Independent Financial, Inc. v. Wanna

186 P.3d 196, 39 Kan. App. 2d 733, 2008 Kan. App. LEXIS 82
CourtCourt of Appeals of Kansas
DecidedMay 23, 2008
DocketNo. 98,761
StatusPublished

This text of 186 P.3d 196 (Independent Financial, Inc. v. Wanna) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Independent Financial, Inc. v. Wanna, 186 P.3d 196, 39 Kan. App. 2d 733, 2008 Kan. App. LEXIS 82 (kanctapp 2008).

Opinion

Caplinger, J.:

Independent Financial, Inc. (IFI), appeals the district court’s grant of summary judgment in favor of Argent Mortgage Company, LLC (Argent). The district court held that IFI, an unlicensed assignee of a supervised loan, had no authority to collect on the loan or enforce its terms pursuant to the provisions of the Kansas Uniform Consumer Credit Code (KUCCC), K.S.A. 16a-l-101 et seq.

Because the district court correctly interpreted K.S.A. 16a-2-301(2) to provide that IFI, as an unlicensed assignee of a supervised loan, had no authority to collect on the subject loan or enforce its terms, we affirm the summary judgment.

Factual and procedural background

This case arises out of a mortgage foreclosure action on a home owned by Ronald Wanna and Susan Harjo. In 1998, Wanna and Harjo took out a second mortgage on their Lawrence home from Ditech Funding Corporation (Ditech) in the amount of $85,000, with an interest rate of 13.75%. Ditech was a supervised lender in Kansas when it made this loan. At the time Wanna and Harjo executed the Ditech note and mortgage, tire property was subject to a first mortgage held by Countrywide Mortgage (Countrywide).

Wanna and Harjo subsequently defaulted on their payments to Ditech. Ditech unsuccessfully attempted to setde the outstanding debt; on April 28, 2004, Ditech assigned the note and mortgage to IFI. At the time it took the assignment, IFI was not a supervised lender licensed by the State of Kansas. The Internal Revenue Ser[735]*735vice (IRS) also filed a tax lien on the property, seeking recovery of unpaid taxes.

Negotiations between the parties resulted in an agreement that IFI and the IRS would subordinate their respective liens if Wanna and Harjo agreed to: (1) pay Countrywide in full; (2) pay IFI $36,000, plus $75 per month until the loan was paid in full; and (3) pay the IRS the balance of the available funds, which was believed to be $2,000. Wanna and Harjo signed a promissory note with Argent to obtain the funding for these agreements. Argent paid Countrywide in full and paid IFI $36,000 prior to obtaining or recording the necessary subordination agreements.

Wanna and Harjo received approximately $5,000 in cash from the closing but did not make any payments to the IRS. Wanna and Harjo also failed to make monthly payments to IFI. IFI filed the present action seeking foreclosure of its mortgage and money damages from Wanna and Harjo. Wanna and Harjo subsequently filed for bankruptcy; as a result, the present case is now an in rem action against real property.

Argent answered, alleging that pursuant to the earlier agreement, IFI’s mortgage was inferior and subordinate to Argent’s lien. Argent then moved for summary judgment, seeking dismissal of IFI’s claim for the reason that IFI was not a supervised financial organization and failed to obtain a license pursuant to K.S.A. 16a-2-301(2). Consequently, Argent claimed the Ditech loan was void and IFI was prohibited from undertaking direct collection of the loan.

District Judge Paula Martin issued a well-reasoned and thorough memorandum decision, entering summary judgment in favor of Argent. Judge Martin concluded that although the Ditech loan was not void, IFI, as an unlicensed assignee, violated K.S.A. 16a-2-301(2). As such, the court held that IFI was prohibited from collecting on the loan and foreclosing on the mortgage. The district court reasoned:

“Barring unlicensed assignees from collecting on supervised loans protects debtors to the extent they require protection. When a lender becomes licensed, it has satisfied the State of Kansas that its collection procedures are within regulatory limits. To make the rule otherwise would subject lenders to the possibility [736]*736of being permanently barred from collecting on otherwise legal loans. The entity is barred from collecting until it is licensed, and in the meantime, the debtor is protected.”

IFI sought to amend the district court’s order to permit IFI to take an interlocutory appeal. The district court denied the motion, instead entering a final journal entry decree of foreclosure, which incorporated the court’s previous order that IFI was prohibited from collecting on the Ditech loan and foreclosing on the mortgage.

IFI appeals. After the filing of this appeal, the appellees moved for an involuntaiy dismissal of the appeal, arguing it had become moot by the sale of the subject property at foreclosure. We denied the motion.

Discussion

On appeal, IFI challenges the summary judgment order, arguing the district court erred in finding that IFI’s violation of K.S.A. 16a-2-301(2) prohibits it from collecting on the Ditech loan and foreclosing on the mortgage.

Our standard of review of a summary judgment decision is often stated:

“ ‘ “ ‘Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, [appellate courts] apply the same rules and where we find reasonable minds could differ as to tire conclusions drawn from the evidence, summary judgment must be denied.’ ” ’ [Citations omitted.]” Korytkowski v. City of Ottawa, 283 Kan. 122, 128, 152 P.3d 53 (2007).

Additionally, to resolve this issue we must interpret several provisions of the KUCCC, K.S.A. 16a-l-101 et seq. The interpretation of a statute is a question of law over which appellate courts have [737]*737unlimited review. LSF Franchise REO I v. Emporia Restaurants, Inc., 283 Kan. 13, 19, 152 P.3d 34 (2007).

“The fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutoiy scheme. Ordinaiy words are given their ordinaiy meanings. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. [Citation omitted.]”

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Bluebook (online)
186 P.3d 196, 39 Kan. App. 2d 733, 2008 Kan. App. LEXIS 82, Counsel Stack Legal Research, https://law.counselstack.com/opinion/independent-financial-inc-v-wanna-kanctapp-2008.