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CIT Bank, N.A. v. Heirs

Court of Appeals of Oklahoma, Division II

June 5, 2019

CIT BANK, N.A., Plaintiff/Appellee,
v.
THE HEIRS, PERSONAL REPRESENTATIVES, DEVISEES, TRUSTEES, SUCCESSORS AND ASSIGNS OF EDWARD J. MCGEE, DECEASED; AND THE UNKNOWN SUCCESSORS, THE HEIRS, PERSONAL REPRESENTATIVES, DEVISEES, TRUSTEES, SUCCESSORS AND ASSIGNS OF LAURA MCGEE, DECEASED, AND THE UNKNOWN SUCCESSORS; et al., Defendants, and FALCONHEAD PROPERTY OWNERS ASSOCIATION, INC., Defendant/Appellant.

          Mandate Issued: 07/03/2019

          APPEAL FROM THE DISTRICT COURT OF LOVE COUNTY, OKLAHOMA HONORABLE TODD HICKS, TRIAL JUDGE

          A. Grant Schwabe, Brian J. Rayment, KIVELL, RAYMENT AND FRANCIS, P.C., Tulsa, Oklahoma, for Plaintiff/Appellee

          Richard A. Cochran, Jr. For the Edward J. McGee

          RICHARD A. COCHRAN, JR., P.C., Marietta, Oklahoma, for the Edward J. McGee Defendants

          G. Timothy Armstrong, Edmond, Oklahoma, for Defendant/Appellant

          JOHN F. FISCHER, PRESIDING JUDGE

         ¶1 The Falconhead Property Owners Association, Inc., appeals a judgment in this foreclosure action granting CIT Bank, N.A. priority over the Falconhead lien. Because the Falconhead lien did not mature into an enforceable lien and was not perfected until after the Bank's mortgage, it is not entitled to priority over the Bank's lien. The judgment of the district court is affirmed.

         BACKGROUND

         ¶2 The real property at issue in this case is located in Love County, Oklahoma, and subject to restrictive covenants described in a Dedication of Restrictions, Conditions, Easements, Covenants, Agreements, Liens and Charges, Falconhead, Phase 1. The Dedication is dated March 10, 1971, and was recorded with the County Clerk on March 15, 1971. Falconhead is a residential and golf course development. Edward and Laura McGee purchased property in 1996 subject to the Falconhead Dedication. [1] The Dedication provided for a lien to secure the payment of any charges assessed by the Falconhead Owners Association.

         ¶3 On October 4, 2005, the McGees executed an Adjustable Rate Note and Adjustable Rate Home Equity Conversion Mortgage in favor of Financial Freedom Senior Funding Corporation and granted a mortgage on their property in the Falconhead addition to secure repayment of any funds advanced pursuant to the Note. The mortgage was recorded on November 14, 2005, and assigned to CIT Bank on December 8, 2015. The Bank recorded its assignment on January 6, 2016. The Bank filed this action on May 13, 2016, alleging that the McGees had defaulted on the loan. On May 20, 2016, Falconhead recorded a statement of lien with the Love County Clerk alleging that the McGees had failed to pay $1, 339.47 in monthly assessments beginning in December 2015.

         ¶4 The Bank amended its petition to add the Falconhead Owners Association as an additional defendant and moved for summary judgment. Falconhead responded and filed its own motion for summary judgment. The district court granted judgment in favor of both lien claimants. The sole issue in this appeal is whether the Bank's mortgage has priority over the Falconhead lien. The district court subordinated the Falconhead lien to the Bank's mortgage. Falconhead challenged that ruling by filing a motion for new trial, which the district court denied. Falconhead appeals that order and the judgment in favor of the Bank.

         STANDARD OF REVIEW

         ¶5 Title 12 O.S.2011 § 2056 governs the procedure for summary judgment in this case. A motion for summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Id. The de novo standard controls an appellate court's review of a district court order granting summary judgment. Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051. De novo review involves a plenary, independent, ...


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