Fidelity Bank v. King

The opinion of the court was delivered by

BEIER, J.:

This foreclosure appeal requires us to determine whether a junior mortgage holder waives its claim to excess sheriffs sale proceeds if it fails to appear and assert its position in a senior mortgage holder’s action. We hold that it does.

Defendants James and Carolyn King assumed the debt on certain real property in Wichita in 1997. Fidelity Bank, 1/k/a Fidelity Savings Associations of Kansas, FSB (Fidelity), was the mortgage holder. In 2000, the Kings executed a second mortgage on the property with U.S. Bank, N.A. (U.S. Bank), for $32,000. The…