Opinion

Regions Bank v. Creekmore

Court
District Court, W.D. Arkansas
Filed
Aug 16, 2023
Cited by
0 cases
Authority
More cited than 17.2%

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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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