Beal Bank, SSB v. Thornton

19 S.W.3d 48, 70 Ark. App. 336, 2000 Ark. App. LEXIS 451
CourtCourt of Appeals of Arkansas
DecidedJune 7, 2000
DocketCA 99-435
StatusPublished
Cited by11 cases

This text of 19 S.W.3d 48 (Beal Bank, SSB v. Thornton) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beal Bank, SSB v. Thornton, 19 S.W.3d 48, 70 Ark. App. 336, 2000 Ark. App. LEXIS 451 (Ark. Ct. App. 2000).

Opinion

JOHN MAUZY Pittman, Judge.

This is an appeal from an order of the Miller County Chancery Court denying appellant Beal Bank’s petition to foreclose on a deed of trust securing a promissory note on which appellees Larry Thornton and Edwina Thornton defaulted in 1988. We find merit in one of appellant’s points for appeal, and we affirm in part and reverse in part.

On May 9, 1986, appellees signed a promissory note to Texana Savings and Loan Association and gave a deed of trust to secure the debt. Appellees made their last payment on the note in May 1988, and later that summer, the bank accelerated the unpaid balance. On July 8, 1996, appellant filed suit against appellees to foreclose on the deed of trust, claiming that the note and deed of trust had been assigned to it by its subsidiary, Loan Acceptance Corporation (“LAC”), on November 3, 1995. According to appellant, LAC had received an assignment of the documents from the Resolution Trust Corporation (“RTC”) while acting as conservator and receiver of Sunbelt Federal Savings, F.S.B. (“Sunbelt”). Appellant could not produce the note but did have a copy of the deed of trust.

Appellant sought to introduce exhibits demonstrating the assignments through the testimony of Mark Bauer, a loan officer for appellant. Mr. Bauer was appellant’s only witness at trial. Appellees did not deny signing the note and defaulting on it in 1988 but asserted that the statute of limitations had run and resisted appellant’s attempted introduction of documents relating to the assignments on the grounds that they were not authenticated and were hearsay. Appellant was successful in getting its assignment from LAC into evidence under the business records exception to the hearsay rule set forth in Arkansas Rule of Evidence 803(6) but could not get into evidence a copy of the assignment from the RTC to LAC (Plaintiff’s Exhibit F), a copy of a letter from the Office of Thrift Supervision (“OTS”) to Sunbelt notifying it that the RTC had been appointed as its conservator, or a copy of the April 25, 1991, order of the OTS relating to the appointment of the RTC as Sunbelt’s receiver and conservator (Plaintiff’s Exhibit D). Appellant proffered Plaintiff’s Exhibits D and F, and the chancellor kept the record open for appellant to supplement it with a certified copy of Plaintiff’s Exhibit D. With its posttrial brief, appellant filed additional OTS documents.

In his order denying foreclosure to appellant, the chancellor found that appellant had “failed to sustain its burden of proof that it is the legal owner to the property that is the subject of this suit”; that appellant had wholly failed to establish that it is a proper party to this litigation; that the statute of limitations began to run in May 1988; that, because no admissible evidence was introduced that the RTC ever had ownership of the property, Arkansas’s five-year statute-of-limitations controlled; that appellees had established adverse possession of the property; and that the documents filed with appellant’s posttrial brief and Plaintiffs Exhibit F were not admissible into evidence. It is from this order that appellant brings this appeal.

Appellant argues that the federal six-year statute of limitations set forth in 12 U.S.C. § 1821(d)(14) of the Financial Institutions Reform Recovery and Enforcement Act (FIRREA), enacted in 1989, applies to this case. Appellant also asserts that the documents filed with its posttrial brief, Addendum Exhibits 3, 4, 5, and 6, should have been admitted into evidence. Because, as explained below, the chancellor’s finding that appellant failed to prove that it is the owner of this note and deed of trust is not clearly erroneous, we need not decide the statute-of-limitations and evidentiary arguments.

Appellant argues that the chancellor erred as a matter of law in finding that appellees adversely possessed the property covered by the deed of trust. We agree. As appellant points out, appellees are the legal owners of this property and, even after default, appellant had no automatic right of entry to it. One must have the right of entry before another can hold adversely to him. Smith v. Kappler, 220 Ark. 10, 245 S.W.2d 809 (1952).

In its fourth point on appeal, appellant contends that, because appellees’ responses to its requests for admissions were untimely, the matters of which it requested admission should have been deemed admitted and the chancellor should have granted it foreclosure. However, appellant did not make this argument to the chancellor. We do not address an issue that is raised the first time on appeal. Giles v. Sparkman Residential Care Home, Inc., 68 Ark. App. 263, 6 S.W.3d 140 (1999).

Appellant also contends that, in their responses to appellant’s interrogatories, appellees admitted all facts that would entitle appellant to relief, or that the trial should at least have been limited to the statute-of-limitations and adverse-possession issues. After presenting its case-in-chief, appellant moved, without objection, for appel-lees’ answers to interrogatories to be admitted into evidence. After appellees called Mr. Thornton as a witness, appellant argued that appellees’ responses to Interrogatory Number 2 should bar any testimony “put on as a defense of foreclosure....” Appellees responded that they had never waived any issue and that, should there be any question about their position, they would request an amendment at that time. The chancellor then asked appellant’s counsel if his objection was premised on the idea that the statute of limitations was waived by that response. Appellant’s counsel answered that it was. The chancellor replied: “[S]ince the same document clearly indicates the other intent, I will note it, but I will overrule it.”

Thus, without citation to authority, appellant is asking us to hold that a response to an interrogatory has the same legal effect as an answer to a request for admission. We do not address an argument in the absence of citation to authority or convincing argument. Presley v. Presley, 66 Ark. App. 316, 989 S.W.2d 938 (1999). Additionally, appellant failed to obtain a ruling on this question at trial; the only ruling made by the chancellor in this regard was whether appellees had waived the statute-of-limitations defense. Without such a ruling, we will not address an issue on appeal. Robinson v. Winston, 64 Ark. App. 170, 984 S.W.2d 38 (1998). Even had appellant preserved this issue, we would not need to interpret the Rules of Civil Procedure, as it asks us to do, to decide the question presented in this case. The trial judge essentially decided that appellees’ answers to the interrogatories were conflicting and therefore, ambiguous, and that, in light of this ambiguity, appellees did not waive their defenses to this suit. Whether a waiver occurred is a question of intent, which is usually a question of fact. Dugal Logging, Inc. v. Arkansas Pulpwood Co., 66 Ark. App. 22, 988 S.W.2d 25 (1999). We do not reverse the chancellor’s finding of fact unless it is clearly erroneous. Id.

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Bluebook (online)
19 S.W.3d 48, 70 Ark. App. 336, 2000 Ark. App. LEXIS 451, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beal-bank-ssb-v-thornton-arkctapp-2000.