Edgerly v. Vanderbilt Mortgage & Finance, Inc.

Cite as 2016 Ark. App. 241
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-15-584
NANCY EDGERLY Opinion Delivered May 4, 2016
APPELLANT
APPEAL FROM THE SEARCY
V. COUNTY CIRCUIT COURT
[NO. 65CV-13-36]
VANDERBILT MORTGAGE & HONORABLE MIKE MURPHY,
FINANCE, INC. JUDGE
APPELLEE
AFFIRMED;
MOTION TO DISMISS GRANTED IN
PART AND DENIED IN PART
BART F. VIRDEN, Judge
Nancy Edgerly appeals from the Searcy County Circuit Court order granting summary
judgment to Vanderbilt Mortgage & Finance, Inc. (Vanderbilt), and the resulting order for
delivery of two mobile homes. We affirm. Vanderbilt filed a motion to dismiss the appeal,
which we grant in part.
I. Facts
In October 1998, Nancy Edgerly purchased a mobile home from Daily Investments
and financed it through Vanderbilt Mortgage. She used the mobile home as collateral. In
December 1998, she bought another mobile home from Daily Investments and again used
Vanderbilt Mortgage to finance the home and used the second home as collateral. Edgerly
defaulted on her payments, and Vanderbilt accelerated the debt. On September 4, 2013,
Vanderbilt filed a petition for order of delivery. Vanderbilt attached its complaint and an
Cite as 2016 Ark. App. 241
affidavit for possession to the petition. In its complaint, Vanderbilt argued that it had an
immediate right to possession.
Edgerly filed a motion to dismiss Vanderbilt’s complaint on October 2, 2013, asserting
that the summons set forth “that the defendant has thirty days to file an answer but contradicts
itself with a 5-day notice.” Vanderbilt responded to the motion, stating the 120-day time
limit for service had not yet passed, so Edgerly’s motion to dismiss was premature. Vanderbilt
also responded that the summons complied with Rule 4 by giving Edgerly thirty days to file
an answer, and it also complied with Arkansas Code Annotated section 18-60-808, which
governed the action and imposed a five-day deadline to file a written objection to the petition
for order of delivery. Edgerly filed an objection to Vanderbilt’s petition for delivery on
October 16, 2013. Edgerly filed an answer/motion to dismiss the complaint/affidavit for
possession and another objection to the petition for order of delivery on October 18, 2013.
The circuit court did not rule on any of these motions.
Vanderbilt filed a motion for summary judgment on January 10, 2014, asserting that
there was no question of fact as to Edgerly’s default on the installment contracts for the homes
and that there was no question that Vanderbilt was entitled to possession of the homes.
Edgerly responded on January 27, 2014, and argued that Vanderbilt had not included all the
necessary documents showing that the security agreement had been assigned to First Merit
Bank (also Signal Bank) and that the security agreement had been perfected; thus, Vanderbilt
could not bring the suit. Vanderbilt responded by attaching a copy of the loan purchase
agreement between it and First Merit Bank. Vanderbilt also included a blanket assignment and
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bill of sale.
Edgerly appeared pro se at the February 25, 2015 hearing on the motion for summary
judgment. At the hearing, Edgerly argued that the documents Vanderbilt attached “seemed
incomplete,” “iffy,” and “muddled looking.” She asserted that the loan had been transferred
several times and that she questioned whether Vanderbilt could prove ownership. The circuit
court took the matter of the sufficiency of Vanderbilt’s proof of assignment under advisement,
and it allowed Edgerly five days to supplement the record as needed.
Around March 6, 2015, Edgerly sent a posthearing letter to the circuit court in which
she explained that she had attached documents and certificates of title that demonstrated
Vanderbilt had not perfected title and had only made a “lame attempt” at creating a chain of
title for the mobile homes. Edgerly urged the court to compare signatures and observe other
discrepancies in the documents that she alleged proved the documents had been falsified.
On March 11, 2015, the circuit court entered an order granting Vanderbilt’s motion
for summary judgment. In its order, the circuit court specifically found “that the documents
contained in the original complaint as well as those referenced in the reply to response to the
motion for summary judgment indicate sufficient proof of assignment to Vanderbilt.”
On March 18, 2015, Vanderbilt sent a proposed order of delivery to the circuit court
for its approval. Vanderbilt also sent a copy to Edgerly. In an attached letter, Vanderbilt
stated, “Pursuant to the court’s order granting plaintiff’s motion for summary judgment, a
precedent is therefore presented which will allow Vanderbilt to proceed with the repossession
of its collateral, the manufactured homes.” The order for delivery was entered on March 25,
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2015, and set forth that, pursuant to the March 11, 2015 order, Vanderbilt was entitled to an
order for delivery of the trailers and that the requirement that Vanderbilt post a bond for
delivery had been waived.
On March 31, 2015, Edgerly filed a motion to quash the March 25, 2015 order for
delivery. Edgerly argued that she had not been properly served with the proposed order, that
she would have objected to the waiver of the bond requirement if she had received proper
service and if she had been informed that she could object to the proposed order. The circuit
court did not rule on the motion to quash.
On April 9, 2015, Edgerly filed a notice of appeal from the March 11, 2015 order
granting summary judgment. On June 4, 2015, Edgerly filed a second notice of appeal from
the March 25, 2015 order for delivery.1
II. Points on Appeal
Edgerly raises four points in her appeal. First, she asserts that the circuit court lacked
subject-matter jurisdiction over the case because the replevin statutes are unconstitutional.
1
On August 5, 2015, Vanderbilt filed a motion to dismiss the appeal, arguing that the
March 11, 2015 order was not a final order, and thus, the appeal from it should be dismissed.
See Clark v. Farmers Exch., Inc., 347 Ark. 81, 86, 61 S.W.3d 140, 144 (2001) (“[A] judgment
is a final determination of the rights of the parties in an action.”) We hold that the order
granting summary judgment is a final, appealable order, and we deny the motion to dismiss
in part.
We also grant the motion to dismiss in part because Edgerly filed her notice of appeal
from the March 25, 2015 order for delivery on June 4, 2015—more than thirty days after the
order had been entered. See Ark. R. App. P.–Civ. 4(a) (2013) (Notice of appeal must be filed
within thirty days of the date an order is entered.).
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Second, she argues that summary judgment was inappropriate because material facts were in
dispute. Third, Edgerly asserts that Vanderbilt did not prove that it was properly in possession
of the loan because it did not establish a clear chain of title. Finally, Edgerly argues that
someone should have explained to her the meaning of the word “precedent” as used by
Vanderbilt in its letter attached to the proposed order for delivery. We find no merit in any
of her arguments, and we affirm.
A. The Constitutionality of Replevin Statutes
Edgerly argues that the “statutory post-judgment alternative proceeding for replevin”
should be declared unconstitutional. First, Edgerly explains that Arkansas Rule of Civil
Procedure 81 “special proceedings” do not contemplate common-law remedies, and thus,
replevin should never have been declared a Rule 81 “special proceeding” because replevin
has its roots in the common law. Edgerly argues that when replevin was incorrectly declared
to be a special proceeding, the replevin statutes unconstitutionally infringed on amendment
80 and the Arkansas Rules of Civil Procedure.
Edgerly’s argument concerning the constitutionality of the replevin statutes centers
on the five-day time constraint to object to the issuance of an order of delivery, which is
codified in Arkansas Code Annotated section 18-60-808(a)(Repl. 2015). Her argument is that
the five-day requirement within the statute and the method of calculating the date for filing
are both procedural issues, and thus, the replevin statute infringes on the rules of civil
procedure of this state, specifically Arkansas Rule of Civil Procedure 12, which allows thirty
days to file a response, and Arkansas Rule of Civil Procedure 6, which excludes certain days
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from the computation of the filing date.
It will be helpful to examine the statute and subsection at issue. The requirement is set
forth in Arkansas Code Annotated section 18-60-808:
(a) In lieu of the procedure set forth in this section and §§ 18-60-801--18-60-807, at
the time the complaint is filed and summons issued, a petitioner may obtain a notice
issued by the clerk of the court in which the proceeding is filed. The notice shall be
served with the complaint and summons and shall notify the defendant that an order
of delivery of the property described in the complaint is sought and that if any objection
is made to issuance of the order of delivery it must be in the form of a written response, filed
within five (5) days of service of the summons and complaint, excluding Sundays and legal
holidays, with a copy served on the plaintiff’s attorney.
(b)(1) In the event no written objection is filed and served within the five-day period,
the clerk shall, upon the request of the plaintiff or his or her attorney, issue the writ
forthwith.
(2) In the event a defendant files a written objection within the five-day period
specified, the clerk shall, at the request of either party, set the matter for hearing before
the circuit judge as promptly as the business of the judge shall permit.
Edgerly’s constitutional challenge to the replevin statute’s five-day requirement fails
because she has not demonstrated how she was injured by the statute. Edgerly argues that the
statutory requirement that the response/objection to the order of delivery must be filed within
five days conflicts with Arkansas Rule of Civil Procedure 12, which allows thirty days to file
a response to a complaint. Edgerly also asserts that the five-day requirement violates Rule 6
of the Arkansas Rules of Civil Procedure because the computation of the five days does not
exclude Saturdays, Sundays and legal holidays. She argues that replevin defendants are “caught
in a most hurried procedural state where they must simultaneously prepare an objection
within 5 days while adhering to a well-settled initial responsive pleading issues such as
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counterclaims and affirmative defenses.”
Edgerly did not file an objection to the order for delivery within five days of being
served with the complaint. Subsection (b)(1) dictates that when Edgerly failed to object,
Vanderbilt could have requested for the writ to be issued and the clerk of the court would
have done so. Despite Edgerly’s decision not to object to the order for delivery, Vanderbilt
did not request that a writ be issued by the clerk. Three months after the issuance of the
summons, Vanderbilt filed a summary-judgment motion, and the circuit court held a hearing.
Edgerly was allowed to supply documents after the hearing, and after the circuit court
determined that there was no question of fact, summary judgment was entered.
There is no question but that appellants must have suffered injury or belong to a class
which is prejudiced by a statute or constitutional provision before they have standing to
challenge its validity. Hamilton v. Hamilton, 317 Ark. 572, 574–75, 879 S.W.2d 416, 417
(1994); Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372 (1981). In no way was the five-day
limitation applied to Edgerly. Because Edgerly has not demonstrated how she was injured by
the five-day limitation or the method for calculating those days, her arguments concerning
the five-day requirement as an unconstitutional alternative proceeding fail for lack of standing,
and we decline to discuss the merits of her arguments.
B. Summary Judgment
Our supreme court has set forth the following standard of review with regard to
motions for summary judgment:
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Our standard of review for summary judgment cases is well established.
Summary judgment should only be granted when it is clear that there are no genuine
issues of material fact to be litigated, and the moving party is entitled to judgment as
a matter of law. The purpose of summary judgment is not to try the issues, but to
determine whether there are any issues to be tried. We no longer refer to summary
judgment as a drastic remedy and now simply regard it as one of the tools in a trial
court's efficiency arsenal. Once the moving party has established a prima facie
entitlement to summary judgment, the opposing party must meet proof with proof and
demonstrate the existence of a material issue of fact. On appellate review, we
determine if summary judgment was appropriate based on whether the evidentiary
items presented by the moving party in support of the motion leave a material fact
unanswered. We view the evidence in a light most favorable to the party against
whom the motion was filed, resolving all doubts and inferences against the moving
party. Our review focuses not only on the pleadings, but also on the affidavits and
other documents filed by the parties. Moreover, if a moving party fails to offer proof
on a controverted issue, summary judgment is not appropriate, regardless of whether
the nonmoving party presents the court with any countervailing evidence.
Harvest Rice, Inc. v. Fritz & Mertice Lehman Elevator & Dryer, Inc., 365 Ark. 573, 575–76, 231
S.W.3d 720, 723 (2006) (citations omitted). The standard is whether the evidence is sufficient
to raise a factual issue, not whether the evidence is sufficient to compel a conclusion. Wagner
v. Gen. Motors Corp., 370 Ark. 268, 258 S.W.3d 749 (2007).
Edgerly argues that the certificate of title had been forged, that the certificate had been
photoshopped and that the address listed on the title was incorrect. On this point, we affirm.
The certificates of title were not material to the issue of whether Vanderbilt could repossess
the homes as a result of Edgerly’s default on her payments; thus, no factual question arose
from the possible invalidity of the documents.
Arkansas Code Annotated section 4-9-303 (Repl. 2001) governs the perfection and
priority of security interests in goods covered by a certificate of title. The purpose of this
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section of the code is to set forth how a title is perfected so as to give notice to other lien
holders as to lien priority. The purpose of a certificate of title is not to show that the holder
has the right to take possession of the home because of default. The contract upon which she
agreed to pay for the homes is the relevant document in this case, and she does not dispute
the veracity of that document. Thus, no factual question arises from this document.
C. Chain of Title
Edgerly claims that Vanderbilt did not produce documents showing that the name of
the lien holder changed every time the debt was transferred, and thus, the chain of title was
not sufficient to show that Vanderbilt can enforce the lien.
A security agreement is effective according to its terms between the parties. Ark. Code
Ann. § 4-9-201. In In re Johnson, 407 B.R. 364 (Bankr. E.D. Ark. 2009) an assignee of a note
and security agreement who claimed a perfected security interest in a recreational vehicle that
was alleged to be property of a Chapter 7 estate had a perfected interest, even though it was
not noted on the vehicle’s certificate of title in compliance with the Arkansas Certificate of
Title Act, because the perfected security interest in the vehicle remained perfected when it
was assigned. Id. An assignment does not create a new lien, but rather an assignee simply steps
into the shoes of the assignor and obtains the assignor’s rights. Id.; see also Am. Transp. Corp.
v. Exch. Capital Corp., 84 Ark. App. 28, 36, 129 S.W.3d 312, 316 (2003) (citing First Nat’l
Bank of Fayetteville v. Mass. Gen. Life Ins. Co., 296 Ark. 28, 752 S.W.2d 1 (1988)) (an assignee
obtains the rights possessed by the assignor at the time of the assignment). In Johnson, the court
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held that
the lien granted to Key Bank complied with the requirements of subchapter 8 and was
properly perfected. The question is, did the lien remain perfected when Key Bank
assigned the lien without further action by Roswell. Official comment 4 to the UCC
§ 9-310(c) makes it clear that unless the state’s Certificate of Title Act expressly
provides to the contrary, UCC § 9-310(c) applies to assignments of liens on vehicles
and the lien will remain perfected even if the assignee takes no action.
In re Johnson, 407 B.R. at 368.
Vanderbilt was not required to take more action to perfect its lien. On this point, we
find no error, and we affirm.
D. Edgerly’s Understanding of the Word “Precedent”
Vanderbilt sent a proposed order for delivery to the circuit court, and in the attached
letter Vanderbilt stated that “a precedent is therefore presented which will allow Vanderbilt
to proceed with the repossession of its collateral. . . . If the enclosed Order for Delivery meets
with your approval, please sign and return the Order to us and we will file it with the clerk.”
The order for delivery was entered on March 25, 2015. Edgerly filed a motion to quash the
order for delivery on March 31, 2015, which the circuit court did not rule on.
Edgerly argues that this use of the word “precedent” in the order was so esoteric that
its meaning could not be understood by someone acting pro se and that this is an instance
where a pro se litigant should not be held to the same standard as an attorney. This issue
relates to the March 25, 2015 order for delivery, and as we stated earlier in this opinion,
Edgerly did not timely file a notice of appeal for this order; therefore, it is not properly before
this court, and we decline to reach the merits of this issue.
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III. Conclusion
We find no error in the circuit court’s findings, and we affirm. We grant Vanderbilt’s
motion to dismiss in part.
Affirmed; motion to dismiss granted in part and denied in part.
HIXSON and BROWN, JJ., agree.
Mullenix & Reardon, P.A., by: D. Ryan Mullenix, for appellant.
Dyke & Winzerling, P.L.C., by: Mitchel L. Berry, for appellee.
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