*1 granted The trial court’s decision which summary judgment supported for BOK is state, the law of as well as decision is federal statutes. The affirmed. REIF, JJ., BACON and concur. Fredericka A. MEHOJAH
William wife, Mehojah, husband and L.
Appellants, Oberfell, MOORE, H. H. Robert
John Oberfell, Thur and Frank M. Darlene County, Appel
man, of Tulsa Sheriff
lees.
No. 65911. Appeals
Court No.
Division 2, 1987.
June
Rehearing Denied June 20, 1987. Denied Oct.
Certiorari *2 in the office of the
deed was recorded County on March 31. Tulsa Clerk 18, deficiency judgment April was On Moore and the entered for Oberfells general against McCurry, from which exe- 19, August 1985, issue. On cution could against they filed an execution the Meho- property, claiming by a lien jahs’ virtue judgment against their earlier McCurry. Mehojahs against The filed this action Straub, Robert E. Parker and Bruce G. September Moore Oberfells on and the
Associates, Tulsa, appellants. for (11), quiet to “Lot Eleven Block One to title Tulsa, appellees. Morrissey, Linda G. I, (1), MINSHALL PARK An Addition to Tulsa, City County, Tulsa State of OPINION Oklahoma,” temporary and for a restrain- prevent ing injunction order and to STUBBLEFIELD, Judge. property sheriff’s sale of that scheduled summary judg- appeal from a This is an sought September They 26. further to quiet in an action to ment for Defendants attempts enjoin any further to execute on restraining order to title and denial of temporary restraining A or- property. real prevent the sale of Plaintiffs’ September granted der Plaintiffs on was personam in in satisfaction of an 27, 1986, January De- on in against predecessor interest. Plaintiffs’ summary judg- filed a motion for fendants applicable the record and After a review of ment, granted February 6. which was on law, we affirm. summary judgment It is from this appeal. Plaintiffs II 30, 1985, Moore, H. January John On dispute. are not in The facts of the case H. Oberfell and Darlene Oberfell Robert agree appropri- case is Both sides that the personam judgment obtained an summary judgment, but each main- ate for mortgage against Mer- foreclosure action applicable dictates that it tains that the law Jr., McCurry In- McCurry, ritt Lee d/b/a Mehojahs’ proposition prevail. The judg- Company (McCurry). The vestment follows: error is as $37,619.94 plus interest, ab- ment was for costs, fee, OF fees, THE TRIAL COURT’S GRANTING stracting attorney’s SUMMA- APPELLEES’ MOTION FOR and decreed that the ER- copy RY JUDGMENT IS REVERSIBLE sold. A certified was A PROPERLY County ROR INASMUCH AS recorded in the office of the Tulsa A An FILED MOTION FOR DEFICIENCY February affidavit Clerk IS A POST-JUDGMENT giving and describ- JUDGMENT notice PREREQUISITE OF TO AN ISSUANCE all the other by EXECUTION, AND AS McCurry County GENERAL was filed with the Tulsa APPELLEES WOULD NOT February that same SUCH Clerk on 1985. On A date, BEEN ENTITLED TO WRIT giving letter notice of the HAVE a certified UNTIL EXECUTION mailed to the real estate OF GENERAL THE DEFI- AFTER THE OF agent listing another AMOUNT who was for sale DETER- BEEN McCurry property subject of CIENCY COULDHAVE is the A MINED TO LEGAL CERTAINTY. this lawsuit. however, 20, 1985, misses the real proposition, The McCurry conveyed
On March
undisputed that
appeal.
It is
that real
to William A. and Fred-
issue
general
to a
Mehojah.
general warranty
were not entitled
ericka L.
Defendants
prior
of the deficien-
liens on the real estate of the
cy judgment
attempt
county
did not
debtor within
exe-
from and after
—
copy
judg-
cute herein until some four months
time a certified
of such
deficiency.
ment has been filed in the office of
The real
issue
county
county.
clerk in that
personam
No
judgment grant-
is whether an
by
ment whether rendered
a court of the
proceeding,
ed in a foreclosure
when filed
state or of the United States shall be a
clerk,
provided
as
lien on the
real estate of a
706, becomes a lien on
O.S.1981
all the
*3
in any county
debtor
until it has been
property
by
judgment
debt-
filed in this manner. Execution shall be
may
or or whether the lien
only
attach
only
issued
from the court in which the
entry
deficiency judgment
after the
of a
judgment is rendered.
filing
pursuant
and the
of it
to section 706.
added),
Title 12
(emphasis
Plaintiffs do address the crux of
O.S.1981 686
the dis-
§
pertinent part, provides:
pute
remaining proposition
in their
of error
deficiency
wherein
contend that the
In
mortgage,
actions to enforce a
deed
judgment
judgment,
is a new
trust,
and therefore
or
charge,
per-
other lien or
a
which,
it is this
if filed
judgment
judgment
sonal
or
or
record,
impress
could
a lien on
all
ments shall be rendered for the amount
debtor’s
within the
or amounts due
plaintiff
as well to the
county.
helpful
thereon,
we do not find it
... with interest
and for sale of
to address
appeal
property charged
the vital issues of this
application
and the
proceeds;
proposi-
within
context of Plaintiffs’
.... Notwithstanding
error, although
provisions
tions of
the above
we shall address
no
shall
be
complaints.
any
each of their
residue
the debt
enforced for
remaining
prescribed by
as
unsatisfied
stated,
As
the law is clear that a
this act
the mortgaged property
after
plaintiff in
may
a foreclosure action
not
sold, except
shall have been
as herein
generally
upon
execute
provided. Simultaneously
the mak-
with
judgment debtor until after the sheriff’s
ing of a motion for an order confirming
sale of the
foreclosed
and the
any
(90)
the sale or in
ninety
event within
determination
and
of a deficiency
days
sale,
party
after the date of the
judgment.
Martin,
Baker v.
more
statute
removed,
judgments
of courts
creditors’
and deals
proceed
could and did
to
lien
It
creditors to
enforce their
of record.
allows
upon
property herein
involved. We
liens on the real estate
impress
nothing erroneous in
find
the trial court’s
county by
debtors within a
ment
ruling
acting
that Defendants were
accord-
copy
certified
of a
of a
The
to law.
of the trial court
exception
clerk. No
is made for
-
is affirmed.
in foreclosure
Nor can
judgments
actions.
say
provisions
that the
12 O.S.1981
we
RAPP, J., concurs.
any way
section
restrict
procedures
lien
foreclosure lawsuits.
BRIGHTMIRE, P.J.,
specially.
concurs
entirely upon
right
restrictions are
BRIGHTMIRE, Presiding Judge,
execution,
way modify
any
and do not in
concurring specially.
statutory
creating
provisions
a lien.
fully
I
opinion.
concur
with the court’s
I
interpreting
In
to 12 O.S.
antecedent
add, however,
do want
like most
(cid:127)
706, the
Lisle court concluded:
lawyers
necessary
it
other
found
to ad-
any
money
other
Under
just years
thinking
way,
the other
name-
demand,
has a lien
creditor
ly,
that the
was some sort of an
the real
on
estate of the debtor within
interlocutory event
in the
course
under a
county;
litigation. Upon
began
ap-
reflection it
money
by mortgage,
demand
secured
pear
problem
was one of semantics
lien
creditor has a
on the
statutory
caused
reference to the
estate
within the
*5
real
debtor
judicial deficiency
“judg-
calculation as a
attached,
county, with this condition
Clearly
judg-
ment.”
there can be but one
proceeds
the
that
the sale
certain
given
action
subject
ment in an
on a
mat-
specific
ap-
real
property shall
ter,1
adjudication
either the first
is
first
so
not a
plied
judg-
to the
such
final
or the so-called
satisfaction of
ment.
“judgment”
is not a
but a
judicial determination of the
re-
amount
Kan. at
13
P. at 819.
maining
on the
sale
due
think the
in
We
result reached
the centu-
mortgaged property.
ry old Kansas case
best harmonizes
foreclosure
That the
is
final
apply-
involved.
two statutes
The result
regard
one with
to the amount
on the
of Lisle in this case is that
rationale
hardly subject
dispute.
note is
It
25, 1985,
February
arose on
when
lien
just
every
like
docketed
other
Defendants filed their
appealable.
and it is
It
all the
determines
county
time,
clerk. At that
all of the Tulsa
rights
parties
litigation
to the
which
County
real
of Merritt Lee
point.2
up
Though
exist
to that
the subse-
McCurry
encumbered,
including
was
quent ancillary proceeding may create new
that
subject
land
is the
action. The
of this
disputes,
it
rights.
does not create new
thereby
lien
created was
in
condition
involved
legal
no
have
trouble whatever with the
proceedings
foreclosure
and
be sold
placed
conclusion
once
in the
proceeds
applied
of the sheriff's
sale
required by statute,
judg-
docket as
judgment before
could
issue ment which determines the amount due
against
property.
other real
mortgagor
Conditioned
from
on the note and enters
been,
though may
it
have
the lien arose
mortgagee
in favor of
for that
held, application
nonetheless. The sale
along
was
amount
foreclosure of the mort-
made,
gage,
and a
piece
becomes a lien on
another
Cook,
Taylor,
(Okl.1973);
1. Aishman v.
Ins.
Reliable
Co.
St. Louis v.
was filed. century ago by
This result was reached a Kansas, Supreme Court of Lisle v. Che- 678,13 (1887),
ney, 36 Kan. P. 816 the state
whence came our own statute —12 O.S.1981 adopted first in 1893.3 find, validity
So far as I can
so-called as such has challenged.4
never Nor the more has
disquieting provision the amount re- —that mortgaged ceived from the sale of the satisfy shall be deemed to deficiency “judgment” if no
asked for. It seems to me that
respect 686 is at war with the one might ment rule mentioned earlier and well guarantees
run afoul of the constitutional equal protection by
of due
requiring a class of creditors —those whose
promissory note is secured a mort-
gage “judgment” if seek a second —to security satisfy sale of the does not so, judgment, failing to do arbi-
trarily declare the unsatisfied
satisfied. *6 CO., REALTY
GRIFFITH a Delaware
corporation, Appellee, CITY,
The CITY OF OKLAHOMA
Oklahoma, municipal
corporation, Appellant.
No. 64987. Appeals
Court of
Division No. 3.
Aug.
Rehearing Sept. Denied 3. St. § 4290. 4. There was a lack of chal- notice lenge in Reliable Ins. Co. St. Louis v. Life Cook, supra, footnote 2.