BANK IV OKLAHOMA v. IRA PHILLIPS

BANK IV OKLAHOMA v. IRA PHILLIPS
1997 OK CIV APP 49
945 P.2d 84
68 OBJ 2961
Case Number: 89361
Decided: 08/13/1997

MEDIATECH, INCORPORATED, an Oklahoma corporation,

TULSA COUNTY,-THOMAS GILLERT, JUDGE

AFFIRMED

James R. Hicks, Tulsa, Oklahoma, For Third Party Defendant/Appellant,
Wm. Brad Heckenkemper, Tulsa, Oklahoma,

OPINION

CAROL M. HANSEN, Presiding Judge

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In actions to enforce a mortgage, deed of trust, or other lien or charge, a personal judgment or judgment or judgments shall be rendered for the amount or amounts due as well to the plaintiff as other parties to the action having liens upon the mortgaged premises by mortgage or otherwise, with interest thereon, and for sale of the property charged and the application of the proceeds; . . . the court shall tax the costs, attorney's fees and expenses which may accrue in the action, . . . to be collected on the order of sale or sales issued thereon; when the same mortgage embraces separate tracts of land situated in two or more counties, the sheriff of each county shall make sale of the lands situated in the county of which he is sheriff. . . . Simultaneously with the making of a motion for an order confirming the sale or in any event within ninety (90) days after the date of the sale, the party to whom such residue shall be owing may make a motion in the action for leave to enter a deficiency judgment upon notice to the party against whom such judgment is sought. . . . Upon such motion the court, whether or not the respondent appears, shall determine, upon affidavit or otherwise as it shall direct, the fair and reasonable market value of the mortgaged premises as of the date of sale or such nearest earlier date as there shall have been any market value thereof and shall make an order directing the entry of a deficiency judgment. . . .

Co-borrower argues this language applies to the foreclosure of mortgages on both real and personal property, relying onReconstruction Finance Corp. v. Breeding (Breeding), 211 F.2d 385 (10th Cir. 1954). There, the trial court's judgment foreclosed real and chattel mortgages and ordered the mortgaged property sold. No motion for deficiency judgment was filed, and the sale was confirmed. Five years later, the plaintiff's successor-in-interest moved to revive the judgment in order to collect the balance due. The federal district court denied the motion, and the 10th Circuit Court of Appeals affirmed, holding that under §686, the sale proceeds were deemed to fully satisfy the judgment unless a motion for a deficiency judgment was granted. In applying §686 to the chattel mortgage foreclosure, the Court recognized that the statute makes numerous references to land, but stated, "it is a sweeping statute" and "the word property includes personalty as well as realty."Id. at 389. Co-borrower cites no Oklahoma state court cases applying §686 to the foreclosure of mortgage liens on personal property.

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JOPLIN, J., and BUETTNER, J., concur.