Kim Telesford-Mapp v. Waterside Tax Service

• Court: Court of Appeals of Kentucky
• Decided: April 28, 2022
• Docket: 2019 CA 001555
• Status: Unknown

Opinion

RENDERED: APRIL 29, 2022; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2019-CA-1555-MR

KIM TELESFORD-MAPP AND ANTHONY MAPP APPELLANTS

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE ANNIE O’CONNELL, JUDGE ACTION NO. 16-CI-401155

WATERSIDE TAX SERVICE AND LAMONT ALLEN CHANDLER APPELLEES

OPINION AFFIRMING

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BEFORE: ACREE, CALDWELL, AND LAMBERT, JUDGES.

LAMBERT, JUDGE: Kim Telesford-Mapp and Anthony Mapp (the Appellants or

Mapps) appeal from the Jefferson Circuit Court orders concerning the master

commissioner’s sale of the Mapps’ property in Louisville, Kentucky. We affirm.

The Mapps, husband and wife, were co-owners of rental property,

purchased by them in 2006, at 2204 West Chestnut Street in Louisville. The Mapps became delinquent in tax payments, and a levy against them was assessed

on January 1, 2014. Waterside Tax Service purchased the lien in July 2015 and

one year later filed a foreclosure action against the Mapps (and other named

parties) to collect monies due. Waterside requested that the property be sold to

satisfy the lien and costs expended, including attorney fees.

In December 2017, the Jefferson Circuit Court entered judgment to

Waterside and ordered the property to be sold the following month. Prior to sale,

the property appraised for $65,000.00. The master commissioner’s sale was held

on January 19, 2018, and Lamont Chandler was the successful bidder for

$25,000.00. On that same date, the Mapps filed for Chapter 13 bankruptcy

protection in United States Bankruptcy Court for the Western District of Kentucky;

they listed the Chestnut Street property as part of the debtors’ estate.

The master commissioner filed the sale report a week later, noting

that, because the purchase price was less than two/thirds (2/3) of the appraised

value, the Mapps’ six-month right of redemption was triggered as of the date of the

sale. Kentucky Revised Statute (KRS) 426.530.1 On February 1, 2018, Chandler

1 This statute provides as follows:

(1) If real property sold in pursuance of a judgment or order of a court, other than an execution, does not bring two-thirds (2/3) of its appraised value, the defendant and his or her representatives may redeem it within six (6) months from the day of sale, by paying the original purchase money and ten percent (10%) per annum interest thereon, and any reasonable

-2- filed a motion to confirm the sale and pay his bid price into court. The Mapps

objected to Chandler’s motion on the grounds that there were unresolved claims

pertaining to the property; however, they did not file exceptions to the master

commissioner’s sale report.

On February 28 of that year, the circuit court entered the order paying

into court and issued a deed to Chandler. In September 2018, the Mapps moved,

pursuant to Kentucky Rule of Civil Procedure (CR) 60.02,2 to vacate the order

costs incurred by the purchaser after the sale for maintenance or repair of the property, including but not limited to utility expenses, insurance, association fees, taxes, and the costs to conform the property to the minimum standards of local nuisance code provisions and other local ordinances as authorized in KRS 65.8801 to 65.8839.

(2) The defendant shall pay the redemption money to the clerk of the court in which the judgment was rendered or the order of sale was made. Upon payment by the defendant, the master commissioner shall convey the real property to the defendant.

(3) When the right of redemption exists, the purchaser shall receive an immediate writ of possession and a deed containing a lien in favor of the defendant, reflecting the defendant’s right to redeem during the statutory period. 2 CR 60.02 reads:

On motion a court may, upon such terms as are just, relieve a party or his legal representative from its final judgment, order, or proceeding upon the following grounds: (a) mistake, inadvertence, surprise or excusable neglect; (b) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59.02; (c) perjury or falsified evidence; (d) fraud affecting the proceedings, other than perjury or falsified evidence; (e) the judgment is void, or has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable

-3- confirming the sale. The circuit court, in an order dated October 9, 2018, ruled that

it would withhold further action until the bankruptcy court determined whether the

property in this litigation was part of the bankruptcy estate.

The bankruptcy court ordered, on December 10, 2018, that the subject

property was not part of the bankruptcy estate, that the master commissioner’s sale

had been completed before the Mapps filed their bankruptcy action, and that the

right of redemption period for the Mapps ended on July 19, 2018. Because the

Mapps did not timely exercise their right of redemption, the bankruptcy court held

that they no longer held any interest in the property. On February 21, 2019, the

bankruptcy court denied the Mapps’ motion to reconsider. The Mapps’ bankruptcy

petition was dismissed on June 4, 2019, for failure to appear.

The Jefferson Circuit Court, on August 13, 2019, adopted the

bankruptcy court’s findings and denied the Mapps’ September 2018 motion to

vacate the order confirming the master commissioner’s sale. A writ of possession

was entered on October 3, 2019, and the Mapps filed their appeal a week later.

The entirety of the Mapps’ prayer for relief hinges on what time the

gavel fell at the master commissioner’s sale, i.e., whether the bidding on the

that the judgment should have prospective application; or (f) any other reason of an extraordinary nature justifying relief. The motion shall be made within a reasonable time, and on grounds (a), (b), and (c) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this rule does not affect the finality of a judgment or suspend its operation.

-4- subject property concluded prior to the Mapps filing their petition in bankruptcy

court. The findings of the bankruptcy court were based on the evidence presented

by the parties and clearly state: the gavel fell at 10:43 a.m. on January 19, 2018.

Chandler texted a friend at 10:57 a.m. that he had the successful bid. He presented

proof of his 10% purchase money, and he left the master commissioner’s office at

approximately 11:14 a.m. The bankruptcy petition was time-stamped as filed at

11:24 a.m. on that same date.

The Mapps contend that the circuit court abused its discretion when it

failed to uphold their right of redemption, arguing that “the date of the

confirmation of sale is the timing mechanism” for them to exercise their right

rather than when the gavel fell. Until the master commissioner’s affidavit was

filed on August 28, 2018, the Mapps continue, “there was no way for Appellants to

be sure that the Property was sold prior to the filing of the bankruptcy.” Because

the bankruptcy court included the master commissioner’s affidavit in its ruling, the

Mapps insist that the sale could not have been confirmed prior to that date, thus

extending their right of redemption for six months hence.

On appeal, “[w]e review the denial of a CR 60.02 motion under an abuse of discretion standard.” Foley v. Commonwealth, 425 S.W.3d 880, 886 (Ky. 2014) (citing Brown v. Commonwealth, 932 S.W.2d 359, 362 (Ky. 1996)). “The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”

-5- Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). VerraLab Ja LLC v. Cemerlic, 584 S.W.3d 284, 287 (Ky. 2019).

“[A] debtor’s right to cure a home mortgage default [is] ‘when the

gavel comes down on the last bid at the foreclosure sale.’” In re Cain, 423 F.3d

617, 621 (6th Cir. 2005) (citing to In re Crawford, 232 B.R. 92, 96 (Bankr. N.D.

Ohio 1999). Nothing in the Mapps’ arguments convinces us otherwise. We have

examined the record thoroughly and can find no abuse of discretion nor irregularity

of any kind. The circuit court properly denied the Mapps’ CR. 60.02 motion.

VerraLab, 584 S.W.3d at 288.

The judgment of the Jefferson Circuit Court is affirmed.

ALL CONCUR.

BRIEF FOR APPELLANTS: BRIEF FOR APPELLEE LAMONT ALLEN CHANDLER: Marque Carey Louisville, Kentucky Brad Lammi Louisville, Kentucky

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