Mandate Issued: 07/03/2019
FROM THE DISTRICT COURT OF LOVE COUNTY, OKLAHOMA HONORABLE
TODD HICKS, TRIAL JUDGE
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
Timothy Armstrong, Edmond, Oklahoma, for Defendant/Appellant
F. FISCHER, PRESIDING JUDGE
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.
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.  The Dedication provided
for a lien to secure the payment of any charges assessed by
the Falconhead Owners Association.
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.
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.
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,