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Money Store Investment Corp. v. Summers2/9/2005
mply with their written settlement agreement with Phillips in her legal action. Specifically, they failed to pay Phillips her sign-up bonus pay, accrued wages and vacation pay and to transfer 40% of the outstanding capital stock of Mangy Moose to her. Therefore, on August 10, 2001, Phillips filed a motion to enforce the settlement agreement that the parties had entered into on September 15, 1999.
Subsequently, on September 17, 2001, Money Store initiated a complaint for foreclosure on the real estate and appointment of receiver for Mangy Moose.
In an order dated October 5, 2001, the court found Summers and Mangy Moose had committed numerous material breaches of their written settlement agreement with Phillips and ordered specific performance of its terms. On February 5, 2002, the trial court found that Summers and Mangy Moose had "failed and refused" to comply with its order of October 5, 2001 and granted Phillips a monetary judgment in the amount of $205,700. (App. 128).
On February 14, 2002, National City assigned to Phillips "all of its right and interest" in eleven mortgages it held on real estate owned by Summers. (App. 116). Thereafter, on March 13, 2002, Phillips filed a motion to intervene in Money Store's foreclosure action, along with her own complaint to foreclose. The trial court granted her motion to intervene.
Subsequently, both Phillips and Money Store amended their complaints for foreclosure . Although named as a party in both Phillips' and Money Stores' complaints, Summers neither appeared nor answered their complaints.
On June 6, 2003, Phillips filed a motion for summary judgment and designated certain evidentiary materials, including affidavits from her attorney and an officer of National City. Phillips also designated and cited the dragnet clauses in some of National City's mortgages; evidence that before September of 2000, Summers and Mangy Moose had incurred additional debt to National City in the form of overdrafts and charges which remained unpaid; her monetary judgment against Summers and Mangy Moose; her assignment by National City of its interests with respect to its mortgages on Summers' property; and evidence of her attorney's fees. Phillips argued that she was "the first position lien claimant," with her claims being "superior and prior to the claims, interests, and liens of" Money Store. (App. 124).
On July 30, 2003, Money Store filed its motion for summary judgment. Money Store argued that Summers' mortgages to National City "were paid in full with the proceeds" of the two notes given to Summers and Mangy Moose on September 15, 2000, and that "any interest that Phillips has in the mortgaged property is subsequent to that of the interest held by Money Store." (App. 221, 222). The designated evidence in support of its "payment in full" argument was an affidavit by Jeffrey Harlan, an attorney who had represented the title company acting for Money Store, stating that "payoff funds were deposited" on September 15, 2000 with National City "as evidenced by the receipts," and that a September 14, 2000 transmission from National City had indicated that mortgages would be released "upon proper payoff of the three (3) loans as quoted." (App. 267).
On December 4, 2003, the trial court entered its judgment and decree foreclosing the mortgages of both Phillips (pursuant to the assignment by National City) and Money Store to Summers' real estate. Further, the order granted to Phillips not only an in rem judgment against Summers' real estate "from the overdrafts and [National City] Mortgage securing same," but also an in rem judgment against Summers' real estate "for her judgment lien" (arising from the written
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