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Edgerly v. Vanderbilt Mortgage & Finance, Inc.

Court of Appeals of Arkansas, Division III

May 4, 2016

NANCY EDGERLY APPELLANT
v.
VANDERBILT MORTGAGE & FINANCE, INC. APPELLEE

APPEAL FROM THE SEARCY COUNTY CIRCUIT COURT [NO. 65CV-13-36] HONORABLE MIKE MURPHY, JUDGE

Mullenix & Reardon, P.A., by: D. Ryan Mullenix, for appellant.

Dyke & Winzerling, P.L.C., by: Mitchel L. Berry, for appellee.

BART F. VIRDEN, JUDGE

Nancy Edgerly appeals from the Searcy County Circuit Court order granting summary judgment to Vanderbilt Mortgage & Finance, Inc. (Vanderbilt), and the resulting order for delivery of two mobile homes. We affirm. Vanderbilt filed a motion to dismiss the appeal, which we grant in part.

I. Facts

In October 1998, Nancy Edgerly purchased a mobile home from Daily Investments and financed it through Vanderbilt Mortgage. She used the mobile home as collateral. In December 1998, she bought another mobile home from Daily Investments and again used Vanderbilt Mortgage to finance the home and used the second home as collateral. Edgerly defaulted on her payments, and Vanderbilt accelerated the debt. On September 4, 2013, Vanderbilt filed a petition for order of delivery. Vanderbilt attached its complaint and an affidavit for possession to the petition. In its complaint, Vanderbilt argued that it had an immediate right to possession.

Edgerly filed a motion to dismiss Vanderbilt's complaint on October 2, 2013, asserting that the summons set forth "that the defendant has thirty days to file an answer but contradicts itself with a 5-day notice." Vanderbilt responded to the motion, stating the 120-day time limit for service had not yet passed, so Edgerly's motion to dismiss was premature. Vanderbilt also responded that the summons complied with Rule 4 by giving Edgerly thirty days to file an answer, and it also complied with Arkansas Code Annotated section 18-60-808, which governed the action and imposed a five-day deadline to file a written objection to the petition for order of delivery. Edgerly filed an objection to Vanderbilt's petition for delivery on October 16, 2013. Edgerly filed an answer/motion to dismiss the complaint/affidavit for possession and another objection to the petition for order of delivery on October 18, 2013. The circuit court did not rule on any of these motions.

Vanderbilt filed a motion for summary judgment on January 10, 2014, asserting that there was no question of fact as to Edgerly's default on the installment contracts for the homes and that there was no question that Vanderbilt was entitled to possession of the homes. Edgerly responded on January 27, 2014, and argued that Vanderbilt had not included all the necessary documents showing that the security agreement had been assigned to First Merit Bank (also Signal Bank) and that the security agreement had been perfected; thus, Vanderbilt could not bring the suit. Vanderbilt responded by attaching a copy of the loan purchase agreement between it and First Merit Bank. Vanderbilt also included a blanket assignment and bill of sale.

Edgerly appeared pro se at the February 25, 2015 hearing on the motion for summary judgment. At the hearing, Edgerly argued that the documents Vanderbilt attached "seemed incomplete, " "iffy, " and "muddled looking." She asserted that the loan had been transferred several times and that she questioned whether Vanderbilt could prove ownership. The circuit court took the matter of the sufficiency of Vanderbilt's proof of assignment under advisement, and it allowed Edgerly five days to supplement the record as needed.

Around March 6, 2015, Edgerly sent a posthearing letter to the circuit court in which she explained that she had attached documents and certificates of title that demonstrated Vanderbilt had not perfected title and had only made a "lame attempt" at creating a chain of title for the mobile homes. Edgerly urged the court to compare signatures and observe other discrepancies in the documents that she alleged proved the documents had been falsified.

On March 11, 2015, the circuit court entered an order granting Vanderbilt's motion for summary judgment. In its order, the circuit court specifically found "that the documents contained in the original complaint as well as those referenced in the reply to response to the motion for summary judgment indicate sufficient proof of assignment to Vanderbilt."

On March 18, 2015, Vanderbilt sent a proposed order of delivery to the circuit court for its approval. Vanderbilt also sent a copy to Edgerly. In an attached letter, Vanderbilt stated, "Pursuant to the court's order granting plaintiff's motion for summary judgment, a precedent is therefore presented which will allow Vanderbilt to proceed with the repossession of its collateral, the manufactured homes." The order for delivery was entered on March 25, 2015, and set forth that, pursuant to the March 11, 2015 order, Vanderbilt was entitled to an order for delivery of the trailers and that the requirement that Vanderbilt post a bond for delivery had been waived.

On March 31, 2015, Edgerly filed a motion to quash the March 25, 2015 order for delivery. Edgerly argued that she had not been properly served with the proposed order, that she would have objected to the waiver of the bond requirement if she had received proper service and if she had been informed that she could ...


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