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Wilson v. Arvest Bank

Court of Appeals of Arkansas, Division I

April 22, 2015

STEVEN J. WILSON and CHRISTINA R. WILSON, APPELLANTS
v.
ARVEST BANK, APPELLEE

APPEAL FROM THE BENTON COUNTY CIRCUIT COURT. NO. CV-2014-350-6. HONORABLE DOUG SCHRANTZ, JUDGE.

W. Marshall Prettyman, Legal Aid of Arkansas, for appellants.

Stockland & Trantham, P.A., by: Charles S. Trantham, for appellee.

CLIFF HOOFMAN, Judge. VAUGHT and BROWN, JJ., agree.

OPINION

Page 836

CLIFF HOOFMAN, Judge

Appellants Steven Wilson and Christina Wilson appeal from the Benton County Circuit Court's August 21, 2014 decree of foreclosure and order granting motion for summary judgment in favor of appellee Arvest Bank.[1] On appeal, appellants

Page 837

contend that (1) the trial court erred in granting summary judgment as there were contested issues of fact and the appellants met proof with proof and (2) the trial court erred in finding that appellee had complied with the federal statutes and regulations protecting homeowners on foreclosure. We affirm.

Arvest Bank filed a petition for foreclosure on March 13, 2014, naming Steven J. Wilson, Jr.; Christina R. Wilson; James Alan Crouse; and the Department of Finance and Administration, State of Arkansas (DF& A) as respondents.[2] The petition alleged that the Wilsons and Crouse owned the property in question as joint tenants with right of survivorship. They executed and delivered an adjustable-rate note and mortgage on September 22, 2008. Arvest Bank further alleged that they failed to pay the installments on time and that it was electing to declare the unpaid balance due in full and foreclose on the property pursuant to the terms of the note and mortgage. Additionally, Arvest Bank alleged that it gave written notice of the default and the right to cure the default. Arvest Bank stated that it was naming DF& A as a respondent to the extent that DF& A may have had an inferior interest in the property. Copies of the note and mortgage were attached to the petition.

The Wilsons filed an answer on March 28, 2014, affirmatively pleading that after receiving notice, they tendered the payments due but were refused. Additionally, they raised the " affirmative defenses of estoppel, unclean hands, bad faith, failure to provide notice of services pursuant to 12 U.S.C. 1701x and such other defenses as may be ascertained through discovery." DF& A filed an answer on April 9, 2014, stating that it had no interest in this matter and requesting that the action be dismissed as to it without prejudice. Arvest Bank responded to requests for admission on May 7, 2014. Most notably, Arvest Bank denied that appellants attempted to make any partial payments to reduce the amount of arrearages owed or that appellants were unable to obtain a definite amount that was owed.

On May 27, 2014, Arvest Bank filed a motion for summary judgment and memorandum of supporting authorities. Arvest Bank alleged that there were no genuine issues of material fact in dispute and that it was entitled to judgment as a matter of law. In support, it attached an affidavit from Vicki Smith, the President of Arvest Bank, and copies of the note and mortgage. Smith stated in her affidavit that the Wilsons and Crouse executed a note and mortgage. Furthermore, they defaulted in making their payments despite the demand that they do so. As of May 16, 2014, $41,086.07 for principal, $908.68 for interest, $262.57 for late fees, and $119.00 for property inspections were outstanding. Additionally, Smith stated that the bank was also entitled to attorney's fees in the amount of $5,966.50, title-work fees in the amount of $250.00, filing fees in the amount of $180.00, and service fees in the amount of $53.16.

Appellants filed a response to the motion for summary judgment on June 10, 2014. They disputed appellee's contention that there were no issues of ...


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