Statewide Funding Corp. v. Reed

REIF, Judge.

This appeal arises from a foreclosure proceeding. Defendant debtor Winifred Reed challenges both the judgment of foreclosure and the order for deficiency. She basically contends that the trial court erred (1) by denying her petition to vacate the foreclosure judgment, and (2) by entering a deficiency upon an untimely motion and without allowing her to prove the property’s fair market value. Upon review, we hold that the trial court did not abuse its discretion in denying the petition to vacate on the grounds advanced by Debtor. We also reject the assignments of error concerning the order for deficiency and affirm.

In her petition to vacate, Reed argued that the foreclosure judgment and sheriffs sale should be set aside (1) because of payments she had made on the arrearage just prior to default judgment being entered, and (2) due to lack of notice concerning the judgment and confirmation of the sheriffs sale. It is undisputed, however, that Reed had not paid the total arrearage by the time creditor Statewide Funding Corporation sought the default judgment and she had not entered an appearance or filed an answer. In view of these facts, the trial court did not err in denying vacation of the foreclosure judgment, because the payments did not af-*580feet Creditor’s right to foreclose1 and her default did not entitle her to notice of the foreclosure judgment. As concerns the sufficiency of notice concerning confirmation of the sheriffs sale, the record reflects that the notice was sent to Reed’s address that appeared in the record.2 Her assertion that Creditor knew she was absent from that address is not supported by the record. Neither the payments she made nor the notice insufficiencies about which she complains, warranted vacation of the foreclosure judgment or the sheriffs sale.

The controversy over the timeliness of Creditor’s motion for deficiency stems from the fact that Reed filed bankruptcy three days after the sheriffs sale of the property. The question is the effect of the bankruptcy stay on the ninety-day period following the sheriffs sale in which Creditor was required to file a motion for deficiency under 12 O.S.1991 § 686.

Debtor’s brief in chief initially argued that the stay did not prevent the filing of the motion for deficiency, but only the prosecution of the motion. Debtor asserted that Creditor’s failure to file the motion for deficiency during the 90-day statutory period barred recovery of any deficiency.3 In response, Creditor’s answer brief argued that it could not file its motion until the stay was lifted, and that 11 U.S.C. § 108(c) (1994) gave Creditor the remaining 87 days of the 90-day period after the lifting of the stay in which to file the motion for deficiency. In reply, Debtor challenged Creditor’s interpretation of section 108(c) and argued that the 90-day period continued to run while the stay was in effect. Debtor maintains that the 90-day limitation period ran out while the stay was in effect, leaving Creditor the 30-day period under section 108(c)(2) following the lifting of the stay in which to file its motion. There is no dispute that the stay was lifted on September 14, 1994, and the motion for deficiency was filed eighty-four days later on December 7,1994.

Section 108(c) provides, in pertinent part: [I]f applicable nonbankruptcy law ... fixes a period for commencing or continuing a civil action in a court other than a bankruptcy court on a claim against the debtor ... and such period has not expired before the date of the filing of the petition, then such period does not expire until the later of—
(1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; or
(2) 30 days after notice of the termination or expiration of the stay under section 362 ... with respect to such claim.

The greater weight of the case law interpreting this section supports Debtor’s general position that the bankruptcy stay does not in and of itself toll a limitation period. See Thurman v. Tafoya, 895 P.2d 1050 (Colo. 1995). However, a bankruptcy stay can trigger suspension of a limitation period under applicable state law, including state common law. Id. at 1055. Turner and Boisseau, Chartered v. Lowrance, 18 Kan.App.2d 332, 852 P.2d 517, 519-20 (1993); Peterson v. Texas Commerce Bank-Austin, National Ass’n, 844 S.W.2d 291 (Tex.Ct.App.1992).

As the Peterson case points out, “section 108(c) does not itself restrict the source of the suspension to specialized statutes.” Id. at 294. Indeed, section 108(c) expressly recognizes that “any suspension” will be counted in determining whether the time remaining on a statutory period or the 30-day period of section 108(c)(2) is the “later” period. Peterson held that a suspension occurred in that case under the Texas common law rule that the time during which a person is prevented from exercising a legal remedy by the pendency of legal proceed*581ings should not be counted against him in determining whether limitations have barred his right.

Oklahoma has a similar common law rule set forth in Lee v. Epperson, 168 Okla. 220, 32 P.2d 309 (1934). The first syllabus of Lee states:

Where the character of legal proceedings is such that the law restrains one of the parties from exercising a legal remedy against another, the running of the statute of limitations applicable to the remedy is postponed, or if it has commenced to run, is suspended, during the time the restraint incident to the proceedings continues.

The cases of McGee v. Kirby, 189 Okla. 488, 118 P.2d 199, 200 (1941), and Johnson v. Johnson, 182 Okla. 293, 77 P.2d 745, 747 (1938) (citations omitted), similarly hold that “ ‘[wjhenever a person is prevented from exercising his legal remedy by some paramount authority, the time during which he is thus prevented is not to be counted against him in determining whether the statute of limitations has barred his right.’ ”

It is reasonably clear that the 90-day period of section 686 is the type of limitations period for the pursuit of remedies upon which Oklahoma’s common law suspension rule was meant to operate. “The judicial determination of the amount of deficiency [under section 686] is a post-judgment prerequisite to the judgment creditor’s pursuit of further process in satisfaction of the judgment [of foreclosure].” Mehojah v. Moore, 744 P.2d 222, 225 (Okla.Ct.App.1987) (approved for publication by the Oklahoma Supreme Court) (citations omitted). It is “a supplemental order ... which allows the judgment creditor to obtain a writ of general execution to satisfy the deficiency amount.” Id. “The restrictions [of section 686] are entirely upon the right of execution.” Id. at 226. In the instant ease, Creditor was restrained from pursuing its remedies of a deficiency determination and general execution to collect the balance of a previously entered judgment. This restraint was by the paramount authority of the bankruptcy court. Applying Oklahoma’s common law suspension rule to section 686, as 108(c)(1) expressly allows, leads us to the same conclusion that was reached by the court in Peterson:

After the automatic stay has been lifted, a claimant should benefit from the [common law] tolling [i.e. suspension] of the statute of limitations for the period the stay was imposed and be permitted to bring suit during the remaining period granted by the statute of limitations.

Id. at 295 (emphasis added) (footnote omitted).

Lastly, Debtor contends.that the trial court erred by not allowing her to prove the property’s fair market value and determining the deficiency on summary judgment. However, review of Debtor’s objection to Creditor’s motion for summary judgment and motion for deficiency fails to disclose that she offered any evidentiary material in support of a proposed fair market value, or to controvert the appraised value used at the sheriffs sale. Additionally, the journal entry granting the deficiency reeites that Debtor was represented by counsel at the hearing on Creditor’s pending motions and that the court “heard the evidence and arguments of and propositions of counsel.” It is not clear what “evidence” was heard, but it was incumbent upon counsel for Debtor to at least make an offer of proof at this time concerning her valuation of the property in order to preserve this issue for review. Under the Oklahoma Evidence Code, “[e]rror may not be predicated upon a ruling that ... excludes evidence unless ... the substance of the [excluded] evidence was made known by offer.” 12 O.S.1991 § 2104(A)(2).

The foreclosure judgment and the order for deficiency are AFFIRMED.

TAYLOR, P.J., concurs. RAPP, C.J., dissents.

. The bankruptcy court adjudicated Reed’s rights concerning the payments she made on the ar-rearage which resulted in a credit toward judgment. This credit was considered in determining of the deficiency.

. By this point in the proceedings, Reed had entered an appearance.

.This position was apparently abandoned in favor of the position in her reply brief concerning Creditor's alleged untimely filing under 11 U.S.C. § 108(c)(2) (1994). In any event, this position is contrary to the express language of 11 U.S.C. § 362(a)(1) (1994) and Citizens National Bank of Evans City v. Gold, 439 Pa.Super. 254, 653 A.2d 1245 (1995).