Bowling v. Appalachian Federal Credit Union

515 S.W.3d 686, 2017 WL 461258, 2017 Ky. App. LEXIS 25
CourtCourt of Appeals of Kentucky
DecidedFebruary 3, 2017
DocketNO. 2015-CA-000041-MR
StatusPublished
Cited by2 cases

This text of 515 S.W.3d 686 (Bowling v. Appalachian Federal Credit Union) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bowling v. Appalachian Federal Credit Union, 515 S.W.3d 686, 2017 WL 461258, 2017 Ky. App. LEXIS 25 (Ky. Ct. App. 2017).

Opinion

OPINION

TAYLOR, JUDGE:

John R. Bowling and April L. Bowling bring this pro se appeal from a December 23, 2014, order of the Jackson Circuit Court confirming a sale of real property and a manufactured home. We affirm in part, reverse in part, and remand.

On September 16, 2011, the Appalachian Federal Credit Union (Credit Union) filed a Complaint for Foreclosure in the Jackson Circuit Court against the Bowlings. Therein, the Credit Union alleged that the Bowlings executed a promissory note on June 5, 2009, for the principal sum of $62,450 and granted the Credit Union a mortgage upon three acres of real property located in Jackson County. Additionally, the Credit Union alleged that the Bowlings executed a second promissory note on March 8, 2010, for the principal sum of $71,868.60 and also granted the Credit Union a second mortgage upon the same three acres of real property located in Jackson County. The Credit Union maintained that the Bowlings had defaulted under the terms of both promissory notes and sought to have the subject real property sold to satisfy their indebtedness. The Credit Union then filed both a motion for default judgment and a motion for summary judgment. The Bowlings proceeded pro se and filed an answer generally denying the allegations set forth in the complaint on February 9, 2012. On the same day, February 9, 2012, a summary judgment and order for judicial sale of real estate (order of sale) was entered. The circuit court found that the Bowlings had defaulted upon both promissory notes and that a valid mortgage existed upon the Bowlings’ three acres of real property. Thus, the circuit court ordered the three acres of real property sold by the master commissioner. The summary judgment and order of sale made no reference to the Bowlings’ mobile home, located thereon. A notice of sale was entered by the master commissioner on February 20,2012.

John Bowling thereupon filed a notice of appeal (Appeal No. 2012-CA-000473-MR) from the February 9, 2012, order of sale. The Court of Appeals ultimately dismissed Bowling’s direct appeal as he failed to name an indispensable party, April Bowling, in the notice of appeal.1 Bowling then sought discretionary review by the Kentucky Supreme Court which was denied by order entered August 14, 2014.

Upon remand, the master commissioner issued a second notice of sale on September 15, 2014. By report of sale filed October 8, 2014, the Master Commissioner of Jackson Circuit Court reported that the three acres of real property had been sold to the highest bidder (the Credit Union) for a purchase price of $34,100, on that same day.2 The Credit Union was granted [688]*688a credit for its judgment against the purchase price and costs. The Bowlings filed an objection to the sale on October 16, 2014, contending that the mobile home located on their real property was not subject to the Credit Union’s mortgage lien claim. In a December 23, 2014, order, the circuit court confirmed the sale and ordered the master commissioner to convey by deed the subject real property to the Credit Union. Additionally, the circuit court also instructed the master commissioner to transfer the Bowlings’ mobile home located on the realty as follows:

It is FURTHER ORDERED that the Master Commissioner shall execute a title transfer and execute the title to covey the purchaser, the [Credit Union], the 1999 Fleetwood Mobile Home, NFLX27AB19867SR13. The Master Commissioner is ORDERED and AUTHORIZED TO execute an application for a duplicate title and upon receipt of the title, the Master Commissioner is Ordered and authorized to execute all documents necessary to transfer the title to the mobile home to the [Credit Union].

Order confirming sale at 2. This appeal follows.

The Bowlings contend that the circuit court committed error by confirming the sale by the master commissioner that included their “double-wide mobile home” then situated upon the three acres of real property at the time of the foreclosure. The Bowlings argue that their mobile home was not specifically listed in the mortgage documents and that it was not part of the real estate subject to the Credit Union’s mortgage. For the reasons stated, we agree.

We begin our analysis by noting that the Credit Union has failed to file an appellee brief in this ease. Kentucky Rule of Civil Procedure (CR) 76.12(8)(c) “provides the range of penalties that may be levied against an appellee for failing to file a timely brief.” St. Joseph Catholic Orphan Soc’y v. Edwards, 449 S.W.3d 727, 732 (Ky. 2014). This Court may “(i) accept the appellant’s statement of the facts and issues as correct; (ii) reverse the judgment if appellant’s brief reasonably appears to sustain such action; or (iii) regard the appellee’s failure as a confession of error and reverse the judgment without considering the merits of the case.” CR 76.12(8)(c). For purposes of this appeal, we accept the Bowlings’ statement of facts set forth throughout their brief in regard to their “double-wide mobile home” as correct.

Based on the record in this case, the Bowlings’ “double-wide mobile home” is a manufactured home as described in KRS 186.650(3). Ownership of a manufactured home, even if situated upon real property, requires a certificate of title to be issued as indicia of ownership. KRS 186A.070(1). Until permanently affixed to real property, a manufactured home is personal property, not real property, under Kentucky law. Citizens Nat’l Bank v. Washington Mut. Bank, 309 S.W.3d 792 (Ky. App. 2010). KRS 186A.190 “provides that the sole means of perfecting a security interest in personal property for which a certificate of title is issued is by placing a notation of the lien on the certificate of title.” Citizens Nat’l Bank, 309 S.W.3d at 796. And, a manufactured home may become “permanently affixed” to real property if the mandates of KRS 186A.297 are fulfilled. Citizens Nat’l Bank, 309 S.W.3d 792; see also PHH Mortg. Servs. v. Higgason, 345 B.R. 584 (E.D. Ky. 2006).3

KRS 186A.297 provides:

[689]*689(1) When a manufactured home is or is to be permanently affixed to real estate, the owner may execute and file an affidavit of conversion to real estate with the county clerk of the county in which the real estate is located. The affidavit shall attest to the fact that the home has been or will be permanently affixed to the real estate and be accompanied by a surrender of the Kentucky certificate of title. The county clerk shall file the affidavit of conversion to real estate in the miscellaneous record book.

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Cite This Page — Counsel Stack

Bluebook (online)
515 S.W.3d 686, 2017 WL 461258, 2017 Ky. App. LEXIS 25, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bowling-v-appalachian-federal-credit-union-kyctapp-2017.