NADINE SAYLOR; LEE HELTON v. DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR LONG BEACH MORTGAGE LOAN TRUST
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RENDERED: OCTOBER 12, 2007; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-002311-MR
NADINE SAYLOR;
LEE HELTON
v.
APPELLANTS
APPEAL FROM HARLAN CIRCUIT COURT
HONORABLE RON JOHNSON, JUDGE
ACTION NO. 04-CI-00860
DEUTSCHE BANK NATIONAL TRUST
COMPANY, AS TRUSTEE FOR LONG
BEACH MORTGAGE LOAN TRUST
2004-1
APPELLEE
OPINION
AFFIRMING AND REMANDING
** ** ** ** **
BEFORE: ACREE AND LAMBERT, JUDGES; ROSENBLUM, SENIOR JUDGE.1
ROSENBLUM, SENIOR JUDGE: Nadine Saylor and Lee Helton appeal from a
Judgment and Order of Sale of the Harlan Circuit Court2 directing the sale of property
owned by the appellants in connection with a foreclosure action filed by the appellee,
1
Senior Judge Paul W. Rosenblum, sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
2
We note that the appellant's brief fails to comply with the requirement of CR 76.12(4)(c)(vii)
that the order being appealed from be included as an appendix to the brief.
Deutsche Bank National Trust Company, as Trustee for Long Beach Mortgage Loan
Trust 2004-1. We affirm the Judgment and Order of Sale, but remand for a correction of
the order pursuant to CR3 60.01 to rectify a clerical error in the order which stated that
Saylor and Helton are married.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2003, in connection with the purchase of property located in
Harlan County, Saylor and Helton executed a note and mortgage in favor of Long Beach
Mortgage Company. The note and mortgage were eventually assigned to the appellee.
On December 3, 2004, the appellee filed a Complaint in Harlan Circuit
Court alleging that Saylor and Helton had defaulted on the note, and seeking to foreclose
on the mortgage. The complaint named as defendants other parties, not at issue here,
thought to have an interest in the property.
On December 22, 2004, Saylor and Helton filed an answer generally
denying the allegations contained in the complaint, including their default.
On June 17, 2005, the appellee first moved for summary judgment upon its
complaint. The motion was supported by an affidavit describing the appellants' default
and documentation verifying the assignment of the loan and mortgage to the appellee.
The motion was noticed for hearing on July 15, 2005. On July 14, 2005, the appellants
filed a notice to the effect that they had filed a bankruptcy proceeding, thereby triggering
the stay proceedings of the Bankruptcy Code.
3
Kentucky Rules of Civil Procedure.
-2-
On August 14, 2006, the appellee filed a renewed motion for summary
judgment. The motion included an assertion that Saylor and Helton were married to one
another. Attached to the motion were the bankruptcy court docket sheets demonstrating
that the bankruptcy proceedings had been closed.
On August 31, 2006, the appellants filed a response to the motion. The
response was limited to objecting to the motion's (and the appellee's proposed order's)
description of the appellants as being married. The response was supported by the
affidavits of Saylor and Helton that they were not married. No other grounds in
opposition to summary judgment were stated.
On September 20, 2006, the appellee filed a second renewed motion for
summary judgment. The motion was substantially the same as the filing of August 14,
2006, except this renewed motion stated that Saylor and Helton were not married.
On October 9, 2006, the circuit court entered a Judgment and Order of Sale
granting the appellee's motion for summary judgment, and directing the Master
Commissioner to sell the subject property in satisfaction of the note in default.4 The
order erroneously stated that Saylor and Helton were married.
This appeal followed.
ERRONEOUS FINDING OF MARRIAGE
As previously noted, the circuit court's October 9, 2006, Judgment and
Order of Sale erroneously found that Saylor and Helton were married. The appellee
4
The record on appeal discloses that the property was sold by the Master Commissioner on
November 6, 2006, and that the appellee was the successful bidder.
-3-
agrees that this finding is erroneous and, indeed the record on appeal reflects that on
January 10, 2007, the appellee filed a motion for entry of a nunc pro tunc order correcting
the error. The record further discloses that Saylor and Helton filed a response opposing
the motion on the basis that “[a]t this point in time the case is being litigated in the Court
of Appeals. The Harlan Circuit Court has no Jurisdiction of the Case at this time.”
It is apparent that the finding contained in the circuit court's order of
October 9, 2006, to the effect that Saylor and Helton are married is clearly erroneous.
CR 52.01. The erroneous finding is, however, clearly a clerical error correctable under
CR 60.01. We accordingly are constrained to remand the cause for the entry of an order
correcting the error pursuant to CR 60.01.
As the order will merely correct a clerical error, the substantive rights of the
parties are, of course, otherwise unaffected.
DEFECTIVE MORTGAGE
Citing KRS 423.130 - a statute repealed in 1992 - the appellants also argue
that the mortgage was somehow defective. It appears that the argument alleges that the
obligation upon the note was discharged in the bankruptcy proceedings, and because the
mortgage is defective, Saylor and Helton are now entitled to continue ownership of the
property free and clear of both the note and the mortgage.
The appellants do not cite us to their preservation of this argument as
required by CR 76.12(4)(c)(iv), and our review of the record fails to disclose that the
argument was made before the circuit court. It is elementary that a reviewing court will
-4-
not consider for the first time an issue not raised in the trial court. Caslin v. General
Elec. Co., 608 S.W.2d 69, 70 (Ky.App., 1980). We accordingly will not address this
issue upon the merits.
CONCLUSION
For the foregoing reasons the judgment of the Harlan Circuit Court is
affirmed, and the cause is remanded for further proceedings consistent with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
John Crocket Carter
Harlan, Kentucky
Kerri N. Bruckner
Cincinnati, Ohio
-5-
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