United States of America v. Hyde et al

Filing 83

OPINION AND ORDER by Magistrate Judge Steven P. Shreder DENYING 58 Motion for Summary Judgment by United States of America. (ndd, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA,
Plaintiff,
v.
JO ETTA HYDE; MICHAEL DEE
HYDE; STATE OF OKLAHOMA,
ex rel. Oklahoma Tax Commission;
BOARD OF COUNTY
COMMISSIONERS OF SEQUOYAH
COUNTY, OKLAHOMA; COUNTY
TREASURER OF SEQUOYAH
COUNTY, OKLAHOMA; and
NATIONAL BANK OF SALLISAW,
Defendants.

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Case No. CIV-14-130-SPS

OPINION AND ORDER DENYING PLAINTIFF
UNITED STATES OF AMERICA’S MOTION FOR SUMMARY
JUDGMENT WITH BRIEF IN SUPPORT
The United States of America brought this foreclosure action on behalf of the
Farm Service Agency (FSA) under 28 U.S.C. § 1345 against Defendants Jo Etta Hyde
and Michael Dee Hyde, husband and wife, as well as the State of Oklahoma ex. rel
Oklahoma Tax Commissioner, Sequoyah County Board of County Commissioners,
Sequoyah County Treasurer, and the National Bank of Sallisaw, who also claim some
interest in the mortgaged property at issue in this action. The United States alleged that
the Hydes defaulted on mortgage payments for certain property listed in the Amended
Complaint [Docket No. 27], and now seeks summary judgment against Defendants Jo

Etta Hyde and Michael Dee Hyde,1 husband and wife, pursuant to Fed. R. Civ. P. 56,
asserting that there is no genuine issue of material fact to dispute their liability. For the
reasons set forth below, the Court finds that the Defendant United States of America’s
Motion for Summary Judgment with Brief in Support [Docket No. 58] should be
DENIED.
Summary judgment is appropriate if the record shows that “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A genuine issue of material fact exists when “there is sufficient
evidence favoring the nonmoving party for a jury to return a verdict for that party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The moving party must show
the absence of a genuine issue of material fact, see Celotex Corp. v. Catrett, 477 U.S .
317, 325 (1986), with the evidence taken in the light most favorable to the non-moving
party, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). However, “a party
asserting that a fact cannot be or is genuinely disputed must support the assertion by . . .
citing to particular parts of materials in the record . . . or . . . showing that the materials
cited do not establish the absence or presence of a genuine dispute[.]” Fed. R. Civ. P.
56(c).

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Although the summary judgment motion was not directed against the remaining Defendants,
the Defendant State of Oklahoma ex rel. Oklahoma Tax Commission nevertheless responded to
the motion to indicate that the State did not object to an entry of judgment in favor of the
Plaintiff United States, so long as the Court recognized that the State of Oklahoma had issued a
tax warrant to the Hydes on September 30, 2010, and that such a lien should be given priority
over all subsequently filed liens or interests. See Docket No. 60 & Ex. 1. Because the Court
denies the summary judgment motion for the reasons below, the Court declines to address the
issue of priority of liens at this time.
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In the Amended Complaint, the Plaintiff United States identified the three tracts of
land at issue and listed a promissory note, mortgage, and security interests, each executed
by one or both of the Hydes. The United States further alleged that the Hydes had
defaulted on these notes, mortgages, and security interests; that the United States may
foreclose on these interests in the event of default; and that the United States has priority
over all other interested parties. See “Amended Complaint,” Docket No. 27.
The Plaintiff contends that summary judgment is thus appropriate here as to
Defendants Hyde because they have defaulted on payment of the promissory note that
had been secured by a collateral security interest in livestock, farm equipment, and motor
vehicles. In the Motion for Summary Judgment, Plaintiff asserts that the government is
entitled to summary judgment against the Hydes in the amount of $199,497.32, plus
interest of $2,181.67 through August 26, 2014, and accruing at the daily rate of $9.5649
until paid in full. Attached to their motion is an Affidavit by Melissa L. Cook, an FSA
employee who stated she had reviewed the files, that the Hydes were indebted to the
United States and were in default on such debt, and that the Hydes had been offered “all
administrative rights afforded by law or regulation” prior to the acceleration and referral
for foreclosure. See “Affidavit,” Docket No. 58, Ex. 1, p. 1. The Hydes agree that they
are recently delinquent on their FSA loan, but contend that summary judgment is not
appropriate because: (i) an FSA supervisor promised they would have a chance to buy
out their loan but they were not actually given that chance, (ii) they have never received
from the government a statement or accounting of the debt owed, and (iii) they have been
making partial payments in effort to satisfy the debt owed which has reduced the total
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amount owed below what the government has claimed. Attached to the Hydes’ response
is an Affidavit signed by Jo Etta Hyde, stating that she was disputing the amount the FSA
claimed they owed because she had “relied upon the local FSA to help me in the loan
restructuring[,]” “FSA relief was not forthcoming[,]” and she “never received an
accounting from FSA on the amount of the debt. See “Affidavit,” Docket No. 62, Ex. 1.
In its Reply, the Plaintiff provided a timeline of events indicating, as relevant, that:
(i) the FSA mailed a loan servicing packet to the Hydes via certified mail on April 3,
2012; (ii) the Hydes accepted it on April 16, 2012; (iii) FSA mailed a reminder on May
16, 2012; (iv) additional servicing options were sent via certified mail on June 28, 2012,
and accepted by Jo Etta Hyde on June 29, 2012; and (v) an acceleration letter was
accepted by Jo Etta Hyde on April 16, 2013. The Plaintiff then asserted that the Hydes
were thus offered all administrative rights afforded by law and regulation, that the
Defendants Hyde failed to avail themselves of the opportunity to restructure their debt,
and that a payoff amount was provided on February 15, 2013. Furthermore, even though
the total amount of the debt had been reduced by extra payments made by the Hydes, the
extra payments would not cancel the acceleration notice.

The Plaintiff, however,

attached no documentation or evidence to support these statements, including
documentation reflecting the Hydes’ (undisputed) default, and the Hydes contend that
they were not provided the requisite notice. Cf. United States v. Sebo, CIV-10-368RAW, 2011 WL 4443206, at *2 (E.D. Okla. Sept. 22, 2011) (“Plaintiff has shown that
Defendants were sent the notifications required by statute, and Defendants wholly failed
to respond with the required paperwork.”).
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The dispute between the parties, then, is whether the Plaintiff afforded the Hydes
all administrative rights afforded by law and regulation prior to bringing this foreclosure
action. Despite the assertion of facts that would tend to support a finding that the Hydes
were provided all such rights, the government has provided no evidence to support these
asserted facts. See United States v. Welch, 2013 WL 1444053, at *5 (D. Colo. Mar. 13,
2013) (“Where the movant bears the ultimate burden of proof at trial, it must submit
evidence to establish every element of its claims.”). Instead, the Court is left with
affidavits from both parties making opposing statements as to a material fact. Viewing
this evidence in the light most favorable to the Hydes, see Bowling v. Rector, 584 F.3d
956, 964 (10th Cir. 2009) (“We consider the evidence in the light most favorable to the
non-moving party[.]”) [citation omitted], the Court finds that such a fact issue precludes
summary judgment. See Fed. R. Civ. P. 56(a) (“The Court shall grant summary judgment
if the movant shows that there is no genuine dispute as to any material facts and the
movant is entitled to judgment as a matter of law.”).
In summary, the United States is not entitled to judgment in its favor with regard
to Defendants Jo Etta Hyde and Michael Dee Hyde as a matter of law. Accordingly, IT
IS ORDERED that the Defendant United States of America’s Motion for Summary
Judgment with Brief in Support [Docket No. 58] is hereby DENIED.
DATED this 16th day of April, 2015.

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