Mid Kansas Federal Savings & Loan Ass'n v. Burke

660 P.2d 569, 8 Kan. App. 2d 443, 1983 Kan. App. LEXIS 135
CourtCourt of Appeals of Kansas
DecidedMarch 17, 1983
DocketNo. 54,369
StatusPublished
Cited by2 cases

This text of 660 P.2d 569 (Mid Kansas Federal Savings & Loan Ass'n v. Burke) 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
Mid Kansas Federal Savings & Loan Ass'n v. Burke, 660 P.2d 569, 8 Kan. App. 2d 443, 1983 Kan. App. LEXIS 135 (kanctapp 1983).

Opinions

Swinehart, J.:

This is an appeal by Caldwell and Associates, Inc. (Caldwell), from the order of the District Court of Sedgwick County sustaining defendant Carole J. Burke’s motion to set aside a sheriffs sale on the ground that personal service was never obtained upon her in the foreclosure action.

[444]*444Defendant Carole J. Burke and her husband, James R. Burke, defaulted on a loan with Mid Kansas Federal Savings and Loan Association of Wichita. The Burkes assumed the $22,000 note on June 30, 1980, when purchasing their home. The note was secured by a first mortgage on the home. Mid Kansas subsequently commenced foreclosure proceedings. The sheriffs return indicates that a deputy went to the parties’ residence on May 2,1981, and handed the summons and a copy of the petition to James Burke as service of process upon him, and then handed him a summons and a copy of the petition as service of process upon his wife Carole J. Burke. Neither party answered the foreclosure petition.

On June 23, 1981, the trial court granted default judgment on the petition. The journal entry, filed on June 24, 1981, indicates that the court found that it had jurisdiction over the parties and over the subject matter of the action. Personal judgment was rendered against the Burkes with an order that if it were not timely paid, the real estate was to be sold at public auction by the sheriff.'

The judgment was not paid, and the sheriff proceeded to advertise and conducted a sale on August 12, 1981. The successful bidder was appellant Caldwell with a bid of $23,900 for the house which, one of Carole Burke’s witnesses testified, was valued at $74,000. A journal entry of confirmation was filed August 18, 1981, and the redemption period was fixed at six months.

The redemption period expired February 12, 1982. On February 23,1982, a writ of assistance was issued. On March 8, 1982, Carole Burke filed her motion to vacate pursuant to K.S.A. 60-255(b) and 60-260(£>). A stay on the writ of assistance was subsequently obtained.

On March 17, 1982, the motion to vacate was heard. Carole Burke maintained that personal service of process had not been obtained over her in the foreclosure action, and that she was never notified of the proceedings and therefore was denied the opportunity to be represented and protect her interest in this matter. Her basis for the claim of improper service is that her husband had a drinking problem and therefore was not a person of suitable discretion to leave her service with. According to Carole Burke’s testimony, her first knowledge of the foreclosure [445]*445proceeding was the service of the writ of assistance. She further testified that up until that point, she had assumed that her husband was making the mortgage payments.

The trial court found that no personal service of summons was had upon Carole Burke in this matter, and that the service of summons had upon Mrs. Burke by leaving a copy thereof with her husband James Burke did not comply with the provisions of K.S.A. 1982 Supp. 60-304(a) in that Mr. Burke was not a person of suitable discretion. The court then found:

“As to defendant, Carole J. Burke, all proceedings subsequent to and including the Journal Entry of Judgment herein should be set aside upon condition that the defendant pay to the Clerk of the District Court of Sedgwick County, Kansas, the sum of $26,152.84, as reimbursement to Caldwell & Associates, Inc., for the sum paid by it at the sale, and for funds advanced to pay an insurance policy, and including interest thereon at the rate of 15% per annum.”

Caldwell appeals, raising the following issues: (1) Whether the trial court was without jurisdiction to grant the relief requested in defendant’s motion to vacate since the motion was made after redemption rights had expired; (2) whether the trial court erred in finding that proper service of process was never made on Carole J. Burke; and (3) whether the trial court’s decision, as set forth in its journal entry, has a discernible meaning and practical application.

Appellant Caldwell first contends that the trial court was without jurisdiction to entertain defendant’s motion to vacate since the period of redemption had passed. For support of its position, Caldwell relies primarily upon the decision in Needham v. Young, 205 Kan. 603, 470 P.2d 762 (1970). In Needham, the plaintiff argued that the trial court erred in vacating an execution sale of real estate for the reason defendant’s motion was not timely made. The court disagreed and stated:

“The sale was held on October 17, 1967. The order vacating the sale was entered December 4,1968. This was less than fourteen months after the sale and well within the eighteen month period of redemption set by the court.
“K.S.A. 60-260(/.>) authorizes a court on motion and upon such terms as are just to relieve a party from a final judgment, order or proceeding. The bases for such a motion are listed in the statute. The sixth basis listed is for any reason justifying relief from the operation of the judgment, order or proceeding. The time specified in the statute for filing such a motion is ‘a reasonable time’. A reasonable time is not a precise period such as the one year limitation specifically placed on motions filed for reasons (1), (2) and (3) in this statute. Judicial discretion is indicated when the time specified by statute merely has to be reasonable.
[446]*446“When real estate is sold on execution and a period of redemption fixed under the provisions of K.S.A. 60-2414 a motion to set aside the sale proceedings is within a reasonable time as required by K.S.A. 60-260(b)(6) if it is filed during the period of redemption set by the court. To hold otherwise would be to disregard the purposes of the redemption statute which is to prevent hardship and inequity.” pp. 605-6. (Emphasis supplied.)

Caldwell maintains that Needham stands for the proposition that a motion to vacate made after the period of redemption is not made within a reasonable time.

We find Caldwell’s argument to be without merit. K.S.A. 60-260(b) provides: “The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken.” While the period set for redemption is a proper factor to consider when determining whether or not a motion to set aside the sale proceedings is made within a reasonable time, it is not a conclusive factor. In Needham the defendant had an eighteen-month period of redemption. In the present case, the defendants had a six-month period of redemption. Carole Burke filed her motion to vacate under 60-255(b) and 60-260(¿>) well within the one year maximum provision of 60-260(¿>), and certainly within a reasonable period. See also Barkley v. Toland, 7 Kan. App. 2d 625, 646 P.2d 1124, rev.

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Related

In Re the Marriage of Hunt
697 P.2d 80 (Court of Appeals of Kansas, 1985)
Mid Kansas Federal Savings & Loan Ass'n v. Burke
666 P.2d 203 (Supreme Court of Kansas, 1983)

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Bluebook (online)
660 P.2d 569, 8 Kan. App. 2d 443, 1983 Kan. App. LEXIS 135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mid-kansas-federal-savings-loan-assn-v-burke-kanctapp-1983.