330 S.W.3d 763
Ky. Ct. App.2011Background
- Foreclosure action against Arrozes began in March 2004 by Whitaker Bank; default judgment and an order of sale followed.
- Arrozes were served notice of the master commissioner sale scheduled for September 27, 2005; they filed bankruptcy, staying proceedings until August 10, 2005.
- An order of sale and referral to the master commissioner for judicial sale were entered August 12, 2005; sale notice was served August 31, 2005.
- Property was sold to Greer on September 27, 2005; a report of sale was filed October 7, 2005 and the Arrozes were advised to file exceptions.
- Arrozes did not pursue judicial relief for personal property prior to Greer’s possession; the case remained active until final distribution in 2008.
- The trial court awarded $6,000 for carpet and ordered the remaining items returned; Greer kept or disposed of the rest.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Arrozes abandoned personal property on the premises. | Arrozes preserved ownership and sought relief timely. | Arrozes abandoned property by not acting and delays were justified by sale process. | Abandonment found; Arrozes relinquished possession and ownership. |
Key Cases Cited
- Kelley v. Nationwide Auto Restoration, LLC, 246 S.W.3d 470 (Ky.App.2007) (ownership of abandoned property vesting by possession and intent)
- Ellis v. McCormack, 218 S.W.2d 391 (Ky.1949) (elements of abandonment: voluntary relinquishment and intent)
- Ellis v. Brown, 177 F.2d 677 (6th Cir.1949) (abandonment definition and expectations)
- Smith v. Decker, 374 S.W.2d 487 (Ky.App.1964) (finality of judicial sale rights as to property on premises)
- Denison v. McCann, 197 S.W.2d 249 (Ky.1946) (laches as unreasonable delay defeating claims)
- Plaza Condominium Ass'n, Inc. v. Wellington Corp., 920 S.W.2d 51 (Ky.1996) (laches analysis and equitable considerations)