Mortgage Foreclosure Cases
1. Submission of Proposed Orders. Unless all affected parties agree to the
order, see Civil Rule No. 8, ¶ 5, no proposed order shall be submitted for
execution by the Court before any required hearing. A proposed order may be
submitted with a motion if (1) notice and hearing are not required, or (2) all
counsel have signed the order, or (3) the motion and order recite that counsel
for all affected parties consent to the motion and order. See Local Civil Civil Rule No. 8, ¶ 5.
(a) Motions for default judgment, for confirmation of sale, and to shorten,
extend or extinguish the redemption period must be set for a “non-appearance
(b) No party is required to appear at a non-appearance hearing,
however any party may appear and object to the motion, or may file written
objections prior to the hearing with the Clerk of the Court and send copies to
the Judge and other parties. If no objection is made or an objection is found
without sufficient legal support, the Court may grant the relief to which movant
is entitled. If an objection is made to the motion, the Court may set the motion
for another hearing to consider the motion and objection.
(c) A non-appearance
hearing requires a written motion served on all parties including those in
default, together with a “notice of non-appearance hearing” denominated as such,
by ordinary mail to recipient’s last known address. The notice shall include the
date, time and place of the hearing and the following language:
This is a non-appearance hearing. No party is required to appear, but any party may appear
and object to the motion, or, prior to the scheduled hearing may, file written
objection with the Clerk of the Court and mail a copy to the Judge and all other
parties. If any party appears or files a written objection, the Court may set a
further hearing to consider the motion and objection. If no party appears or
objects, or any objection is found to be without merit, the motion may be
(d) Every journal entry of a non-appearance hearing which grants the
motion shall include as its initial paragraph the following language:
On the ____ day of ______, 20___ _______________’s
Motion for _________________ came on
for a non-appearance hearing. There were no appearances or written objections
filed. The requirements of Local Rule 34 were complied with. The motion is
3. Judgment of Foreclosure-Attorney Fees and
Expenses of Foreclosure.
(a) Any motion for default judgment on a petition that seeks unliquidated
damages will be granted only upon a showing of compliance with Supreme Court
Rule 118(d); provided, however, that service of such motion and notice of
hearing need not be by certified mail but may be by ordinary mail to the last
known address for parties in default.
(b) A default judgment in excess of the amount of the petition’s demand for judgment
in violation of K.S.A. 2010 Supp. 60-254(c) will be vacated or considered voidable
to the extent of the excess.
(c) When any proposed journal entry includes judgment for attorney fees and/or the
mortgagee’s costs or expenses of the foreclosure proceeding the fees, costs, and
expenses shall be supported by the record. This support may be provided by affidavit,
establishing (1) the mortgagee’s entitlement to and (2) the amount, reasonableness
and basis of, each such item. The decree shall state the total amount of the judgment.
(d) When interest is sought in a motion, or awarded in a judgment, the interest
rate and the amount of interest shall be stated.
(e) Court costs shall be set out separately and in accordance with K.S.A. 60
4. Confirmation of Sheriff’s Sale.
(a) A motion to confirm a Sheriff’s sale shall be accompanied by a copy of the signed
Sheriff’s Return of Sale in the form attached
to this rule, an Itemization of Judgment in the
form attached to this rule, and a proposed order.
(b) A motion to confirm a Sheriff’s sale requires a non-appearance hearing with
14 days notice to all judgment debtors, regardless of whether they are in
default in the litigation, at their last known address(es) by ordinary mail. Any
such motion shall be supported by appraisals, affidavits or other evidence
demonstrating the value of the property to assist the court in determining that
fair value has been obtained.
(c) If the Sheriff’s sale results in a deficiency that is waived by the Motion
and Order, they shall be titled “Motion to Confirm Sheriff’s Sale-Deficiency
Waived” and “Order Confirming Sheriff’s Sale-Deficiency Waived.” If a deficiency
results but is not waived the Motion and Order shall be titled: “Motion to
Confirm Sheriff’s Sale-Deficiency” and “Order Confirming Sheriff’s
(d) A Motion or Order to Confirm a Sheriff’s Sale in a case in which the
judgment is In Rem shall be titled “Motion for Order Confirming Sheriff’s Sale – In Rem
Judgment” or “Order Confirming Sheriff’s Sale – In Rem Judgment.”
(a) If a decree of foreclosure or other order determines the owner’s period of redemption
to be less than twelve (12) months, it shall state the reason which shall be supported
by the record.
(b) Any motion to shorten, extend or extinguish the period of redemption of the
defendant owner pursuant to K.S.A. 60-2414(a) or 60-2414(m) shall be set for a
“nonappearance” hearing with not less than 21 days notice to all parties and
proof of service. The facts on which the motion relies must be supported by the
record which in the Court’s discretion may be provided by Affidavit.
(c) The defendant owner or assignee may redeem for the amount paid by the then current
holder of the Certificate of Purchase including expenses incurred in accordance
with K.S.A. 60-2414(a) and K.S.A. 60-2414(d) which expenses are evidenced by vouchers
or receipts filed in the office of the Clerk of the District Court in accordance
with K.S.A. 60-2414(d) and are entered on the appearance docket of the case. The
holder of the certificate or a creditor who has redeemed prior to a defendant owner
or assignor, shall be entitled to interest in accordance with K.S.A. 16-204(e)(1),
as amended, on the net amount paid to redeem the property.
(a) Under federal bankruptcy law, a petition filed under of 11 U.S.C. §§ 301, 302
or 303 operates as a stay of actions against property of the bankruptcy estate,
property of the debtor, or against the debtor. 11 U.S.C. § 362(a). Thus, when a
party to a foreclosure action in this Court files for bankruptcy protection, the
party shall, as soon as possible, but no later than ten (10) days thereafter, file
with this Court and all parties to the litigation in this Court a copy of the party’s
Notice of Bankruptcy Filing in the relevant case in this Court. The party prosecuting
the foreclosure action shall file the Notice of Bankruptcy Filing with this Court,
within a reasonable time after receipt of the notice from the bankruptcy court,
if the debtor fails to do.
(b)(1) If a party prosecuting an action for foreclosure obtains relief from the
automatic stay, that party shall notify this Court by filing a Notice of Right to
Proceed and attach thereto a copy of the bankruptcy court order granting relief
from the automatic stay; or
(2) In the alternative, the party prosecuting the foreclosure action in this Court
shall file a Notice of Right to Proceed with an Affidavit attached explaining the
basis of its right to proceed as to debtor/defendant(s) and/or any other defendant(s).
(a) Any decree of foreclosure shall state for each named party defendant, whether
they have been served with summons and process, if so, when and how, and whether
each has answered or otherwise pled.
(b) If the Court does not have personal jurisdiction over a party defendant, or
if a personal judgment against the mortgagor is not otherwise available, and if
the Court has jurisdiction over the mortgage contract, the note, and/or the property,
the Court may enter an
in personam judgment will be entered against the party over whom the Court
does not have in personam jurisdiction.
8. Writ of Assistance.
Upon the filing of an Application for Writ of Assistance, the court may, in its
discretion, grant the Writ upon a showing that the applicant is entitled to possession.
That required showing may be made by (1) showing that the applicant is the
current holder of the Certificate of Purchase and any applicable Period of Redemption
has run, or in the alternative (2) the presentation of a recorded Sheriff’s Deed
to the applicant as grantee. The Writ of Assistance
shall be in the form attached to this rule.