Opinion
No. 74100. Released for Publication by Order of the Court of Appeals of Oklahoma, Division No. 3.
April 23, 1991.
Appeal from the District Court of Oklahoma County, Bana Blasdel, J.
Harry Medford Frampton, Jr., pro se.
MEMORANDUM OPINION
Appellee did not file an answer brief. Where there is a failure to file an answer brief, if the brief in chief is reasonably supportive of Appellant's allegations of error, this Court will ordinarily reverse the appealed judgment with appropriate directions; but, if the brief in chief is not reasonably supportive of the allegations of error, the decision of trial court will be affirmed. Cooper v. Cooper, 616 P.2d 1154 (Okla. 1980). We find Appellant's brief in chief does not support the allegations of error; and, the judgment is affirmed.
On June 30, 1989, Fleet Real Estate Funding Corporation (Appellee) obtained a judgment against Harry Medford Frampton, Jr., on a promissory note and foreclosing the real estate mortgage which secured the note. Appellant did not appeal within 30 days and the judgment became final. The sheriff's sale of the real property, was confirmed over Appellant's objections on September 6, 1989. It is from the order confirming sheriff's sale that Appellant appeals.
First, Appellant contends that Appellee did not enter into good faith negotiations prior to the filing of the action on the note and to foreclose the mortgage. This contention is unsupported by legal authority. Further, the judgment was obtained on June 30, 1989, and no appeal was filed. By failing to file a timely appeal, Appellant waived any alleged error with reference to the entry of the judgment.
Appellant contends Appellee refused to accept tender of payment in full for the debt prior to the sheriff's sale, and therefore, Appellant is not liable for interest, costs and attorney fees pursuant to 12A O.S. 1981 § 3-604[ 12A-3-604].
The document offered by Appellant to Appellee as tender of payment in full is, in material part, as follows: IN GOD WE TRUST 777 ON DEMAND TENDER OF PAYMENT 16 Aug 89 Fleet Real Estate Funding Corp SEVENTY-SIX THOUSAND ONE HUNDRED FOUR 76,104.00 /s/ Harry M. Frampton 9701 Willow Wind Dr. Midwest City, OK 73130 ON ACCOUNT # 3743200
NEGOTIABLE INSTRUMENT No. Redeemable When Presented To The Signer At His Usual Place of Sojourning or Business. , 19 THE UNDERSIGNED WILL PAY TO THE ORDER OF DOLLARS OF CREDIT [*] As payment in full or Twenty-One Dollars of Silver in Full Payment At-Law Certified By THE F.R.B. OF NEW YORK SIGNATURE SAYS "MONEY DOESN'T HAVE TO BE . . . ISSUED BY A GOVERNMENT . . . OR BE IN ADDRESS ANY SPECIAL FORM." QUOTED FROM "I BET YOU THOUGHT" TENDER IN PAYMENT IN FULL CITY STATE ZIP MEMO: [7] The above described document is not tender of payment in full. It is, at most, only another promise to pay. This contention is without merit.Finally, Appellant contends he was entitled to a jury trial "pursuant to U.S. Constitution, Art. 7, Art. 9, Art. 2 § 19, and Art. 23 § 8." Here, Appellant appeals from an order confirming sheriff's sale, which is an ancillary enforcement proceeding to the judgment foreclosing the mortgage. Foreclosure is equity, not law. Appellant is not entitled a jury trial in equity, or on such a motion.
The standard of review for a motion to confirm sheriff's sale is whether the trial court abused its discretion. Drummond v. James, 150 Okla. 105, 300 P. 658 (1931). We do not find any abuse of discretion.
AFFIRMED.
HUNTER, C.J., and HANSEN, J., concur.