¶ 8 The new Court out of Civil Appeals correctly seen that $85, figure into the worth of the home was at the latest higher avoid of your guess made by Mr. Robey, who is in the real estate business. Mr. Robey and testified the home was resold to have $71,, hence matter the brand new demo court was absolve to take on much more an indicator regarding market value. Appropriately, you to definitely view was backed by the evidence presented, and will not by any means oppose the fresh results of fact by the demo legal.
¶ 9 Brand new Robeys including insist the demonstration judge erred in the declining to prize her or him an attorney’s fee. It believe because results of-fact are “a good attorneys commission to be place by Courtroom on right application” that the legal must honor this new attorney’s payment. Brand new demonstration court seem to reconsidered one prize because record admission rejected the latest Robeys a keen attorney’s commission. The fresh Court of Civil Appeals confirmed.
Earliest National Lender, 1970 Okay 162, 475 P
¶ 10 The brand new Robeys allege they are permitted a keen attorney’s percentage pursuant so you’re able to 42 O.S.2001, § 176, that offers: “From inside the a task brought to demand any lien the latest team to possess whom judgment is actually rendered will likely be eligible to get well a good attorney’s fee, is repaired from the judge, hence will likely be taxed while the will cost you in the action.” This new Robeys dispute their action up against Long Seashore is for starvation of its statutory best just like the lienholders so you’re able to get the home, that produces the action you to definitely enforce a good lien.
¶ 11 Name 42 O.S.2001, § 19 brings this who has an excellent lien that is second-rate to another for a passing fancy possessions features a right to receive the house or property in the same manner as its owner you are going to, on advanced lien. This new Robeys encountered the legal to receive the home regarding Long Seashore. Brand new Robeys was basically provided injuries of the demonstration court since the Much time Beach got observe it stated an effective lien regarding assets. 12 O.S.2001, § 764(A)(1). Whenever Long Seashore didn’t bring find of one’s foreclosure and you will income, they averted brand new Robeys regarding redeeming the home. Men and women liberties is legal occurring outside of the lien the latest Robeys got against the assets.
The latest older lienholder intervened and you can effectively based the newest priority of their lien
¶ a dozen Much time Beach compares the main points in this situation to help you Boundary Provided. Sav. and Mortgage Ass’n vmercial Lender, 1990 Okay CIV App 105, 806 P.2d 1140. If so, two financial institutions stored notes from an identical debtor. The newest $31, notice kept by the Commercial Bank was safeguarded because of the other commercial papers, that has been and into the default. The banks independently sued the new debtor, and you will just after delivering view, Commercial Financial marketed the fresh guarantee in the sheriff’s sales, with find to help you Boundary. Boundary objected, but did not desire throughout the verification purchase. Boundary then submitted other step https://paydayloanssolution.org/payday-loans-ri/, claiming so it held a properly-mastered safety interest in the newest collateralized industrial papers by advantage away from an article-judgment garnishment continuing, and you will sought real and punitive injuries to have losings incurred courtesy Industrial Bank’s officially-unreasonably serves. The newest demonstration court governed and only Industrial Lender, but refuted Commercial’s application to have a keen attorney’s commission less than § 176. New Legal from Appeals affirmed, acknowledging the suit was not you to definitely impose good lien, you to definitely Boundary Financial indeed didn’t come with lien to the collateralized commercial report. On the other hand, the fresh new Robeys got good lien to the real-estate foreclosed of the Much time Coastline.
¶ thirteen Brand new Frontier situation alludes to it Court’s choice overall Digital Borrowing Corp. v. 2d 137, once the power for the holding. Typically Electronic, the brand new junior lienholder charged the principal debtors. The new elder lienholder upcoming tried to collect an attorney’s commission away from the fresh junior lienholder. The latest demonstration courtroom refused the cost, which Judge verified, watching that the lienholders had not affirmatively asserted their says facing one another, but alternatively just up against the borrower. General Electric, 1970 Okay 162, ¶ 8, 475 P.2d within 138. The brand new Robeys has actually asserted its claim against A lot of time Seashore, hence differentiates this example away from General Electronic.
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