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.

2. Duty to Give Notice; Deceased Defendants.

(a) If the plaintiff in a mortgage foreclosure action learns that the defendant is deceased, before or after filing the Petition or through subsequent pleading or motion, the plaintiff has a responsibility to conduct a good faith and due diligent search for the titled owner’s heirs at law and inform the Court of the results of its search. Notice shall be given to all heirs at law located by the Petitioner.

(b) A guardian ad litem shall also be appointed to represent the unknown heirs at law. The guardian ad litem shall conduct an additional search to locate heirs at law of the titled owner.

(c) The costs associated with the appointment of a guardian ad litem and the guardian ad litem’s initial search for heirs at law shall be borne by the Petitioner.

(d) If the guardian ad litem locates heirs at law, the guardian ad litem shall file a report of the results of the search and the Petitioner shall serve notice of the Petition and any pending hearings upon all identified heirs at law.

3. Non-Appearance Hearing.

(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 hearing.”

(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 granted.

(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 granted.

4. 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 Article 20.

5. 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 Sale-Deficiency.”

(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.”

6. Redemption.

(a) If a decree of foreclosure or other order determines the owner’s period of redemption to be less than twelve (12) months, or that the same is waived within the meaning of K.S.A. 60-2414(a), 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 of notice to all parties or persons claiming redemption rights 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 of redemption rights 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 assignee, 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.

(d) Unless waived pursuant to K.S.A. 60-2414(a), redemption rights transferred or assigned pursuant to K.S.A. 60-2414(h), must comply with K.S.A. 58-2342 (2005), and its disclosure form, if the defendant owner resides in the foreclosure property at the time of transfer. Any assignment, transfer or other paper filed that purports to claim redemption rights must be verified and reflect (1) the status of the defendant owner’s residence at the time of any assignment, (2) the actual consideration between the defendant owner and the assignee, and thereafter such assignment of redemption rights must be (3) be served on all parties and the Certificate of Purchase holder (if not a party). Statutory redemption rights may not be transferred or assigned until after the sheriff’s sale. Capitol Building & Loan Ass’n of Topeka v. Ross, 134 Kan. 441, 7 P.2d 88 (1932) (recognizing redemption rights cannot be assigned until after the sale and confirmation of the same); Anspacher & Assocs., Inc. v. Leslie, 5 Kan. App. 2d 348, 350, 616 P.2d 297 (1980) (redemption runs from date of sale). Accordingly, no party or person attending an ordered sale, pursuant to K.S.A. 60-2410, shall represent that such party or person holds redemption rights and, in particular, to discourage others from bidding at the sale. See Knutson Mortgage Corp. v. Coleman, 24 Kan. App. 2d 650, 951 P.2d 548 (1997) (inherent power of court to address bad faith conduct from foreclosure sale). Before confirmation of any sale, pursuant to K.S.A. 60-2415, the sheriff shall inform the Court if any party or person may have impacted the sale proceedings from otherwise being regular and in conformity with the law.

(e) Before any Order of Disbursement of redemption funds paid into the Clerk of the District Court is approved, the party or person seeking disbursement shall shall file a verified motion that any such redemption has complied with this Rule. Such motion may be heard on the Court’s non-appearance docket pursuant to ¶ 3(c) and (d) of this Rule.

7. Bankruptcy.

(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).

8. Jurisdiction.

(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 rem judgment against the party over whom the Court does not have in personam jurisdiction.

9. 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.