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Wilcher v. Way Acceptance Co.

The trial court erred in dismissing the plaintiff's amended complaint without permitting the plaintiff a reasonable opportunity to obtain requisite signatures, which was an amendable defect.

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Sonny Wilcher, acting pro se, appeals from a trial court order dismissing his wrongful foreclosure action for failure to add indispensable parties. Because the trial court erred in dismissing the action, we reverse. The record reveals that Sonny Wilcher and Jay Wilcher filed a complaint against Way Acceptance Co. “Way”, Duston Tapley, and Kathy Williams for wrongful foreclosure. They claimed that their land was used as collateral for a loan they did not authorize and of which they had no knowledge. They alleged that the defendants knowingly allowed the loan to be obtained using a forged document and then wrongfully foreclosed on their property when the loan was not paid. The defendants answered, and after some discovery, Way and Tapley moved to dismiss the complaint on the ground that it failed to name all of the proper parties. They also moved to dismiss Jay Wilcher as a party plaintiff because he had no interest in the property that was the subject of the foreclosure. Following a hearing, the trial court dismissed Jay Wilcher as a party plaintiff. The court found that there were three indispensable parties who were other owners of legal title to the property but were not added to the action. On September 17, 2009, the court ordered Sonny Wilcher to add these parties within 30 days or suffer the dismissal of the action.

On October 12, 2009, Wilcher filed an amended complaint adding as party plaintiffs the three other owners. But the complaint was signed only by Wilcher as “attorney-pro se.” On November 25, 2009, the trial court dismissed the case on the ground that the necessary parties were not added as previously ordered by the court.

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