JIMMY DALE SHOOPMAN AND PAMELA DEAN SHOOPMAN, WIFE v. VANDERBILT MORTGAGE & FINANCE, INC.
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RENDERED:
APRIL 12, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-001284-MR
JIMMY DALE SHOOPMAN
AND PAMELA DEAN SHOOPMAN, WIFE
APPELLANTS
APPEAL FROM McCREARY CIRCUIT COURT
HONORABLE PAUL E. BRADEN, JUDGE
ACTION NO. 00-CI-00193
v.
VANDERBILT MORTGAGE & FINANCE, INC.
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, CHIEF JUDGE; BARBER AND GUIDUGLI, JUDGES.
BARBER, JUDGE:
The Appellants, Jimmy Dale Shoopman and Pamela
Dean Chitwood Shoopman (“Appellants”), seek review of an order of
the McCreary Circuit Court, denying their CR 60.02 motion to set
aside a default judgment.
Finding no error, we affirm.
Appellants purchased a mobile home from Clayton Mobile
Homes.
The Appellee, Vanderbilt Mortgage and Finance
(“Appellee”), financed the transaction.
were in default on their payments.
Appellants apparently
On June 30, 2000, Appellee
filed a complaint, seeking judgment for $15,199.43 plus interest,
late charges, and attorney’s fees, and possession of the mobile
home.
The record reflects that Appellants were served with
summonses on July 2, 2000.
Appellants failed to serve an answer
within 20 days as required by CR 12.01.
On July 27, 2000,
Appellee filed a motion for a default judgment against
Appellants; on September 23, 2000, the motion was re-noticed to
be heard on September 25, 2000.
On September 27, 2000, default
judgment was entered in favor of Appellee.
On February 16, 2001, Appellee filed a motion to amend
the previously-entered default judgment to correct an apparent
typographical error in the serial number of the mobile home.
The
number in the original default judgment was CLM05693TN; it should
have been CLM05698TN.
Appellee explained that the Sheriff’s
Department refused to allow them to repossess of the mobile home,
due to the clerical error.
On March 22, 2001, eight months after their answer was
due, the Appellants, by counsel, filed a notice of appearance in
the McCreary Circuit Court.
On March 27, 2001, Appellants filed
a motion for relief from the default judgment, claiming that:
since entry of said Default Judgment, . . .
[they] have discovered that either there has
been forgery of their signatures on a power
of attorney allegedly granted from . . .
[Appellants] to a transfer agent for the
mobile home . . . or . . . at, the time of
execution of the power of attorney, an agent
for . . . [Appellee] misrepresented the
nature of the power of attorney as being an
innocuous document to be executed by the
. . . [Appellants] (i.e. fraud in the
factum).
Appellants requested relief pursuant to “CR 60.02(b) (c).”
On May 25, 2001, the trial court entered an order, denying
Appellants’ motion to set aside the default judgment on the
-2-
ground that the evidence relied upon by Appellants was “not
material to this case.”
The court granted Appellee’s motion to
amend to correct the serial number, noting that the “Amended
Serial number is the same as was on the contract for purchase and
is thus an Administrative Order.”
On June 13, 2001, Appellants filed a notice of appeal
to this court.
On appeal, they contend that the trial court
abused its discretion in denying their request for relief from
the default judgment.
CR 12.01 requires a defendant to serve his
answer within 20 days after service of summons.
not serve an answer.
Appellants did
Default judgment was entered two months
after the answer was due.
Appellants waited another six months
before filing a notice of appearance and a motion for relief from
the default judgment.
Failure to file a timely answer is sufficient basis for
a default judgment.
Green Seed Co. v. Harrison Tobacco Whse.,
Ky. App., 663 S.W.2d 755 (1984).
Appellants failed to show good
cause why they did not timely file an answer to the complaint.
We agree with the trial court that the allegations in the CR
60.02 motion are immaterial to that issue, and we find no abuse
of discretion.
We affirm the trial court’s May 25, 2001 order,
denying the Appellants’ motion to set aside the default judgment.
ALL CONCUR.
BRIEF FOR APPELLANTS:
NO BRIEF FILED FOR APPELLEE.
James H. Wren, II
Williamsburg, Kentucky
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