Bank of Commerce v. Breakers, L.L.C.
2011 OK CIV APP 45
| Okla. Civ. App. | 2011Background
- Movants/Jins and Bank of Oklahoma sought to intervene in a consolidated foreclosure action over Lot 18, Villas at Shangri-La Resort.
- A lis pendens was recorded May 26, 2009 against Lot 18, affecting subsequent interests.
- The Jins signed a Feb 12, 2009 purchase contract and closed June 4-5, 2009; BOK financed and recorded mortgages June 5, 2009.
- BOC and RCB filed separate foreclosure petitions on mortgages on Lots 12-18; their cases were consolidated Nov 4, 2009.
- The trial court denied intervention; on de novo review the court held the Jins had no pre-lis pendens interest and Appellants’ interest was void as to prevailing parties; Appellants’ intervention was untimely.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Intervention right based on statute | Jins/BOB claim right to intervene under 12 O.S.2001 § 2024(A) | BOC contends Appellants lack exercisable right since lis pendens voids later interests | Appellants lacked right to intervene. |
| Effect of lis pendens on equitable interests | Jins/BOB assert equitable title from contract before lis pendens | Foreclosing banks relied on lis pendens to bar new interests | Lis pendens control; no pre-lis pendens equitable title protected. |
| Timeliness of intervention | Intervention attempted nearly a year after summary judgment | Motion untimely; notice given by lis pendens bound Appellants | Intervention untimely. |
Key Cases Cited
- Alfrey v. Richardson, 204 Okla. 473, 231 P.2d 363 (1951) (contract for deed distinctions; equitable title not protected here)
- Wells Fargo Credit Corp. v. Selby, 26 P.3d 774 (Okla. Civ. App. 2001) (tax certificate scenario; lis pendens not controlling in that statutory scheme)
- First Mustang State Bank v. Garland Bloodworth, Inc., 825 P.2d 254 (1991 OK 65) (equitable conversion limited to privity; not extendable to others)
- Hart v. Pharaoh, 359 P.2d 1074 (Okla. 1961) (notice of lis pendens binds successors in interest)
- Thompson v. General Outdoor Advertising Co., 151 P.2d 379 (Okla. 1944) (purchasers on notice of action against title)