Fleet Real Estate Funding Corp. v. Frampton

812 P.2d 416, 15 U.C.C. Rep. Serv. 2d (West) 987

• Court: Court of Civil Appeals of Oklahoma
• Decided: April 23, 1991
• Docket: 74100
• Status: Published

Opinion

MEMORANDUM OPINION

GARRETT, Presiding Judge:

Appellee did not file an answer brief. Where there is a failure to file an answer brief, if the brief in chief is reasonably supportive of Appellant’s allegations of error, this Court will ordinarily reverse the appealed judgment with appropriate directions; but, if the brief in chief is not reasonably supportive of the allegations of error, the decision of trial court will be affirmed. Cooper v. Cooper, 616 P.2d 1154 (Okl.1980). We find Appellant’s brief in chief does not support the allegations of error; and, the judgment is affirmed.

On June 30, 1989, Fleet Real Estate Funding Corporation (Appellee) obtained a judgment against Harry Medford Framp-ton, Jr., on a promissory note and foreclosing the real estate mortgage which secured the note. Appellant did not appeal within 30 days and the judgment became final. The sheriff’s sale of the real property was confirmed over Appellant’s objections on September 6, 1989. It is from the order confirming sheriff’s sale that Appellant appeals.

First, Appellant contends that Ap-pellee did not enter into good faith negotiations prior to the filing of the action on the note and to foreclose the mortgage. This contention is unsupported by legal authority. Further, the judgment was obtained on June 30, 1989, and no appeal was filed. By failing to file a timely appeal, Appellant waived any alleged error with reference to the entry of the judgment.

Appellant contends Appellee refused to accept tender of payment in full for the debt prior to the sheriff’s sale, and therefore, Appellant is not liable for interest, costs and attorney fees pursuant to 12A O.S.1981 § 3-604.

The document offered by Appellant to Appellee as tender of payment in full is, in material part, as follows:

NEGOTIABLE INSTRUMENT IN GOD WE TRUST No. 777

Redeemable When Presented To ON DEMAND

The Signer At His Usual Place of TENDER OF PAYMENT

Sojourning or Business. 16 Aug , 1989

THE UNDERSIGNED WILL

PAY TO THE ORDER OF Fleet Real Estate Funding Corp_

SEVENTY-SIX THOUSAND ONE HUNDRED FOUR DOLLARS OF CREDIT * 76,104.00

As payment in full or Twenty-One Dollars of Silver in Full Payment At-Law Certified By

THE F.R.B. OF NEW YORK /s/ Harry M. Frampton

SIGNATURE

SAYS “MONEY DOESN’T HAVE TO BE ...

ISSUED BY A GOVERNMENT ... OR BE IN 9701 Willow Wind Dr.

ANY SPECIAL FORM.” QUOTED FROM “I ADDRESS BET YOU THOUGHT”

TENDER IN PAYMENT IN FULL Midwest City, OK 73180

CITY STATE

ZIP

MEMO: ON ACCOUNT # 3743200

The above described document is not tender of payment in full. It is, at most, only another promise to pay. This contention is without merit.

Finally, Appellant contends he was entitled to a jury trial “pursuant to U.S. Constitution, Art. 7, Art. 9, Art. 2 § 19, and Art. 28 § 8.” Here, Appellant appeals from an order confirming sheriffs sale, which is an ancillary enforcement proceeding to the judgment foreclosing the mortgage. Foreclosure is equity, not law. Appellant is not entitled a jury trial in equity, or on such a motion.

The standard of review for a motion to confirm sheriffs sale is whether the trial court abused its discretion. Drummond v. James, 150 Okl. 105, 300 P. 658 (1931). We do not find any abuse of discretion.

AFFIRMED.

HUNTER, C.J., and HANSEN, J., concur.