553 S.W.3d 151
Ark. Ct. App.2018Background
- Centennial Bank filed a foreclosure complaint May 1, 2017, against the administrator of Margaret’s estate, Dwight C. Jones (administrator and co-owner), and the Commissioner of State Lands seeking judgment on arrearages and foreclosure of a mortgage.
- Dwight was personally served with the complaint on May 12, 2017, and timely filed a pro se answer on June 12, 2017, asserting ownership, payments made, and requests for loan papers.
- A foreclosure hearing occurred July 14, 2017; the record contains no notice sent to Dwight and he did not attend. The court heard testimony from the bank’s witness and entered a foreclosure decree that same day.
- Dwight filed a post-decree filing July 19, 2017, asserting he had not been notified of the hearing and asking the court to stop proceedings; the filing was treated as a Rule 60 motion and deemed denied by operation of law August 18, 2017.
- Dwight filed a notice of appeal August 14, 2017 (treated as filed August 19, 2017 under Ark. R. App. P.-Civ. 4(b)). The Court of Appeals reversed and remanded, holding Dwight’s due-process right to notice was violated and declining to address his other arguments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Dwight was denied due process by lack of notice of the foreclosure hearing | Dwight: No notice; thus he was deprived of opportunity to be heard | Centennial: Issue not preserved on appeal because Dwight failed to amend notice of appeal after his postjudgment motion | Court: Reversed — foreclosure decree entered after a hearing of which Dwight had no notice, violating due process; appeal preserved under Jones rationale |
| Whether the bank pleaded waiver of right of redemption | Dwight: Bank failed to plead waiver of redemption | Bank: Did not contest preservation here | Not reached — court reversed on due-process grounds, did not decide |
| Whether Centennial complied with 12 C.F.R. § 1024.36 (RESPA/TILA servicing rule) | Dwight: Bank failed to comply with required procedures | Bank: Did not prevail on preservation argument; compliance dispute not decisive | Not reached — court reversed on due-process grounds, did not decide |
| Whether the note/security agreement contained a legal description of the property | Dwight: Instruments lacked legal description invalidating foreclosure | Bank: Alleged legal description in complaint and foreclosure pleadings | Not reached — court reversed on due-process grounds, did not decide |
Key Cases Cited
- Parker v. BancorpSouth Bank, 369 Ark. 300 (bench-trial standard and clearly erroneous rule)
- Tsann Kuen Enters. Co. v. Campbell, 355 Ark. 110 (due-process ‘‘meaningful opportunity to be heard’’ requirement)
- Jones v. Vowell, 99 Ark. App. 193 (lack of notice to party who did not attend hearing warranted reversal)