Bobby Jett v. Mortgage Electronic Registration Systems, Inc.

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FEBRUARY 11, 2004








Olly Neal, Judge

Appellant Bobby Jett appeals the grant of appellee Mortgage Electronic Registration Systems, Inc.'s complaint for writ of assistance. On appeal, appellant argues that "the trial court erred in granting a writ of assistance on real property against an assignee/tenant who was purchasing the property on assignment in good faith, had made substantial payments toward the purchase, and had invested in substantial repairs to the property, without first finding and protecting the equitable interests of the assignee and allowing him the opportunity to perform the assignment intended." We affirm.

The record on appeal reveals the following. On June 30, 1993, Dewayne and Karen Clifton obtained a mortgage from Simmons First National Bank for property located at 4107 West 30th Avenue, Pine Bluff, Arkansas 71603. Simmons assigned the mortgage to Charles Curry and Company on September 30, 1994.

At some point in time, Bill Wood was assigned an interest in the property. The record is silent as to what interest Mr. Wood obtained and as to how Mr. Wood obtained his interest. In the summer of 2000, believing that Mr. Wood was the mortgagor of the property, appellant and his daughter, Twanna Jett, agreed to purchase the property. Under the agreement, appellant and Twanna Jett were to assume the mortgage payments. However, at the time of the agreement, the mortgage debt was in default.

Twanna Jett took possession of the property in August 2000. Subsequently, notices of foreclosure were sent to the property, and on March 14, 2002, appellee purchased the property at a foreclosure sale. As a result, appellee filed a complaint for writ of assistance. On July 1, 2002, appellant and Twanna Jett filed a motion asking the trial court to stay the execution of the writ of assistance. They also filed a petition asking for an order confirming their alleged interest in the property. The trial court granted the stay, and a hearing was held on October 10, 2002.

At the hearing, Twanna Jett testified that she had lived at the property for two-and-one-half years. She explained that, under the agreement with Mr. Wood, she paid Mr. Wood and he in turn paid the mortgage company. Ms. Jett stated that her last receipt was dated "July 31, 2000." She also testified that she signed a contract providing her rights in the property.1 Ms. Jett said that she was never advised that, in order to secure rights in the property, she needed to contact the mortgage company. Ms. Jett said that, at the time, she believed Mr. Wood represented the mortgage company.

Appellant testified that he thought they had purchased the property from the finance company. He said that he understood the contract to mean that "[Mr. Wood] was going to get an assumption kit for Twanna to assume the payments." Appellant said that the company Mr. Wood was representing was sold and that their agreement got lost in the shuffle. He also said that every time he called the mortgage company, the answering machine would answer. Appellant testified that he only learned of the foreclosure when the sheriff put the notice on the door of the property. Appellant further testified that following a storm, he and his daughter paid$1,200 for the removal of some trees that had fallen on the house. He also said that they had made numerous improvements to the property.

Matt Martin, foreclosure manager for Wilson and Associates, testified that exhibit six was a copy of the certified letter that was sent to the tenants of the property notifying them of the foreclosure. He explained that exhibit seven was the ledger book showing a post office stamp indicating that the post office received the letter.

At the conclusion of the hearing, the trial court lifted the stay of execution and denied appellant's petition for an order confirming his interest in the property. Appellant now argues that the trial court erred in granting the writ of assistance.

Decisions rendered by courts of equity are reviewed de novo on appeal, and are not reversed unless we find that the trial judge's decision is clearly erroneous. Abbot v. Abbott, 79 Ark. App. 413, 90 S.W.3d 10 (2002). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Cannon Remodeling & Painting, Inc. v. The Marketing Co., Inc., 79 Ark. App. 432, 90 S.W.3d 5 (2002).

Appellant alleges that "the ruling of the trial court below finding that appellant's equitable claims to property purchased through a third party, were not cognizable on an action for writ of assistance involving the real property against which appellant's equitable claims attached, was a violation of the spirit and letter of section 18-50-116(d)(2)." Appellant essentially argues that the trial court should have addressed his equitable claims in the property. In holding that it did not have the authority to address appellant's equitable claims the trial court found:

[W]e are talking about two totally different and separate contracts involving different parties. There appears to be one contract between plaintiff's predecessor and Mr. Wood that the Jetts have nothing to do with. There appears to be another contract between the Jetts and Ms. Robinson and Mr. Wood of which plaintiff has nothing to do with. The only connecting source here is both Mr. Wood and the premises at 4107 West 30th. Mr. Wood may have held himself out as an owner. Mr. Wood may have held himself out as a representative or agent of plaintiff or its predecessor in title. But the legal argument is, if he held himself out, if he lied, if he deceived- and the Court is not saying he did any of those things- we're tying [sic] to see how does that leapfrog over to plaintiff or plaintiff's predecessor in title. Clearly, there were some dealings between Mr. Wood and the Jetts. But is there any legal premise presented today whereby the Court can, as Mr. Ray argued, obligate Mr. Ray to engage in a contract and give Ms. Jett the benefit of the monies that have been paid over. The Court does not have the authority to compel such. At least, none has been cited to the Court today, and the Court is not aware of any. Even if we don't want to force a contract, just want to stake our interest, that's essentially what Mr. Jett said is we've spent certain monies on this property paying the note, doing certain repairs and upkeep and such. No one is arguing or denying that that was done. But if the Court has heard correctly, we are attempting to give the Jetts a greater interest in the property than what Mr. Wood had and he was the original contractor with the mortgage company. That's what brings about the novelty of the argument. The Court is not aware of any cases in Arkansas or any code provision that authorizes nor even permits same to be done. Plaintiff had a contract that was defaulted on, that was foreclosed on, and the sale having taken place plaintiff is now seeking to have the property vacated. The Court does not see where I have authority to give you any vested interest in the property, to impose any contractual obligation between the parties that are here today, in any way, shape or form. It appears that this is a separate action that should be brought against Mr. Wood.

In resolving the issue of whether the trial court should have addressed appellant's equitable claims, we are guided by Ark. Code Ann. §§ 18-50-107(e) and 18-50-116(d). Section 18-50-107(e) (Supp. 2003) provides:

The purchaser at the sale shall be entitled to immediate possession of the property. Possession may be obtained by filing a complaint in the chancery court of the county in which the property lies and attaching a copy of the recorded trustee's or mortgagee's deed, whereupon the purchaser shall be entitled to an ex parte writ of assistance. Alternatively, the purchaser may bring an action for forcible entry and detainer pursuant to § 18-60-301 et seq. In either event, the provisions of § 18-50-116(d) shall apply.

Section 18-50-116(d) (Supp. 2003) provides:

Nothing in this chapter [the Statutory Foreclosure Act] shall be construed to:

(1) Create an implied right of redemption in favor of any person; or

(2)(A) Impair the right of any person or entity to assert his legal and equitable rights in a court of competent jurisdiction.

(B) Provided, however, that any such claim or defense shall be asserted prior to the sale or be forever barred and terminated.

We are further guided by Ark. Code Ann. § 18-60-213 (1987). Section 18-60-213 provides:

a) If any person believing himself to be the owner, either in law or equity, under color of title has peaceably improved, or shall peaceably improve, any land which upon judicial investigation shall be decided to belong to another, the value of the improvement made as stated and the amount of all taxes which may have been paid on the land by the person, and those under whom he claims, shall be paid by the successful party to the occupant, or the person under whom, or from whom, he entered and holds, before the court rendering judgment in the proceedings shall cause possession to be delivered to the successful party.

Thus, in order to recover under section 18-60-213 a person must (1) believe he is the true owner of the property and (2) hold under color of title. See Smith v. MRCC Partnership, 302 Ark. 547, 792 S.W.2d 301 (1990). Although appellant believed himself to be the true owner, he did not hold color of title. Color of title is defined as "a written instrument or other evidence that appears to give title, but does not do so." Black's Law Dictionary 260 (7th ed. 1999). We are unable to discern from the record how appellant acquired an interest in the property. We, therefore, hold that appellant did not have color of title. Therefore, the trial court did not err when it refused to address appellant's equitable claims.


Pittman and Vaught, JJ., agree.

1 This contract is not part of the record on appeal.