The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
REGIONS BANK d/b/a REGIONS MORTGAGE PLAINTIFF
V. CASE NO. 3:22-CV-3001
KEVIN CREEKMORE; AMY CREEKMORE;
ANGIE MARIE BROWN, Heir of Irene Thomas
JASON SCOTT MANEN, Heir of Irene Thomas
f/k/a JASON ACOTT MANEN; MELISSA LYNN
PECK, Heir of Irene Thomas f/k/a MELISSA
MANEN PECK; DANIEL HOWARD THOMAS,
Heir of Irene Thomas, Executor of the Estate of
Irene Thomas, and the Successor Trustee of the
Thomas Family Living Trust DEFENDANTS
OPINION AND ORDER
Currently before the Court are a Motion for Summary Judgment (Doc.52), Brief in
Support (Doc. 53), and Statement of Facts (Doc. 54) filed by Plaintiff Regions Bank d/b/a
Regions Mortgage (“Regions”). No Defendant filed a response to the Motion.
Summary judgment under Federal Rule of Civil Procedure 56(c) is appropriate “if
the pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” Summary judgment
must enter
against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial. In such a situation, there can be
“no genuine issue as to any material fact,” since a complete failure of proof
concerning an essential element of the nonmoving party's case necessarily
renders all other facts immaterial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322–33 (1986). The moving party is entitled to a
judgment as a matter of law when the nonmoving party fails “to make a sufficient showing
on an essential element of her case with respect to which she has the burden of proof.”
Id. at 323.
The following facts are undisputed. Regions is the current owner and holder of a
Note securing real property owned by Defendants Kevin and Amy Creekmore. See Doc.
53, pp. 31–32. Concurrently with the execution of the Note and to secure its payment,
the Creekmores executed in favor of and delivered to Mortgage Electronic Registration
Systems, Inc. (“MERS”), as nominee for Regions and its successors and assigns, a deed
of trust on the property. See id. at pp. 34–43. This deed of trust was duly acknowledged
and recorded in the real property records of Boone County, Arkansas, on October 7, 2008,
as Document/Instrument No. 08-006151 (“Security Instrument”). Id. The recording of the
Security Instrument created a first lien on the real property.
Subsequently, the Creekmores and MERS executed an Extension and
Modification Agreement whereby the interest rate and monthly payments due under the
Note and Security Instrument were reduced. Id. at pp. 31–32, 45–49. The Extension and
Modification Agreement was duly acknowledged and recorded in the real property records
of Boone County, Arkansas, on April 2, 2011, as Document/Instrument No. 2011001199
(“Modification Agreement” and together with the Note and Security Instrument, “Loan
Agreement”). Id. at pp. 45–49. MERS assigned and transferred all of its right, title, and
interest in the Security Instrument to Regions, as reflected by the Corporate Assignment
of Mortgage, filed in the real property records of Boone County, Arkansas, on September
13, 2012, as Document/Instrument No. 2012004820. Id. at pp. 51–52. Regions is the
current owner and holder of the Note and beneficiary of the Loan Agreement.
The Modification Agreement required the Creekmores to make monthly payments
in the amount of $641.53, with an additional amount of added to fund escrow,
commencing on the first day of March 2011, and on the first day of each month thereafter.
See id. at p. 46, ¶ 2. Under the terms of the Loan Agreement, the Creekmores were
required to pay the principal and interest on the debt evidenced by the Note, as well as
any applicable charges and fees due under the Note. If they failed to make such
payments or failed to comply with any or all of the covenants and conditions of the
Security Instrument, then the lender could require immediate payment in full of all
outstanding principal and accrued interest owed on the Note. According to the Loan
Agreement, the lender was permitted to enforce the Security Instrument by selling the
subject property according to law and in accordance with the provisions set out in the
Agreement.
The Creekmores failed to make the required monthly payments under the Loan
Agreement. On May 14, 2019, Regions sent a Notice of Default and Intent to Accelerate
to the Creekmores to the subject property’s address and to the Creekmores’ last known
mailing address, via first-class mail, in accordance with the Loan Agreement and the
Arkansas Property Code. See id. at pp. 54–73. The Notice of Default informed the
Creekmores that the Loan Agreement was in default and the debt would be accelerated
if they did not cure the default by June 18, 2019. Id.
On October 3, 2019, Regions Bank mailed the Creekmores correspondence
entitled “Information Provided under Arkansas Code Section 18-50-103(2)(A),” via regular
mail, to the subject property’s address and to the Creekmores’ last known mailing
address, with the following enclosures: 1) Note; 2) Modification Agreement; 3) Security
Instrument; 4) Corporate Assignment of Mortgage to Regions; and 5) a payment history
showing the date of default. See id. at pp. 75–98. The default was not cured and the Note
was accelerated.
On November 8, 2019, Regions sent the Creekmores a Notice of Acceleration to
their last known address, 823 W. Alma Ave. Harrison, Arkansas 72601, in accordance
with the Loan Agreement and the Arkansas Property Code. See id. at pp. 100–03. The
default was still not cured.
The Court therefore finds as follows:
(1) Separate Defendants Brown, Manen, Peck, and Thomas were properly served
with the Complaint and summons yet failed to file answers or otherwise defend
in this case. They are all in default pursuant to Rule 55(b)(2), and Regions is
entitled to judgment against them.
(2) HUD timely filed an Answer to this matter and subsequently entered into an
Agreed Order with Regions Bank in which HUD acknowledged it holds two liens
on the subject property recorded with the Boone County Circuit Clerk and
Recorder as Document Nos. 2013006084 and 2016001748. (Docs. 12 & 22).
As both liens were filed subsequent to Regions’s Security Interest, HUD agrees
Regions has the priority lien. Accordingly, Regions is entitled to judgment on
its confirmation of priority over Peck, Brown, Manen, and Thomas, because its
Security Instrument was recorded first in time.
(3) The Creekmores failed to make the June 1, 2019, payment and all subsequent
payments. As of July 1, 2023, a total of $142,189.88, plus interest and fees, is
due. The Creekmores are in default on the Loan Agreement, so Regions is
entitled to judgment in personam against the Creekmores and in rem against
the subject property. See id. at p. 105 (calculating principal balance and
accrued interest).
In view of the above findings, IT IS ORDERED that the Motion for Summary
Judgment (Doc.52) is GRANTED.
Plaintiff Regions is directed to file a brief substantiating its request for attorney’s
fees and costs, including an itemized bill showing the rates, services performed, and
hours reasonably expended by counsel on this matter. This brief should be filed of record
by August 30, 2023. At the same time, Plaintiff is directed to email to chambers a
proposed judgment, order of sale, and related documents regarding the sale of the
subject property.
IT IS SO ORDERED on this 16" day of August, 2023.
UNITED STATES DISTRICT JUDGE