OCWEN LOAN SERVICING, LLC, AND FEDERAL HOME LOAN MORTGAGE CORPORATION APPELLANTS
JAMIE T. MICKNA APPELLEE
FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72CV-14-28]
HONORABLE CRISTI BEAUMONT, JUDGE AFFIRMED
Donelson, Bearman, Caldwell & Berkowitz, PC, by: Jay A.
Ebelhar, for appellants.
Miller, Butler, Schneider & Pawlik, PLLC, by: Mason L.
Boling and George M. Rozzell IV, for appellee.
Loan Servicing, LLC (Ocwen), and Federal Home Loan Mortgage
Corporation (Freddie Mac) appeal the June 16, 2016 Washington
County order dismissing their action against Jamie Mickna for
priority determination, rescission, and foreclosure of a
certain mortgage and note secured by property owned by
Mickna. We affirm.
December 2009, Ocwen statutorily foreclosed on certain
Washington County property that was owned by Jamie Mickna and
secured by a mortgage held by Ocwen. Mickna had acquired the
property in 2005. Ocwen was the high bidder at the
foreclosure sale and conveyed its interest to Freddie Mac.
Ocwen then filed an affidavit of rescission in May 2011 to
rescind the original foreclosure and transfer ownership back
in July 2012, Ocwen petitioned for judicial foreclosure. That
action was dismissed without prejudice for insufficient and
ineffective service of process because Ocwen failed to
conduct a diligent inquiry into the whereabouts of Mickna
prior to applying for permission to serve by warning order.
filed a second petition for judicial foreclosure in 2014,
adding Freddie Mac as a party. Mickna filed a motion to
dismiss, arguing that the action was filed beyond the
applicable statute-of-limitations period. Ocwen and Freddie
Mac then amended their complaint. On October 31, 2014, the
circuit court's staff attorney emailed the parties to let
them know that the court had decided to grant Mickna's
motion to dismiss, and directed Mickna's counsel to
prepare an order to that effect. After receiving this email,
but before the judge could review and sign the order, the
appellants filed another amended complaint and removed the
case to federal court. See Ocwen Loan Servicing, LLC v.
Mickna, No. 5:14-CV-05330, 2015 WL 685264 (W.D. Ark.
Feb. 17, 2015).
motion hearing in federal court, however, counsel for Freddie
Mac apparently admitted "that removal was sought because
his client disagreed with Judge Beaumont's decision . . .
[and] desired a second bite at the apple." Id.
Calling it "forum shopping at its worst, " the
federal court remanded the case. Id. Upon remand,
the trial court permitted the appellants to supplement their
response to the motion to dismiss. The trial court then
ultimately denied Mickna's motion.
Mickna served interrogatories on Ocwen and Freddie Mac,
requesting, among other things, the identities of individuals
with knowledge of the matter and the identities of potential
witnesses. Ocwen and Freddie Mac each objected, more or less,
on the ground that the interrogatories were "unduly
burdensome, " and both provided, without waiving any
objections, that Ocwen would designate a corporate witness
"who possesses information relevant to the claims in
was set for February 11, 2016, with discovery due sixty days
prior. The appellants did not supplement their discovery
responses. On December 28, 2015, nonparty Residential Credit
Solutions (RCS) moved to be substituted as a plaintiff and
for a continuance. RCS claimed that Ocwen had transferred the
note in this case to RCS and it needed adequate time to
prepare for trial. The trial was continued to May 19, 2016.
On March 17, 2016, Ocwen and Freddie Mac served supplemental
discovery responses and updated answers. These mirrored the
former, except that they now indicated that yet another third
party, Ditech Financial, LLC (Ditech), was actually servicing
filed a motion to dismiss on April 4, 2016, under Arkansas
Rule of Civil Procedure 41(b) for failure to comply with the
court's discovery deadlines. The same day, nonparty
Ditech and Ocwen jointly moved for another continuance, so
that now Ditech could have time to sufficiently prepare. The
circuit court denied the motion and ordered mediation. Mickna
and a representative from Ditech appeared at the mediation,
but no representative was there on behalf of Ocwen or Freddie
Mac. Mediation was unsuccessful.
morning of trial, counsel for Ocwen and Freddie Mac withdrew
their motion to substitute RCS based on the discovery that
Ocwen had not yet endorsed the note to RCS, and Freddie Mac
and Ocwen were the appropriate plaintiffs all along. The
appellants advised they were ready to proceed in Ocwen's
name but that they would prefer a continuance to allow the
endorsement from Ditech to occur so that Ditech may be
substituted as the proper party. The circuit court denied the
requests and granted Mickna's motion to dismiss.
the action had been dismissed once before, the second
dismissal necessarily operated as a dismissal ...