Keesha Curtis v. U.S. Bank Trust National Association, Not in Its Individual Capacity but Solely as Trustee of Lsrmf Mh Master Participation Trust II; Arkansas Department of Finance and Administration; And Internal Revenue Service

Cite as 2025 Ark. App. 247
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-23-792

Opinion Delivered April 23, 2025

KEESHA CURTIS APPEAL FROM THE BENTON
APPELLANT COUNTY CIRCUIT COURT
[NO. 04CV-21-1882]
V.

U.S. BANK TRUST NATIONAL
ASSOCIATION, NOT IN ITS
INDIVIDUAL CAPACITY BUT SOLELY HONORABLE DOUG SCHRANTZ,
AS TRUSTEE OF LSRMF MH MASTER JUDGE
PARTICIPATION TRUST II;
ARKANSAS DEPARTMENT OF
FINANCE AND ADMINISTRATION;
AND INTERNAL REVENUE SERVICE
APPELLEES AFFIRMED

BRANDON J. HARRISON, Judge

Keesha Curtis (f/k/a Akins) appeals the grant of foreclosure in favor of U.S. Bank

Trust National Association (U.S. Bank) and argues that the circuit court did not have

personal jurisdiction over her and erred in (1) not applying the relevant statute of limitations,

(2) not dismissing the action, and (3) granting the foreclosure claim without sufficient

evidence. We hold that Curtis waived any objection to personal jurisdiction and affirm the

circuit court’s rulings.

First, a brief history of the litigation between the parties and their predecessors.

Keesha Akins and Shane Akins acquired title to 1295 Sunbridge Lane in July 2001, and they

executed a mortgage in the amount of $398,700 for the property in November 2006. In

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June 2014, Keesha (now Curtis) filed a complaint to stop a foreclosure by Fannie Mae and

Seterus, Inc. (collectively “Seterus”). The case was dismissed on 18 February 2016, and

Seterus was authorized to apply $11,533.90 of Curtis’s money related to an insurance claim

to Curtis’s debt.

On 16 August 2016, Curtis filed a second complaint against Seterus and once again

sought to stop foreclosure. Seterus counterclaimed for foreclosure, and the parties reached

a settlement agreement in October 2018. Under the terms of that agreement, Seterus paid

Curtis $30,000, and Curtis agreed not to contest any subsequent action in which it is alleged

that Curtis defaulted under the terms and conditions of the note or security instrument.

Curtis expressly waived any and all rights and defenses she may have to challenge or contest

any subsequent action, including, but not limited to, any claims or defenses contesting her

default or contesting the validity of the foreclosure process or sale. The action was dismissed

on 28 January 2019. On 28 January 2020, Seterus assigned the mortgage to U.S. Bank.

The present action began on 5 August 2021, when U.S. Bank, solely as trustee of

LSRMF MH Master Participation Trust II, filed a foreclosure complaint against Keesha

Akins; Michael Akins; any tenants of 1295 Sunbridge Lane, Rogers, Arkansas (the tenants);

the Arkansas Department of Finance and Administration (DFA); and the Internal Revenue

Service (IRS).1 U.S. Bank alleged that Keesha and Michael Akins had not made scheduled

payments since July 2013 and asked for judgment in personam against them and in rem

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Both the DFA and the IRS answered the complaint and acknowledged its lien on
the property. DFA had no objection to the court determining lien priority and distribution
of proceeds. The IRS conceded that its tax lien or liens are subordinate to U.S. Bank’s lien
and did not object to the foreclosure.

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against the subject property for $373,752.58, together with accrued interest, a reasonable

attorney’s fee, title expenses, late charges, and costs. U.S. Bank also requested foreclosure

of the mortgage, a declaration of its first lien position on the subject property, and the sale

of the property with proceeds of the sale being applied pursuant to the orders of the court.

In response, Keesha Akins, now known as Keesha Curtis, moved to dismiss because

the complaint was filed outside the five-year statute of limitations for foreclosures.2 U.S.

Bank responded that a ruling on Curtis’s motion to dismiss would be premature because it

had not been able to engage in adequate discovery. It also contended that payment or

acknowledgement of the debt (in writing), like the February 2016 dismissal order, can toll

the limitations or form a new limitations period. See Nw. Ark. Recovery, Inc. v. Davis, 89

Ark. App. 62, 200 S.W.3d 481 (2004) (in an action on a debt, a voluntary partial payment

tolls the statute of limitation and forms a new period from which the time must be

computed).

On 29 October 2021, U.S. Bank amended its complaint and requested a judgment

in rem against the property for $373,752.58, together with accrued interest, attorney’s fees,

title expenses, and costs; a declaratory judgment determining and enforcing the parties’ rights

under the settlement agreement; foreclosure of the mortgage; a declaration of its first lien

position on the property; and sale of the property with proceeds of the sale being applied

pursuant to the court’s orders. In turn, Curtis renewed her motion to dismiss and argued

that the complaint had still not alleged facts that would toll the applicable statute of

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Michael Akins joined Curtis’s motion to dismiss on 22 October 2021.
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limitations. After a hearing on 22 February 2022, the circuit court denied Curtis’s motion

to dismiss.

On 14 March 2022, U.S. Bank moved to enforce the October 2018 settlement

agreement between Curtis and Seterus. It asserted that Curtis had taken positions in the

pending foreclosure action that are contrary to and violate her express obligations under the

settlement agreement. Curtis made several arguments in response, including that U.S. Bank

was not a party to the settlement agreement, nor had it been assigned to its benefit, and that

a statute-of-limitations defense cannot be waived.

On 5 May 2022, the circuit court issued a letter opinion in which it held that (1)

U.S. Bank is the proper assignee of Curtis’s mortgage and has standing to bring this claim

to enforce the settlement agreement, and (2) the claim to enforce the settlement

agreement—entered into on 25 October 2018—falls within the five-year statute of

limitations for written contracts. Therefore, the court granted the motion to enforce the

settlement agreement.

The court asked U.S. Bank to prepare an order, and Curtis raised several objections

to the order. For instance, Curtis argued that in the settlement agreement, she had agreed

to not contest any nonjudicial foreclosure action, but she had not agreed to refrain from

raising defenses in any lawsuit. The parties convened for a hearing on 12 July 2022, and

after hearing arguments, the court elected to make no changes to the proposed order other

than deleting one sentence related to U.S. Bank’s payment of taxes and insurance. On July

13, the court entered its written order granting the motion to enforce the settlement

agreement.

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A third hearing was convened on 31 August 2022, at which the parties disagreed on

whether all issues in the case had been resolved. U.S. Bank argued that the other named

defendants had agreed to sign a consent decree, and due to the court’s previous ruling, Curtis

could not contest the foreclosure. Curtis argued that U.S. Bank had not presented sufficient

evidence to foreclose and specifically had not provided the original promissory note. Curtis

also raised the statute-of-limitations argument again. The circuit court agreed that the

original note should be filed and ordered U.S. Bank to do so. The court also noted that it

had already addressed whether the statute-of-limitations argument was applicable. The

court ordered U.S. Bank to prepare a judgment.

A proposed judgment from U.S. Bank was not forthcoming, however, and on 10

February 2023, it moved for a voluntary nonsuit of its claim for judicial foreclosure without

prejudice. The motion specified that it did not “seek to dismiss the other claims including

the Amended Complaint filed on October 29, 2021.” Curtis had no objection to the

dismissal but asserted that the dismissal should be “with prejudice pursuant to Ark. R. Civ.

P. 41(a)(2) as this is the third dismissal of an action related to the claim to foreclose the

mortgage upon this property (04CV-14-787-6; 04CV-16-1153-6).” Curtis also asked the

court to “vacate the mortgage lien the Plaintiff attempts to foreclose (such that some

purported future assignment does not lead to this action being filed again), for her attorneys’

fees and costs in defending this matter, and for all other relief to which she is entitled.”

In reply, U.S. Bank clarified that it was not seeking to dismiss a claim but to merely

change the remedy from judicial to statutory foreclosure. It also explained that the court

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had ruled that it may proceed due to Curtis’s breach of the settlement agreement, and there

had not been any prior dismissal of that claim or issue.

The court entered an order on 27 February 2023 with the following findings:

(a) The settlement agreement was entered into on October 25, 2018,
which would make this contract within the statutory period of time for
enforcement;

(b) U.S. Bank has standing to bring this claim and this claim falls within
the five-year statute of limitations which governs written contracts;

(c) The mortgage assigned to and being enforced by U.S. Bank
constitutes a first priority lien on the property;

(d) U.S. Bank is directed to submit an affidavit itemizing the
indebtedness secured by the property; and

(e) U.S. Bank is instructed to submit the affidavit of debt and the
proposed decree of foreclosure within thirty (30) days of the entry of this
order.

U.S. Bank submitted a proposed decree of foreclosure, and on 10 April 2023, the

circuit court entered an order and decree of foreclosure with the following rulings.

a. U.S. Bank is hereby given judgment in rem against the subject
property in the principal amount of $373,752.58, plus interest from August l,
2013, through March 24, 2023, in the amount of $153,822.10, and thereafter
at the rate of 2.0% per annum until paid, negative escrow of $118,194.99, and
corporate advance balance in the amount of $27,153.26, for a total judgment
amount as of March 24, 2023, in the amount of $673,538.45;

b. Said judgment by virtue of the mortgage in favor of U.S. Bank
constitutes a first priority lien on the subject property;

c. If the foregoing judgment is not satisfied within ten (10) days from
the date hereof, the Commissioner of this Court, hereinafter named, shall sell
the subject property at the Courthouse of Benton County, Arkansas;

d. The liens upon the subject property should be and hereby is ordered
foreclosed by the Court; that pursuant to such foreclosure of lien, the Circuit
Clerk of Benton County, Arkansas is hereby appointed Commissioner of the
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Court for purposes of selling all interests of the parties herein and to the
property at foreclosure sale, the proceeds from which sale shall be applied first
to the cost thereof, then to the satisfaction of the judgment herein granted to
U.S. Bank, with the remainder, if any, payable according to further order of
this Court;

e. Such sale should be a public auction to the highest bidder for cash
or upon credit of three (3) months, provided that if the sale is upon credit, a
good and sufficient surety to secure payment of the purchase price shall be
given to the Commissioner, and the purchase price shall bear interest from
the date of the sale until paid at the rate of 10% per annum; provided,
however, if plaintiff is the highest bidder at the time of such foreclosure,
plaintiff may pay the purchase price by credit given upon the judgment hereby
granted to plaintiff, except as to the cost of the sale; that notice of the sale as
hereby ordered, together with the terms thereof, shall be published within
Benton County, Arkansas, such notice to be published one time prior to sale
not less than ten (10) days prior to sale;

f. Upon confirmation of the sale herein ordered, the Commissioner
hereby appointed shall execute and deliver to the purchaser a Commissioner’s
Deed which shall convey all title and interest of the parties therein and to the
subject property.

Curtis timely appealed the circuit court’s order.

I. Personal Jurisdiction

Service of valid process is necessary to give a court jurisdiction over a defendant.

Patsy Simmons Ltd. P’ship v. Finch, 2010 Ark. 451, 370 S.W.3d 257. Our service rules place

an extremely heavy burden on the plaintiff to demonstrate that compliance with our rules

has been had. Wine v. Chandler, 2020 Ark. App. 412, 607 S.W.3d 522. The guiding

principle of Arkansas Rule of Civil Procedure 4 and the purpose of a summons is to ensure

due process by giving the defendant adequate notice of the suit and an opportunity to

respond before a judgment is entered. Ligon v. Bloodman, 2021 Ark. 124. Actual knowledge

of a proceeding does not validate defective process. Trusclair v. McGowan Working Partners,

2009 Ark. 203, 306 S.W.3d 428. When issues turn on court rules and precedents about
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commencement of service, which are issues of law, our review is de novo. McCoy v.

Robertson, 2018 Ark. App. 279, 550 S.W.3d 33.

Curtis argues that the circuit court did not have personal jurisdiction over her because

she was not personally served with a summons directed to her “as defendant” within 120

days of its filing as required by Ark. R. Civ. P. 4(b) and (i). Applying the “substantial

compliance” standard of Ark. R. Civ. P. 4(k), she asserts that substantial compliance requires

a defect in the process, but here there was no process. She concludes that this

noncompliance mandates dismissal of the case.

In response, U.S. Bank contends that it substantially complied with the service

requirements. It notes that pursuant to Ark. R. Civ. P. 4(k), any error as to the sufficiency

of process or the sufficiency of service of process shall be disregarded “if the court determines

that the serving party substantially complied with the provisions of this rule and that the

defendant received actual notice of the complaint and filed a timely answer.” U.S. Bank

also asserts that Curtis waived any objection to personal jurisdiction by failing to raise the

issue below and by subjecting herself to the jurisdiction of the circuit court.

We agree that Curtis waived any objection to personal jurisdiction by failing to assert

the defense in either her motions to dismiss or her answer to the complaint and by defending

the action on the merits. Any defense of lack of personal jurisdiction, insufficient process,

or insufficient service of process “shall be asserted in the responsive pleading if one is

required” or by motion. Ark. R. Civ. P. 12(b). A defense of lack of jurisdiction over the

person, insufficiency of process, or insufficiency of service of process is waived if it is neither

made by motion nor included in the original responsive pleading. Ark. R. Civ. P. 12(h)(1).

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In addition, this court has long recognized that any action on the part of a defendant that

recognizes the case in court, except to object to jurisdiction, will amount to an appearance,

and the defense of personal jurisdiction may be waived by the appearance of the defendant

without raising the objection. Joslin v. Osborn, 2023 Ark. App. 573, 682 S.W.3d 344.

II. Statute of Limitations

Arkansas Code Annotated section 16-56-111(a) (Repl. 2005) provides that actions

to enforce written obligations, duties, or rights shall be commenced within five years after

the cause of action accrues. A cause of action on an entire debt owed under an installment

sales contract with an optional acceleration clause does not arise until the option is exercised.

United-Bilt Homes, Inc. v. Sampson, 315 Ark. 156, 864 S.W.2d 861 (1993). When the

running of the statute of limitations is raised as a defense, the defendant has the burden of

affirmatively pleading this defense; once it is clear from the face of the complaint that the

action is barred by the applicable limitations period, the burden shifts to the plaintiff to prove

by a preponderance of the evidence that the statute of limitations was in fact tolled. Marshall

v. Turman Constr. Corp., 2012 Ark. App. 686.

Curtis explains that U.S. Bank’s complaint sought to foreclose a mortgage against the

property at 1295 Sunbridge Lane on the basis of her alleged breach of the mortgage and

note, which began on 1 August 2013. A mortgagee’s notice of default and intention to sell

was filed on 10 April 2014, which accelerated the debt by declaring that “the entire

indebtedness has been declared due and payable.” This triggered the running of the statute

of limitations, which ended on 10 April 2019. The present action commenced on 5 August

2021, outside the five-year statute of limitations, and is therefore barred.

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In addition, Curtis contends that U.S. Bank failed to present any evidence that the

statute of limitations might have been tolled. Instead, it claimed that it was entitled to

foreclose under the terms of the settlement agreement and sought a declaration to that effect.

According to Curtis, she did not dispute U.S. Bank’s entitlement to foreclose but noted that

a statute-of-limitations defense cannot be waived in perpetuity and that the settlement

agreement did not provide U.S. Bank the right to foreclose outside of the applicable statute

of limitations. Despite agreeing that a waiver of a limitations defense in perpetuity is void

under Arkansas law, the circuit court “erroneously found that the applicable limitations

period for enforcement of that agreement ran from the date that agreement was entered,

not from the date of the breach giving rise to the foreclosure claim.” Curtis argues that the

circuit court’s ruling “erroneously ignored that Curtis’ statute of limitations defense was not

to the enforcement of the prior settlement agreement, but to US Bank’s foreclosure action.”

She insists that while U.S. Bank’s predecessor could have pursued enforcement of its right

to foreclosure, U.S. Bank was not entitled to enforce that right after the statute of limitations

had run.3

In response, U.S. Bank asserts that the foreclosure here was ordered as a direct result

of Curtis’s breach of the settlement agreement and was not, as Curtis asserts, based on her

breach of the original promissory note and mortgage. A settlement agreement is contractual

in nature and therefore subject to the five-year statute of limitations for contracts. Meadors

3
Under Curtis’s interpretation of the settlement agreement, her agreement to not
contest future foreclosures was valid for only approximately six months after the settlement
agreement was executed; after 10 April 2019, any subsequent foreclosure actions would be
time-barred.

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v. Meadors, 58 Ark. App. 96, 946 S.W.2d 724 (1997); see also Ark. Code Ann. § 16-56-

111(a). Curtis entered into the settlement agreement with Seterus—U.S. Bank’s

predecessor—on 25 October 2018, and U.S. Bank commenced its action to enforce the

settlement agreement on 29 October 2021, within the five-year statute of limitations.4

Therefore, the circuit court correctly held that U.S. Bank’s action to enforce the settlement

agreement was within the applicable statutory period.

As explained above, Curtis agreed in the settlement agreement not to contest any

subsequent action in which it is alleged that she has defaulted under the terms and conditions

of the note or security instrument, and she expressly waived “any and all rights and defenses

[she] may have to challenge or contest said foreclosure.” The circuit court agreed with U.S.

Bank’s contention that Curtis had breached the settlement agreement by “tak[ing] positions

in the pending foreclosure action” that are “contrary to and violate her express obligations

under the Settlement Agreement.” The circuit court also agreed that “any provision seeking

to waive a statute of limitations defense in perpetuity is unenforceable,” so the court

evaluated the claim under the standard five-year statute of limitations for settlement

agreements and found that U.S. Bank’s claim fell within that statutory period of time. We

hold that the circuit court did not err in finding that U.S. Bank’s claim was timely.

4
In its brief, U.S. Bank states that it commenced its action to enforce the settlement
agreement on 5 August 2021, which is the date the original complaint was filed. However,
U.S. Bank did not allege a breach of the settlement agreement and seek an order enforcing
the settlement agreement until its amended complaint filed on 29 October 2021. It later
filed a separate motion to enforce the settlement agreement on 14 March 2022.

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III. Dismissal

Curtis asserts that the circuit court erred in denying her motion to dismiss because

the prior action for foreclosure brought by Seterus (U.S. Bank’s predecessor) was dismissed

with prejudice. See Curtis v. Seterus, No. 04CV-16-1153, 28 January 2019 (agreed order of

dismissal with prejudice). The case law is clear that a dismissal of an action with prejudice

constitutes a final adjudication on the merits. Hicks v. Allstate Ins. Co., 304 Ark. 101, 799

S.W.2d 809 (1990).

Curtis also argues that under the claim-preclusion facet of res judicata, a valid and

final judgment rendered on the merits by a court of competent jurisdiction bars another

action by the plaintiff or his privies against the defendant or his privies on the same claim.

Muccio v. Hunt, 2014 Ark. 35. Claim preclusion bars not only the relitigation of claims that

were actually litigated in the first suit, but also those that could have been litigated. Id.

Where a case is based on the same events as the subject matter of a previous lawsuit, claim

preclusion will apply even if the subsequent lawsuit raises new legal issues and seeks

additional remedies. Id.

Curtis contends that she raised the defense of res judicata below, but the circuit court

rejected the defense and instead granted the foreclosure decree based on the enforcement of

the settlement agreement. She argues that the settlement agreement did not require Seterus

to dismiss its claims with prejudice; instead, it required Curtis to dismiss her claims with

prejudice during a certain period, and it allowed Seterus to continue on to foreclosure.

Instead, Seterus agreed to an order dismissing with prejudice the 2016 case in which it had

filed a counterclaim for foreclosure. She concludes that this court should reverse the decree

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of foreclosure and dismiss the action under the defense of res judicata because the judicial-

foreclosure action was previously dismissed with prejudice.

U.S. Bank counters that its claim to enforce the settlement agreement is not barred

by res judicata because there has not been a prior adjudication or dismissal on the issue of

Curtis’s breach of the settlement agreement. Res judicata bars only the relitigation of claims

that were actually litigated in the first suit or those that could have been litigated. Beebe v.

Fountain Lake Sch. Dist., 365 Ark. 536, 231 S.W.3d 628 (2006). The 2016 action described

above concerned Curtis’s default under the terms of the mortgage, while the present action

concerns Curtis’s breach of the settlement agreement that resulted from the 2016 action.

We hold that the circuit court did not err in rejecting Curtis’s res judicata defense.

While U.S. Bank’s original complaint did allege a default under the terms of the mortgage

and note, its amended complaint alleged a breach of the October 2018 settlement agreement

and sought to enforce the settlement agreement. This claim has not been made or litigated

in any previous litigation.

IV. Insufficient Evidence

Curtis argues that even if the circuit court was correct in enforcing the settlement

agreement, U.S. Bank was still required to present evidence supporting its claim. But, she

asserts, there was no testimony on the outstanding balance of the note, and there was no

proper foundation for the note to be entered into evidence. She contends that the circuit

court acknowledged this lack of evidence in its February 2023 order wherein it directed

U.S. Bank to submit an affidavit itemizing the indebtedness secured by the property along

with a proposed decree of foreclosure. After the affidavit was submitted, Curtis objected to

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the lack of evidence supporting the foreclosure, but the circuit court proceeded to enter the

decree of foreclosure and “improperly relied upon facts included in the affidavit in order to

form the order’s basis.” She asserts that the circuit court erred in relying on the affidavit

and that the foreclosure decree should be reversed.

In response, U.S. Bank asserts that Curtis has failed to recognize the atypical nature

of this foreclosure action in that U.S. Bank sought enforcement of and a judgment based on

the settlement agreement. Curtis admitted to the note and mortgage in the settlement

agreement, which established the existing indebtedness initially created by the note, and

U.S. Bank submitted an affidavit of debt as ordered by the circuit court. There was no

dispute that Curtis agreed to the settlement agreement, and with no remaining issues to be

tried, there was no need for a trial. After the affidavit was filed, Curtis objected to its use

but did not dispute the amount of debt recited. U.S. Bank concludes that because Curtis

had conceded the debt, the payment history, and the default, the circuit court properly

entered the foreclosure decree after receiving and reviewing the affidavit of debt.

We hold that the circuit court did not err in entering the foreclosure order after

receiving the affidavit of debt. Curtis is focused on proof supporting the foreclosure, but

because this judgment is based on the settlement agreement, the only proof needed was

proof of Curtis’s breach of the settlement agreement by challenging the foreclosure action.

Her actions in the present litigation are proof of that breach.

Affirmed.

TUCKER and BARRETT, JJ., agree.

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Miller, Butler, Schneider, Pawlik & Rozzell, PLLC, by: George M. Rozzell IV, for

appellant.

Wilson & Associates, PLLC, by: H. Keith Morrison, for separate appellee U.S. Bank

Trust National Association.

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