Mortgage Electronic Registration Systems, Inc. v. MainSource Bank

425 S.W.3d 892, 2014 WL 685488, 2014 Ky. App. LEXIS 32
CourtCourt of Appeals of Kentucky
DecidedFebruary 21, 2014
DocketNo. 2012-CA-001168-MR
StatusPublished
Cited by2 cases

This text of 425 S.W.3d 892 (Mortgage Electronic Registration Systems, Inc. v. MainSource Bank) 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
Mortgage Electronic Registration Systems, Inc. v. MainSource Bank, 425 S.W.3d 892, 2014 WL 685488, 2014 Ky. App. LEXIS 32 (Ky. Ct. App. 2014).

Opinion

OPINION

VANMETER, Judge:

Mortgage Electronic Registration Systems (“MERS”) and its assignee Bank of America, N.A. appeal from the Jefferson Circuit Court’s order denying their CR1 59.05 motion to vacate the order confirming the Master Commissioner’s sale and ordering deed. For the following reasons, we reverse and remand.

On March 14, 2006, Carmen Griffith (now Spalding) took out a loan to purchase her home and, in exchange, executed a mortgage in favor of MERS as assignee of American Mortgage Service Company (“AMS”), its successors and assigns. The mortgage to MERS was recorded on March 21, 2006 (the “2006 mortgage”). Bank of America is the current assignee of that note and the 2006 mortgage.

On November 24, 2010, Carmen and her husband, Kevin Spalding, executed another mortgage on the residential property in favor of MainSource. This mortgage was recorded on January 6, 2011, and served as security for a consolidated business loan to the Spaldings’ company, C & K Oil Company, LLC (the “2011 mortgage”). Less than three months later, MainSource declared its note with the Spaldings to be in default, and filed an action in Jefferson Circuit Court for a money judgment and to foreclose the 2011 mortgage.

In MainSource’s First Amended Complaint, MainSource acknowledged the existence of three potential liens on the property, including the 2006 mortgage to MERS. MainSource named MERS as a defendant in the Amended Complaint, and called for MERS to enter its claims to the property or be forever barred. MERS did not file an answer or appearance, leading MainSource to file a motion for default judgment. A copy of this motion was sent to the registered agent of MERS, but still no answer was filed. A few months later, AMS assigned the MERS mortgage to Bank of America. No party notified Main-Source of this assignment. On September 28, 2011, MainSource renewed its motion for default judgment following a temporary stay due to Carmen Spalding’s petition for bankruptcy. A copy of this motion was tendered to MERS’s counsel, and again, MERS failed to answer or notify MainSource of the 2006 mortgage’s assignment to Bank of America.

On January 18, 2012, the court entered a default judgment in favor of MainSource. The judgment provided that the subject property was to be sold by the Master Commissioner “free and clear of all liens and encumbrances of the parties,” and identified MainSource as first priority mortgage lienholder. The Master Commissioner set a sale date of March 6, 2012, for the property. Bank of America filed its first motion, a motion for the sale to be subject to its mortgage, on February 23, 2012, which the court denied, noting “Default Judgment entered after proper service.”

The property sold on March 6, 2012, with MainSource as the highest bidder. Bank of America then filed a second mo[894]*894tion following the judicial sale, asking the court to find the sale invalid. This second motion was referred to the Master Commissioner. The Master Commissioner entered an Amended Report of Sale2 on March 13, 2012, but did not address Bank of America’s second motion. Upon Main-Source’s March 27, 2012 motion to confirm, the court confirmed the Master Commissioner’s Amended Report of Sale.

In an April 18, 2012, supplemental report,3 the Master Commissioner recommended that the court deny Bank of America’s second motion. Two days later, the court entered an order confirming the Master Commissioner’s supplemental report. On April 30, 2012, Bank of America filed its third and final motion, a motion to vacate the order confirming the Master Commissioner’s supplemental report and denying Bank of America’s second motion. Along with its motion, Bank of America filed objections to the supplemental report. In its motion, Bank of America claims the court improperly confirmed the supplemental report prior to the expiration of the ten days allowed for objections to the report in CR 53.05(2), and the confirming order should therefore be vacated. The court denied Bank of America’s motion to vacate on May 31, 2012; that denial is the subject of this appeal.

CR 59.05 states: “A motion to alter or amend a judgment, or to vacate a judgment and enter a new one, shall be served not later than 10 days after entry of the final judgment.” In general, a trial court has unlimited power to alter, amend, or vacate its judgments. Gullion v. Gullion, 163 S.W.3d 888, 891-92 (Ky.2005). The Supreme Court of Kentucky has limited the grounds for relief under CR 59.05 to those established by its federal counterpart, Federal Rule of Civil Procedure 59(e). Id. at 893.

There are four basic grounds upon which a Rule 59(e) motion may be granted. First, the movant may demonstrate that the motion is necessary to correct manifest errors of law or fact upon which the judgment is based. Second, the motion may be granted so that the moving party may present newly discovered or previously unavailable evidence. Third, the motion will be granted if necessary to prevent manifest injustice. Serious misconduct of counsel may justify relief under this theory. Fourth, a Rule 59(e) motion may be justified by an intervening change in controlling law.

Id. (internal footnote omitted). A trial court’s ruling on a CR 59.05 motion is reviewed under an abuse of discretion standard. Bowling v. Kentucky Dept. of Corr., 301 S.W.3d 478, 483 (Ky.2009).

Bank of America raises two arguments on appeal. First, Bank of America raises a procedural argument, asserting that the court did not comply with CR 53.05 when confirming the Master Commissioner’s supplemental report. Second, Bank of America argues that substantively, the property should not have been sold free and clear of the 2006 mortgage because Bank of America asserted its claim prior to the judicial sale.

Under Bank of America’s first argument, it claims that because CR 53.05 requires a ten-day period for the filing of objections to a Master Commissioner’s re[895]*895port, the trial court abused its discretion by confirming the Master Commissioner’s supplemental report two days after the report was filed and by failing to rule on Bank of America’s objections to the report. CR 53.05 states:

(2) Action on report. Within 10 days after being served with notice of the filing of the report any party may serve written objections thereto upon the other parties. Application to the court for action upon the report and upon objections thereto shall be by motion and upon notice as prescribed in CR 6.04. The court after hearing may adopt the report, or may modify it, or may reject it in whole or in part, or may receive further evidence, or may recommit it with instructions.

We agree with Bank of America that, procedurally, the court should not have confirmed the Master Commissioner’s report before the ten-day period for objections had closed. Moreover, we agree with Bank of America’s substantive claim that under KRS4 426.006 and 426.690, the court improperly confirmed the judicial sale without making it subject to Bank of America’s senior mortgage.

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Bluebook (online)
425 S.W.3d 892, 2014 WL 685488, 2014 Ky. App. LEXIS 32, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mortgage-electronic-registration-systems-inc-v-mainsource-bank-kyctapp-2014.