Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Brown v. United Bank

Court of Appeals of Arkansas, Division III

November 12, 2014

HOMER EUGENE BROWN AND TAMMY LYNN BROWN, APPELLANTS
v.
UNITED BANK ET AL., APPELLEES

Page 727

APPEAL FROM THE BENTON COUNTY CIRCUIT COURT. NO. CV-12-2280. HONORABLE BRADLEY LEWIS KARREN, JUDGE.

Don Brady, for appellants.

Taylor Law Partners, LLP, by: William B. Putman, for appellees.

LARRY D. VAUGHT, Judge. GLOVER and WOOD, JJ., agree.

OPINION

Page 728

LARRY D. VAUGHT, Judge

This is a foreclosure case. On January 23, 2014, the Circuit Court of Benton County entered three orders: one denying the motion to set aside a foreclosure sale filed by appellants, Tammy and Homer Brown; a second setting a hearing on surplus funds; and a third confirming the foreclosure sale. On January 31, 2014, the trial court entered an amended order confirming the foreclosure sale. On February 6, 2014, the Browns filed a notice of appeal, arguing that the trial court abused its discretion in failing to set aside the foreclosure sale and that the trial court erred in failing to enforce an oral contract between the Browns' counsel and counsel of separate appellee, United Bank. We dismiss for lack of jurisdiction.

On June 20, 2012, the Browns executed a promissory note in favor of United Bank in the amount of $44,809.62. That same day, the Browns executed a mortgage on their home and real property in favor of United Bank to secure the loan. When the Browns defaulted on the loan, United Bank filed a foreclosure complaint and an amended foreclosure complaint against the Browns (and others with purported interests in the property), alleging that the Browns were in default on the loan and owed United Bank $47,083.89 plus interest. United also alleged that the Browns owed it $26,327.18 in insurance proceeds resulting from a homeowner's claim. The Browns answered the foreclosure complaint and filed a counterclaim against United Bank, alleging predatory-mortgage servicing, breach of fiduciary duty, abuse of process, civil conspiracy, constructive fraud, and violations of the Arkansas Deceptive Trade Practices Act.

On October 1, 2013, the trial court entered an agreed decree of foreclosure and dismissal of the counterclaim following an August 5, 2013 hearing. In relevant part, the decree stated that United Bank was entitled to judgment against the Browns in the amount of $71,496.64 plus interest; that United Bank would refrain from conducting a Commissioner's sale of the real property for sixty days; that the Browns had sixty days from the date of the agreed decree to tender the total amount of the judgment and upon tender United Bank would convey the property to the Browns; that if the Browns failed to pay United Bank the judgment, then United Bank could conduct a public sale through the Commissioner; that United Bank's right to foreclose was absolute on the sixtieth day after the agreed decree of foreclosure; and that the Browns' counterclaim was dismissed with prejudice.

The Browns did not tender payment to United Bank within the sixty-day period. On November 18, 2013, United Bank filed a notice of a commissioner's sale. The

Page 729

notice stated that the sale of the Browns' property would be held at 10:00 a.m. on December 16, 2013. On November 25, 2013, United Bank published notice of the December 16, 2013 sale in the Northwest Arkansas Newspapers.

The foreclosure sale was held December 16, 2013. Neither the Browns nor their counsel attended the sale. The Browns' property was purchased by KSBD, LLC, and Shane Miller for $135,000. On December 26, 2013, the Browns filed a motion to set aside the foreclosure sale. After a hearing on the Browns' motion,[1] the trial court denied the Browns' motion to set aside the foreclosure sale. Thereafter, on January 23, 2014, the trial court entered three separate orders (1) denying the Browns' motion to set aside the sale and granting the purchasers' motion to intervene; (2) setting a hearing on the surplus funds from the sale; and (3) confirming the foreclosure sale. The order confirming the sale listed KSBD, LLC, as the sole purchaser of the Browns' property--but it did not include Shane Miller. On January 31, 2014, the trial court entered an amended order confirming the foreclosure sale. The amended order added Shane Miller, along with KSBD, LLC, as purchaser of the Browns' property. The Browns filed a notice of appeal on February ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.