ROBEY v. LONG BEACH MORTGAGE CORPORATION

ROBEY v. LONG BEACH MORTGAGE CORPORATION
2005 OK 64
124 P.3d 221
Case Number: 100300
Decided: 09/20/2005

THE SUPREME COURT OF THE STATE OF OKLAHOMA

RICHARD ROBEY and JERONIA ROBEY, Appellants/Counter-Appellees,
v.
LONG BEACH MORTGAGE CORPORATION, Appellee/Counter-Appellant,
and
FRISCO TITLE CORPORATION, Defendant.

ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION IV

¶0 The appellants/counter-appellees, Richard and Jeronia Robey, sued the appellee/counter-appellant, Long Beach Mortgage Corporation, because it foreclosed on a property without notice to the Robeys, who were the junior lien holders. The trial court awarded judgment to the Robeys, but denied their motion for an attorney's fee. Both parties appealed. The Court of Civil Appeals affirmed the judgment of the trial court.

CERTIORARI PREVIOUSLY GRANTED;
COURT OF CIVIL APPEALS' OPINION VACATED;
JUDGMENT OF THE TRIAL COURT AFFIRMED IN PART AND
REVERSED IN PART AND REMANDED.

Lawrence A.G. Johnson, Tulsa, Oklahoma, for appellants/counter-appellees.
Melvin R. McVay, Jr., Thomas P. Manning, PHILLIPS McFALL McCAFFREY McVAY & MURRAH, P.C., Oklahoma City, Oklahoma, for appellee/counter-appellant.

WINCHESTER, V.C.J.

¶1 The dispositive issues presented on certiorari are (1) whether the trial court committed reversible error in its use of findings of fact; (2) whether the amount of damages awarded to the plaintiffs, the Robeys, was supported by the record; and (3) whether the Robeys were entitled to an attorney's fee.

I. FACTS

¶2 Richard and Jeronia Robey sold the property known as 14316 E. 19th Place, Tulsa, Oklahoma, described as Lot 31, Block 17, Eastland Park, an addition to the City of Tulsa, Tulsa County, State of Oklahoma. The Robeys employed Frisco Title Corporation to act as closers, and employed a law firm to perform the title examination. When the firm submitted its bill to Frisco as part of the closing costs, it correctly described the property. When Frisco prepared the note and mortgage it misdescribed the property as being Lot 37. Long Beach Mortgage Corporation took a first purchase money mortgage in the property and the Robeys took a second purchase money mortgage.

¶3 The buyers became delinquent on their mortgage to Long Beach. On April 21, 2000, Long Beach sent a letter to the Robeys entitled "Notice of Default". The letter stated that the records of Long Beach indicated the Robeys might have an interest in the property listed by its address as 14316 E 19th Place South, Tulsa, OK 74108, and that Long Beach wished to discuss it.

¶4 Richard Robey testified he had several conversations with Long Beach regarding their interest in the property. He was later asked not to call back again. Richard Robey sent them a copy of the note and mortgage, which included the street address to the property. Long Beach foreclosed without notice to the Robeys.

¶5 Robey testified he found the property on the multilist, which showed a new owner. He called the owner and learned of the foreclosure sale. The Robeys then filed this lawsuit. After the hearing, the trial court awarded the Robeys $19,000.00. The court's "Findings of Fact and Conclusions of Law", filed November 20, 2003, found that the Robeys were in the class of persons entitled to notice of the foreclosure sale, were entitled to notice of the hearing to confirm the sheriff's sale, and that the failure of Long Beach to make the Robeys parties defendant in the foreclosure action deprived them of their statutory right to redeem the property.

II. AMOUNT OF DAMAGES

¶6 The Robeys complain that the trial court's Findings of Fact and Conclusions of Law conflict with the court's Journal Entry of Judgment. They believe that the findings support the amount of damages alleged by Mr. Robey in his testimony, when he set the value "between 80 and 85 thousand."

"Plaintiffs are entitled to damages in the amount of $19,000, representing the loss of rentals from the property to date, the loss of tax deduction of $1,200, and the difference between the price obtained at sheriff's sale and the present value of the property, plus costs, and a reasonable attorney fee to be set by the Court upon proper application."

¶7 The findings contain the same amount of damages, $19,000.00, as the judgment contains. There is no inconsistency between the findings and the judgment in that regard. The Robeys argue that the value of the home as testified to by Mr. Robey, $85,000.00, was uncontested and therefore the damages awarded were too low.

¶8 The Court of Civil Appeals correctly observed that the $85,000.00 figure for the value of the property is at the high end of the estimate made by Mr. Robey, who is in the real estate business. Mr. Robey also testified the property was resold for $71,000.00, which amount the trial court was free to accept as more indicative of market value. Accordingly, that judgment is supported by the evidence presented, and does not in any way contradict the findings of fact by the trial court.

III. ATTORNEY'S FEE

¶9 The Robeys also assert that the trial court erred in declining to award them an attorney's fee. They argue that because the findings of fact include "a reasonable attorney fee to be set by the Court upon proper application" that the court is required to award the attorney's fee. The trial court apparently reconsidered that award since the journal entry denied the Robeys an attorney's fee. The Court of Civil Appeals affirmed.

¶10 The Robeys claim they are entitled to an attorney's fee pursuant to

¶11 Title

¶12 Long Beach compares the facts in this case to Frontier Fed. Sav. and Loan Ass'n v. Commercial Bank,

¶13 The Frontier case cites this Court's decision in General Electric Credit Corp. v. First National Bank,

¶14 By contrast, in Ivey v. Henry's Diesel Service,

¶15 Merely because the Robeys were forced to sue subsequent to the foreclosure on the property does not mean the suit has lost its lien-enforcement character. Because of Long Beach's decision to exclude the junior lienholders by not giving notice, this suit represents the one and only opportunity the junior lienholders have to enforce their lien, and the lien claimants are in adversary posture. This was an action to enforce a lien, and the prevailing party should have been allowed to recover an attorney's fee. The refusal of the trial court to award a fee was error. The case is remanded to award the Robeys a reasonable attorney's fee pursuant to

CERTIORARI PREVIOUSLY GRANTED;
COURT OF CIVIL APPEALS' OPINION VACATED;
JUDGMENT OF THE TRIAL COURT AFFIRMED IN PART AND
REVERSED IN PART AND REMANDED.

CONCUR: WINCHESTER, V.C.J., LAVENDER, HARGRAVE, OPALA, KAUGER, EDMONDSON, TAYLOR, COLBERT, JJ.

DISSENT: WATT, C.J.

FOOTNOTES

1 Other issues were raised by the Petition in Error and Counter Petition in Error. These issues were addressed by the Court of Civil Appeals in its opinion, but were not raised on certiorari. These issues stand abandoned. Okla.Sup.Ct.R. 1.180(b), Pitco Production Co. v. Chaparral Energy, Inc., 2003 OK 5, ¶ 1, n. 2, 63 P.3d 541, 543, n. 2.

2 Title 12 O.S.2001, § 764(A)(1) provides:

"A. Lands and tenements taken on execution shall not be sold unless the party causing the execution to be issued:

"1. causes a written notice of sale executed by the sheriff containing the legal description of the property to be sold and stating the date, time and place where the property will be sold to be mailed, by first class mail, postage prepaid, to the judgment debtor, any holder of interest of record in the property to be sold whose interest is sought to be extinguished, and all other persons of whom the party causing the execution to be issued has notice who claim a lien or any interest in the property whose interest is sought to be extinguished, at least ten (10) days prior to the date of the sale, if the names and addresses of such persons are known. . . ."

3 Title 42 O.S.2001, § 19 provides:

"One who has a lien, inferior to another upon the same property, has a right:

"1. To redeem the property in the same manner as its owner might, from the superior lien; and,

"2. To be subrogated to all the benefits of the superior lien when necessary for the protection of his interests, upon satisfying the claim secured thereby."

4 Testimony of Richard Robey, Transcript p. 17.

5 Testimony of Richard Robey, Transcript p. 17.