Although the Cooks have failed to preserve the issue, it is important to note that a deficiency proceeding is equitable in nature and the district court's determination of the amount of a deficiency will not be set aside on appeal unless shown to be against the clear weight of the evidence. Reliable Life Ins. Co. of St. Louis v. Cook, 1979 OK 88, ยถ 11, 601 P.2d 455. ยถ18 Like the Majority, I too agree with this Court's reasoning in Little Bear Resources, LLC v. Nemaha Services, Inc., 2011 OK CIV APP 18, 249 P.3d 957 (holding that judgment debtor in a general execution proceeding is entitled to set off the market value of real property sold at sheriff's sale if judgment creditor is the purchaser).
Although the Cooks have failed to preserve the issue, it is important to note that a deficiency proceeding is equitable in nature and the district court's determination of the amount of a deficiency will not be set aside on appeal unless shown to be against the clear weight of the evidence. Reliable Life Ins. Co. of St. Louis v. Cook , 1979 OK 88, ยถ 11, 601 P.2d 455. ยถ18 Like the Majority, I too agree with this Court's reasoning in Little Bear Resources, LLC v. Nemaha Services, Inc., 2011 OK CIV APP 18, 249 P.3d 957 (holding that judgment debtor in a general execution proceeding is entitled to set off the market value of real property sold at sheriff's sale if judgment creditor is the purchaser).
See Funk v. Payne, 183 Okla. 332, 82 P.2d 976 (1938), wherein we explained that in order to appeal errors in a judgment of foreclosure it was necessary to appeal from that judgment, and First National Bank v. Colonial Trust Co., 66 Okla. 106, 167 P. 985, 987, 988 (1917), wherein we observed that the order of foreclosure was final as it was not appealed. In Reliable Life Ins. Co. of St. Louis v. Cook, 601 P.2d 455, 457 (Okla. 1979), we observed that the appellant did not appeal the foreclosure judgment prior to the motion for the deficiency. In Burton v. Mee, 152 Okla. 220, 4 P.2d 33, 36 (1931), we said that a judgment of foreclosure could not be attacked in the context of a motion to confirm a sale but that the parties' remaining remedy in attacking the judgment at that point in the proceedings was by vacating the judgment.
An action of equitable cognizance will not be set aside unless the finding is against the clear weight of the evidence, and there is a presumption in favor of the trial court's findings. Reliable Life Insurance Co. of St. Louis v. Cook, 601 P.2d 455 (Okla. 1979); Ridgeway v. Logan, 205 Okla. 603, 239 P.2d 778 (1952). Additionally, the Commissioners contend that Hillcrest's claim exceeds the debt limitation provisions found in the Oklahoma Constitution, Article 10, Section 26, and 62 O.S. 1981 ยง 310.1[ 62-310.
The filing party may or may not file the motion for deficiency judgment with the motion for confirmation and, regardless of whether he files them together, the motion for deficiency judgment must be filed within ninety days of the sale. Reliable Life Ins. Co. of St. Louis v. Cook. 1979 OK 88, 114, 601 P.2d 455, 456. The common law recognizes two different time bars that are conceptually distinct: [1] an "ordinary" or "true" statute of limitations that regulates the time to bring an action and [2] a time limit that establishes a condition upon the right or constitutes a substantive element of the claim.
Failure to file the motion for deficiency judgment simultaneously with the motion to confirm sheriff's sale, or within the ninety-day period of the sale, extinguishes the debt. Reliable Life Ins. Co. v. Cook, 601 P.2d 455 (Okla. 1979). 12 O.S. 1991 ยง 686[ 12-686], states in part:
(Emphasis added.) Dispositive of this appeal is Reliable Life Insurance Co. of St. Louis v. Cook, 601 P.2d 455, 456 (Okla. 1979), where the court made this observation regarding section 686: The filing party may or may not file the motion for deficiency judgment with the motion for conformation and, regardless of whether he files them together, the motion for deficiency judgment must be filed within ninety days of the sale.
Though the subsequent ancillary proceeding may create new disputes, it does not create new rights. Reliable Life Ins. Co. of St. Louis v. Cook, 601 P.2d 455 (Okla. (1979). I have no trouble whatever with the legal conclusion that once placed in the judgment docket as required by statute, the judgment which determines the amount due from mortgagor on the note and enters judgment in favor of mortgagee for that amount along with foreclosure of the mortgage, becomes a lien on another piece of real property owned by mortgagor and situated in the county in which the judgment was filed.