Mehojah v. Moore

BRIGHTMIRE, Presiding Judge,

concurring specially.

I concur fully with the court’s opinion. I do want to add, however, that like most other lawyers I found it necessary to adjust years of thinking the other way, namely, that the judgment was some sort of an interlocutory event in the course of the litigation. Upon reflection it began to appear that the problem was one of semantics caused by the statutory reference to the judicial deficiency calculation as a “judgment.” Clearly there can be but one judgment in an action on a given subject matter, 1 so either the first adjudication is not a final judgment or the so-called deficiency “judgment” is not a judgment at all but a judicial determination of the amount remaining due on the judgment after sale of the mortgaged property.

That the foreclosure judgment is a final one with regard to the amount due on the note is hardly subject to dispute. It is docketed just like every other judgment and it is appealable. It determines all the rights of the parties to the litigation which exist up to that point. 2 Though the subsequent ancillary proceeding may create new disputes, it does not create new rights.

I have no trouble whatever with the legal conclusion that once placed in the judgment docket as required by statute, the judgment which determines the amount due from mortgagor on the note and enters judgment in favor of mortgagee for that amount along with foreclosure of the mortgage, becomes a lien on another piece of *227 real property owned by mortgagor and situated in the county in which the judgment was filed.

This result was reached a century ago by the Supreme Court of Kansas, Lisle v. Cheney, 36 Kan. 678 , 13 P. 816 (1887), the state whence came our own statute — 12 O.S.1981 § 686, first adopted in 1893. 3

So far as I can find, the validity of the so-called deficiency judgment as such has never been challenged. 4 Nor has the more disquieting provision — that the amount received from the sale of the mortgaged property shall be deemed to satisfy the judgment if no deficiency “judgment” is asked for. It seems to me that in this respect § 686 is at war with the one judgment rule mentioned earlier and might well run afoul of the constitutional guarantees of due process and equal protection by requiring a class of creditors — those whose promissory note is secured by a mortgage — to seek a second “judgment” if a sale of the security does not satisfy the first judgment, and failing to do so, arbitrarily declare the unsatisfied judgment satisfied.

. Aishman v. Taylor, 516 P.2d 244 (Okl.1973); Tobin Constr. Co. v. Grandview Bank, 424 P.2d 81 (Okl.1967).

. Reliable Life Ins. Co. of St. Louis v. Cook, 601 P.2d 455 (Okl. (1979).

. St. 1893, § 4290.

. There was a lack of due process notice challenge in Reliable Life Ins. Co. of St. Louis v. Cook, supra, footnote 2.