of this proposition.
SMS, on the other hand, citing Mountain States Financial Resources Corporation v. Agrawal, 777 F.Supp. 1550 (W.D.Okla.1991), argues that the six-year statute does apply to assignees of the receiver.
Our review of the case law which has dealt with this issue indicates that Mountain States is in accord with the majority of the reported decisions on this issue....
To continue reading
Request your trial
-
Bruin Holdings, Inc. v. Moderski
...Neb. 538, 501 N.W.2d 271 (1993); Investment Co. of the Southwest v. Reese, 117 N.M. 655, 875 P.2d 1086 (1994); SMS Financial L.L.C. v. Ragland, 918 P.2d 400 (Okla.Ct.App.1995), cert. denied, Okla. (1996), cert. denied, ___ U.S. ____, 117 S.Ct. 190, 136 L.Ed.2d 127 (1996); Jackson v. Thweatt......
-
Federal Financial Co. v. Gerard
...521; Twenty First Century Recovery, Ltd. v. Mase, 279 Ill.App.3d 660, 216 Ill.Dec. 513, 665 N.E.2d 573 (1996); SMS Fin. L.L.C. v. Ragland, 918 P.2d 400 (Okla.App.1995), cert. denied, 519 U.S. 872, 117 S.Ct. 190, 136 L.Ed.2d 127 (1996); N.S.Q. Assocs. v. Beychok, 659 So.2d 729 (La.1995); Thw......
-
Professional Collection Consultants v. Hanada
...158, 864 P.2d 718, 720; Investment Co. of the Southwest v. Reese (1994) 117 N.M. 655, 875 P.2d 1086, 1092-1093; SMS Financial L.L.C. v. Ragland (Okla.App.1995) 918 P.2d 400, 403; Jon Luce Builder, Inc. v. First Gibraltar Bank (Tex.App.1993) 849 S.W.2d 451, 455; Thweatt v. Jackson (Tex.App.1......
-
Oklahoma Transp. Authority v. Turner
...appeal. STANDARD OF REVIEW ¶ 7 We review a trial court's denial of a motion for new trial for an abuse of discretion. SMS Fin. L.L.C. v. Ragland, 1995 OK CIV APP 160, ¶ 2, 918 P.2d 400, 402. Such an abuse will be found only where the Trial Court makes a "clearly erroneous conclusion and jud......