FROM THE JEFFERSON COUNTY CIRCUIT COURT [NO. 35CV-15-124]
HONORABLE ROBERT H. WYATT, JR., JUDGE
Kearney Law Offices, by: Julius D. Kearney, Sr., for
& Associates, P.L.L.C., by: H. Keith Morrison, for
and Rhonda Coleman appeal the November 21, 2016 and November
30, 2016 Jefferson County Circuit Court orders denying their
Arkansas Rule of Civil Procedure 60(c) motion for relief from
judgment. We affirm.
2007, the Colemans executed a mortgage with Wells Fargo Bank
N.A., for $252, 350 on their Jefferson County property. The
mortgage was later assigned, and reassigned, until the
appellee (Wilmington) held it. On March 12, 2015, Wilmington
filed a complaint against the Colemans alleging that they
were in default on the mortgage. The Colemans answered and
affirmatively pled the statute of limitations, stating that
they had not made payments toward the mortgage since
September 2009 and that Wilmington was thus time-barred from
bringing suit in foreclosure.
filed a motion for summary judgment and attached an affidavit
of debt prepared by one of its asset managers. The affidavit
provided that the last two payments toward the mortgage were
made on March 29 and August 23, 2010, for $1524.44 and
$1156.36, respectively. The Colemans replied and did not
assert there was any dispute of material fact. They asked
that the plaintiff's motion be decided "as a matter
in favor of Wilmington's motion for summary judgment, the
court entered a decree of foreclosure on April 11, 2016. The
Colemans filed a motion for reconsideration on April 22,
2016. The trial court ruled on the motion for reconsideration
in an order dated June 20, 2016, although it had been deemed
denied almost a month prior, and the Colemans filed their
first notice of appeal five days too late on June 27, 2016.
August 1, 2016, the Colemans filed a motion for relief from
judgment pursuant to Arkansas Rule of Civil Procedure 60(c),
alleging that (1) fraud had occurred and (2) their underlying
meritorious defense was that Wilmington was time-barred from
bringing the foreclosure action under the relevant statute of
limitations. The Colemans alleged that the statements by the
asset manager in the affidavit of debt were fraudulent
because they had not made a payment toward the note since
2009. They included bank records and an affidavit of Rhonda
Coleman in support of their allegations.
though the court had not yet ruled on their Rule 60 motion,
the Colemans filed a second notice of appeal on September 26,
2016, asserting that their motion had been denied. On October
3, 2016, the Colemans filed a motion with our supreme court
to supplement their record with the new documents and for a
rule on clerk. The supreme court denied the motion to
supplement and closed the Coleman's case, because (1) the
first notice of appeal was not timely and (2) the second
notice of appeal was premature.
November 21, 2016, the circuit court denied the Colemans'
August Rule 60 motion, and the Colemans filed a motion for
reconsideration a week later. The court denied that motion on
November 30, 2016, finding that the August motion was
"without merit and untimely." This appeal follows.
narrow issue before this court today is whether the circuit
court erred in denying the Colemans' Rule 60 motion
alleging that Wilmington had committed fraud in obtaining the
judgment of foreclosure against them.
60(c)(4) of the Arkansas Rules of Civil Procedure authorizes
the trial court to modify or vacate an order, at any time,
for fraud practiced by the successful party in obtaining the
judgment. First Nat'l Bank of Lawrence Cty. v.
Higginbotham Funeral Serv., Inc., 36 Ark.App. 65, 68-69,
818 S.W.2d 583, 585 (1991). The fraud for which a decree will
be canceled must consist in its procurement and not merely in
the original cause of action. Id. The party seeking
to set aside the judgment has the burden of showing that the
judgment was obtained by fraud, and the charge of fraud must
be sustained by clear, strong, and satisfactory proof.
Id. We review a circuit court's denial of a
motion to vacate for an abuse of discretion.
Wilmington's affidavit of debt, the asset manager
attested that he had reviewed the business and loan records,
the Colemans had defaulted under the terms of the note and
the mortgage, and "[t]he last two payments received from
the [Colemans] were the ...