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LPP Mortgage Ltd. v. Shelton

Court of Appeals of Oklahoma, Division IV

July 24, 2019

LPP MORTGAGE LTD., Plaintiff/Appellee,
v.
CARL D. SHELTON, Defendant/Appellant.

          Mandate Issued: 10/02/2019

          APPEAL FROM THE DISTRICT COURT OF MCCLAIN COUNTY, OKLAHOMA HONORABLE LEAH EDWARDS, TRIAL JUDGE

          Melvin R. McVay, Jr., Clayton D. Ketter, PHILLIPS MURRAH P.C., Oklahoma City, Oklahoma, for Plaintiff/Appellee

          Sherry Doyle, SHERRY DOYLE, PLLC, Edmond, Oklahoma, for Defendant/Appellant

          JANE P. WISEMAN, VICE-CHIEF JUDGE

         ¶1 Carl D. Shelton appeals a trial court order denying his petition to vacate a summary judgment that was reinstated in favor of LPP Mortgage Ltd. on remand, in accordance with directions this Court issued in Case No. 114, 938. The primary issue on appeal is whether the trial court abused its discretion in denying the petition to vacate. We conclude that the settled-law-of-the-case doctrine precludes Shelton from challenging the entry of summary judgment and therefore the trial court did not abuse its discretion in denying the petition to vacate. [1] We affirm the trial court's order.

         FACTS AND PROCEDURAL BACKGROUND

         ¶2 The background facts were fully set out in our Opinion in Case No. 114, 938. There we noted that New South Federal Savings Bank filed a petition for foreclosure of a mortgage on January 28, 2010, alleging Shelton (1) executed a promissory note on or about September 30, 2008, in which he agreed to pay Global Lending Group the sum of $192, 448, plus interest, in monthly installments of $1, 604.18, and (2) executed a real estate mortgage on property located at 3614 Stonebrook Drive, Norman, Oklahoma. New South claimed (1) the note was assigned by Global to New South which presently holds the note, (2) payments were due and have not been made on the account, and (3) the principal sum of $191, 486.49 plus interest is now due.

         ¶3 We also noted that LPP asked the trial court in February 2010 to allow it to be substituted as plaintiff because it "is now the owner of the Mortgage at issue." In March 2010, the trial court granted LPP's application. In June 2014, LPP filed a motion to amend the petition (1) to allege that after the petition was filed, "LPP has determined that it cannot reasonably obtain possession of the original Note because its whereabouts are unknown," and (2) to attach a lost note affidavit. After the trial court granted LPP's motion, it filed an amended petition in September 2014 adding the allegation that the note had been lost but LPP is entitled to enforce the note pursuant to 12A O.S. § 3-301. LPP filed with its amended petition an affidavit of lost note from Kent Twitchell, who detailed the transfers of the note and the facts surrounding the note's loss. In his affidavit, he referred to and attached a copy of the original note with allonges from Global Lending to New South, from the FDIC as receiver for New South to Beal Bank, from Beal Bank to Property Acceptance Corp., and from Property Acceptance Corp. to LPP Mortgage Ltd.

         ¶4 LPP sought summary judgment on its claims against Shelton and in its favor on Shelton's counterclaims. A hearing on the motion was set for December 2, 2015, but Shelton failed to respond to the motion, request additional time, or appear at the hearing. The trial court granted judgment in favor of LPP on the promissory note, ordered the mortgage foreclosed, and granted LPP judgment on Shelton's counterclaims.

         ¶5 On January 4, 2016, Shelton filed a motion to vacate contending questions of material fact remained that precluded summary judgment and asserting the trial court should dismiss the case because LPP lacked standing and the court lacked jurisdiction. After the trial court granted Shelton's motion to vacate and overruled LPP's motion for summary judgment finding that "genuine issues of material fact exist," LPP appealed.

         ¶6 On October 24, 2017, in Case No. 114, 938, we held LPP established its standing to enforce the note when it filed its amended petition. We concluded that LPP presented evidence in its motion for summary judgment that it was entitled to judgment as a matter of law on its claims, including evidence that as the holder of the note in question, it was entitled to enforce the note when it filed its petition. We noted Shelton failed to present any evidence to counter the claim of default and concluded Shelton failed to show sufficient cause to grant his motion to vacate. We held that LPP's summary judgment motion and supporting materials, undisputed by Shelton, established it was entitled as a matter of law to judgment on the note and to foreclosure of the securing mortgage. Shelton failed to counter that showing or to give sufficient cause for vacating the judgment. Although he argued there were questions of fact about whether LPP had standing, we determined that the record established LPP had standing.

         ¶7 We noted in that Opinion that there was no error in the trial court's entry of summary judgment, including granting judgment on the note and foreclosing the mortgage, where LPP established it was entitled to judgment as a matter of law. We concluded, "Vacating the judgment was an abuse of discretion when the original summary judgment was correct as a matter of law and Shelton failed to show sufficient cause to vacate that judgment." We reversed the trial court's decision and directed it to reinstate the summary judgment in favor of LPP.

         ¶8 On March 5, 2018, LPP filed an application with the trial court to reinstate the summary judgment in its favor. In its application, LPP maintained that after this Court issued its Opinion instructing the trial court to reinstate the summary judgment in LPP's favor, Shelton filed a petition for writ of certiorari, which the Supreme Court denied. ...


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