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FIDELITY BANK v. KING

No. 92,410

281 Kan. 1278 (2006)

FIDELITY BANK, f/k/a FIDELITY SAVINGS ASSOCIATION OF KANSAS, FSB, Plaintiff, v. JAMES M. KING, et al., Defendants and U.S. BANK, N.A., Defendant/Appellant. RIVER CITY ENTERPRISES, L.L.C., Appellee.

Supreme Court of Kansas

Opinion filed June 16, 2006.

Attorney(s) appearing for the Case

Bradley S. Anderson, of South & Associates, P.C., of Kansas City, Missouri, argued the cause and was on the briefs for appellant.

Karl R. Swartz, of Morris, Laing, Evans, Brock & Kennedy, Chartered, of Wichita, argued the cause and was on the briefs for appellee.

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 sheriff's 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, f/k/a Fidelity

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