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Kansas Filing Deadline Differs by Filing Type

In Kansas, unless you are electronically filing your documents, the last day for filing ends “when the clerk’s office is scheduled to close.” K.S.A. 60-206(a)(4)(B). If you are electronic or fax filing, you have until “midnight in the court’s time zone.” K.S.A. 60-206(a)(4)(A).

In JPMorgan Chase Bank, N.A. v. Taylor, No. 117,774 (Kan.App. May 11, 2018), the Court of Appeals refused to consider the homeowner’s late-filed opposition to the confirmation of the sale, noting, “any response she would have to the motion needed to be filed by the close of business.” 

In this case, JP Morgan initiated foreclosure proceedings and bought the property at the foreclosure auction for the full judgment amount. JP Morgan then filed a motion with the court to confirm the sheriff’s sale. The District Court confirmed the sale the same day without waiting for any objection and without notifying the homeowner. The District Court never served the homeowner with the Order.

Over one year later, the homeowner realized the District Court confirmed the sale and filed a motion for relief from that Order. The District Court denied the motion, and issued a minute sheet that included no findings of fact or conclusions of law.

The Court of Appeals in partially affirming and partially overturning the lower court noted that the rule requires that any “person that files a timely response objection to a motion to confirm a sheriff’s sale has the right to have that objection read and considered by the district court.” Id. at *6. Thus, “any procedure that allows for automatic approval of a sheriff’s sale without at least waiting to see if someone files an objection is subject to a later ruling that it is void as a violation of due process.” Id.

In this case, however, the Court of Appeals held that the Homeowner:

was served the motion by mail on November 13, 2015. She had seven days to respond, plus three days for mail service. K.S.A. 60-206 (a)(1)(d); Supreme Court Rule 133(b) (2018 Kan. S. Ct. R. 199). Accordingly, any response she would have to the motion needed to be filed by the close of business November 23, 2015. [Homeowner] did not file her response until November 24, 2015, so it was untimely. Therefore, even though the district court's order was premature, opening it up for a claim of violation of [Homeowner]'s due process rights, we cannot find error in the district court's failure to consider an untimely objection to confirmation of the sale.

Id. Thus, the Court of Appeals did not look at any of the arguments.

The Court of Appeals was unable to determine whether the District Court abused its discretion based solely on the minute order and remanded to the district court to make clear the findings of fact and conclusions of law.

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Attorneys: Bryan Mouber

Kansas Saving Statute Only Works Once

On May 26, 2017, the Kansas Supreme Court in Lozano v. Alvarez, (No. 113,060) 2017 Kan. LEXIS 287 (May 26, 2017)[1] tested the Kansas saving statutes, which states:

If any action be commenced within due time, and the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or, if the plaintiff die, and the cause of action survive, his or her representatives may commence a new action within six (6) months after such failure.

Kan. Stat. Ann. § 60-518. The statute allows a case that has been dismissed for a reason other than the merits to be refiled within 6 months of the dismissal, notwithstanding that the statute of limitations has expired.

The Kansas Supreme Court held that the dismissal of an action that was filed during K.S.A. 60-518's 6-month grace period does not trigger another 6-month grace period.  Thus, a third lawsuit does not relate back to the original filing and may be barred by the statute of limitations.

Lozano filed a civil action against the Alvarezes alleging injuries as a result of a battery.  Lozano I was dismissed without prejudice by the Ford County District Court for lack of prosecution.  Lozano refiled his case less than 6 months later using the Kansas savings statute. The district court dismissed Lozano II without prejudice on December 31, 2013, once again for a lack of prosecution.

Lozano refiled the action on June 18, 2014, attempting to invoke K.S.A. 60-518 a second time. (Lorenzo III). The Alvarezes moved to dismiss Lorenzao III with prejudice, claiming the savings statute did not permit the refiling.

The Kansas Supreme Court affirmed the dismissal of Lorenzo III with prejudice and declined to apply the saving statute in serial fashion, because “the 6-month grace period in the savings statute applies only to an action that was commenced during the statute of limitations period.” Id. at *12.  The Court reasoned,

the dismissal of an action that was filed during K.S.A. 60-518's 6-month grace period does not trigger another grace period because it is not an "action" to which K.S.A. 60-518 applies. In short, a plaintiff is limited to one 6-month period of grace to get a determination on the merits; refilings beyond that 6-month period are barred by the statute of limitations. Id. at *12-13.

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Attorneys: Bryan Mouber

Reunited and it Feels so Good

On April 21, 2017, the Kansas Supreme Court in FV-I, Inc. v. Kallevig, (No. 111,235) 2017 Kan. LEXIS 135 (Apr. 21, 2017)[1] reviewed a mortgage foreclosure. The dispute was between FV-I, the first mortgage holder, and Bank of the Prairie (BOP), the second mortgage holder[2]. 

One week before the foreclosure, the mortgage was assigned to FV-I.  Attached to the petition was a copy of the mortgage and a copy of the note with an undated endorsement to a third-party.  At trial, FV-I presented the original note containing an additional two endorsements, ending with an endorsement in blank.  BOP undisputedly had three junior mortgages.

BOP challenged FV-I’s standing to foreclose and the priority of its mortgages.

1.      FV-I’s Standing to Foreclose

BPO alleged that FV-I did not have standing to pursue its claim without establishing enforcement rights in the promissory note as of the date of the filing.  First, FV-I argued that it need not prove possession of the note and the existence of enforcement rights in it at the time it filed its petition in order to establish standing to pursue mortgage foreclosure. Second, FV-I argued that standing could be established by its undisputed possession of the mortgage prior to filing, even without possession of the note.

The Kansas Supreme Court held that:

standing in a foreclosure action is predicated on the plaintiff's ability to demonstrate—either in the pleadings, upon motion for summary judgment, or at trial—that it was in possession of the note with enforcement rights at the time it filed the foreclosure action. Allowing a lack of standing to be cured by a post-petition assignment granting enforcement rights in the note after the foreclosure action has been filed would defeat any incentive for a note holder to ensure that it has enforcement rights prior to filing the action.

Id. at *29.

The Court further held that “possession of the mortgage alone does not establish standing,” because “a person or entity possessing only the mortgage would never experience the cognizable injury, i.e., the default necessary to foreclose the mortgage.” Id. at 46.

The Kansas Supreme Court remanded the action to determine whether FV-I had enforcement rights in the promissory note as of the date of the filing such that it had standing to bring a foreclosure action. Id. at *37.

2.      BOP’s Priority

BOP argued that FV-I’s mortgage was unenforceable, because the note and mortgage had been split; thus, BOP’s mortgages were superior.  The District Court held that FV-I's mortgage and note had split, because the note and mortgage FV-I held had not followed the same path to FV-I, which rendered FV-I's mortgage unenforceable and allowed BOP's mortgages to jump ahead in priority. 

The Supreme Court, in overturning the holding that BOP’s mortgages had priority, noted that the lower court’s decision was based on an “overreading” Landmark Nat. Bank v. Kesler, 289 Kan. 528, 539-40, 216 P.3d 158 (2009).  Landmark, did not address the effect of a split on the priority of the mortgage or whether a separated note and mortgage could later be reunited. In short, Landmark never held that a currently unenforceable mortgage, in effect, no longer exists. The Kansas Supreme Court held that, “[r]egardless of whether a split occurred or the party capable of enforcing the note was not a party to this case, the mortgage itself still exists.” Id. at *50.

The Court remanded the case with instruction to determine whether FV-I or BOP had priority consistent with the general rules that the first to record a mortgage has priority so long as the mortgage is not released. Id.

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Related Services: Banking, Commercial and Financial Services Litigation

Attorneys: Bryan Mouber