December 9, 2011 COA Minutes — Nos. 1117-1130 (14 decisions; 2 published)

December 9, 2011 COA Minutes —  Nos. 1117-1130 (14 decisions; 2 published)

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PUBLISHED DECISIONS OF COA:

1124. REAL PROPERTY. FORECLOSURE. DEFAULT JUDGMENT.
HOARD (SHERRY E.)
VS.
OCWEN LOAN SERVICING, LLC
OPINION VACATING AND REMANDING
MOORE (PRESIDING JUDGE)
NICKELL (CONCURS) AND THOMPSON (CONCURS)
2010-CA-001823-MR [[link corrected!]]
TO BE PUBLISHED
JEFFERSON

MOORE, JUDGE: Sherry E. Hoard appeals a judgment of foreclosure from Jefferson Circuit Court in favor of Ocwen Loan Servicing, LLC. After careful review, we vacate and remand for further proceedings.

his appeal followed, and among the issues Hoard raises before us, the dispositive issues are: 1) the nature of Ocwen’s April 12, 2010 motion as it relates to Hoard; and 2) whether Ocwen’s motion was properly converted into a motion for summary judgment.
As to the first issue, Ocwen’s motion was not for judgment on the pleadings, per CR 12.03; rather, it was by its own strict terms a motion for default judgment, per CR 55.01. A trial court may properly enter a default judgment in two circumstances: (1) when a defendant does not appear at all; or (2) when a defendant who has appeared in the action fails to defend as the Rules require. CR 55.01. (“When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules, the party entitled to a judgment by default shall apply to the court therefor.”). Here, Hoard did not fail to plead because she filed an answer. Moreover, nothing in the record or from
the trial court indicates that Hoard’s answer was in any way deficient.

Accordingly, the trial court could not have properly entered default judgment against Hoard and, if it had, it would have erred in overruling Hoard’s motion to set it aside.
As to the second issue: unlike CR 12.02 and CR 12.03, nothing in CR 55.01 allows a motion for default judgment to be converted into a motion for summary judgment. Indeed, a motion for default judgment is not even a proper vehicle to test the legal sufficiency of pleadings, Kearns v. Ayer, 746 S.W.2d 94, 95 (Ky. App. 1988), let alone the strength of the evidence supporting those pleadings.

In short, we are left with the conclusion that the trial court could not have relied upon Ocwen’s motion as a basis for entering summary judgment against Hoard, and that it did so instead upon its own motion. In fairness, this Court has recognized that a trial court may grant summary judgment sua sponte, but

this authority is limited to those situations where [(1)] a motion for summary judgment has been made by some party to the action, [(2)] the judge has “all of the pertinent issues before him at the time the case is submitted,” [Green v. Bourbon County Joint Planning Comn., 637 S.W.2d 626, 630 (Ky. 1982)] and [(3)] “where overruling the [movant's] motion for summary judgment necessarily would require a determination that the [non-moving party was] entitled to the relief asked.” [Collins v. Duff, 283 S.W.2d 179, 183 (Ky. 1955) (Emphasis added)].

Storer Communications of Jefferson County, Inc. v. Oldham County Board of
Education, 850 S.W.2d 340, 342 (Ky. App. 1993).

However, like the Storer Court, we find no authority that allows a trial court to circumvent the civil rules and enter summary judgment sua sponte where, as here, the legal issues have not been submitted for determination. Id.

For these reasons, the Jefferson Circuit Court’s judgment in favor of Ocwen and against Hoard is hereby vacated, its order of sale relating to that judgment is similarly vacated, and this matter is remanded for further proceedings not inconsistent with this opinion, including, but not limited to, addressing the issue of Ocwen’s standing.

1130.  APPEALS. TERMINATION OF PARENTAL RIGHTS. FAILURE TO JOIN INDISPENSABLE PARTY, THE CHILD. RESULTS IN DISMISSAL OF APPEAL
W. (A.M.)
VS.
CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY
OPINION AND ORDER DISMISSING
KELLER (PRESIDING JUDGE)
COMBS (CONCURS) AND VANMETER (CONCURS)
2011-CA-001441-MR
TO BE PUBLISHED
PIKE

KELLER, JUDGE: This appeal is from an order terminating the appellant’s parental rights. It is before the Court at this time on the motion of the appellee Cabinet for Health and Family Services to dismiss the appeal for failure to join the child as a party.

Having considered the motion to dismiss and the response, and having been otherwise sufficiently advised, the Court ORDERS that the motion to dismiss be GRANTED and that this appeal be DISMISSED for failure to join a necessary and indispensable party to the appeal. See Nelson County Bd. of Educ. v. Forte, 337 S.W.3d 617 (Ky. 2011); Lassiter v. American Express Travel Related Services Co., Inc., 308 S.W.3d 714 (Ky. 2010).

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TORT REPORT  FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

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