Adler v. Bank of N.Y. Mellon

• Decision Date: 22 July 2016
• Docket Number: 2150286.
• Citation: 218 So.3d 831
• Parties: Edward J. ADLER III v. BANK OF NEW YORK MELLON.
• Court: Alabama Court of Civil Appeals

218 So.3d 831

Edward J. ADLER III

v.BANK OF NEW YORK MELLON.

2150286.

Court of Civil Appeals of Alabama.

July 22, 2016.

Rehearing Denied Sept. 9, 2016.

L. Daniel Mims and Theresa N. Williamson of The Mims Firm, PC, Mobile, for appellant.

Gregory C. Cook of Balch & Bingham LLP, Birmingham; and G. Lane Knight and Jacob C. Harper of Balch & Bingham LLP, Montgomery, for appellee.

THOMAS, Judge.

Edward J. Adler III appeals, challenging the orders of the Baldwin Circuit Court ("the circuit court") disposing of his claims against the Bank of New York Mellon, formerly known as the Bank of New York, as trustee for CHL Mortgage Pass–Through Trust 2003–11, Mortgage Pass–Through Certificates, Series 2003–11 ("BNYM2"), in favor of BNYM2 and disposing of BNYM2's claims against Adler in favor of BNYM2. The evidentiary materials that the parties presented to the circuit court reveal the following facts.

On January 31, 2003, Adler and his wife executed a note, secured by a mortgage, for the purchase of real property ("the property") located in a subdivision known as TimberCreek. The mortgage was executed in favor of Mortgage Electronic Registration Systems, Inc., acting as nominee for "First Alliance." The note and mortgage were subsequently transferred and assigned to the Bank of New York Mellon, formerly known as the Bank of New York, as trustee for the Certificate Holders CWMBS, Inc., Asset–Backed Certificates, Series 2003–11 ("BNYM1"). BNYM1 subsequently transferred and assigned the note and mortgage to BNYM2; however, the documents evidencing that transaction were lost. An "affidavit of lost assignment" that was recorded in the Baldwin Probate Court ("the probate court") on April 23, 2012, indicates that "the original assignment [from BNYM1 to BNYM2] was lost or misplaced before being recorded."

When Adler and his wife divorced in 2009, Adler was made responsible for all the debts of the marriage, which included the note secured by the mortgage. By 2012, Adler was in default on the note. BNYM2 thereafter initiated foreclosure proceedings ("the 2012 foreclosure"), and BNYM2 purchased the property at a foreclosure sale ("the 2012 foreclosure sale") on June 5, 2012. A foreclosure deed ("the 2012 foreclosure deed") was recorded in the probate court on June 19, 2012. Adler, however, continued to occupy the property. In August 2012, BNYM2 filed a complaint in the circuit court, seeking to eject Adler from the property, in case no. CV–12–901041 ("the 2012 ejectment action"). On October 9, 2012, the TimberCreek Property Owners Association, Inc. ("the POA"), filed a statement of lien in the probate court, in which it asserted that BNYM2—the record owner of the property—was liable for $990 plus interest to the POA for certain overdue fees, assessments, and charges.

On October 10, 2012, Adler filed a motion seeking a dismissal of or, alternatively, a summary judgment in the 2012 ejectment action. Adler's sole argument—that the circuit court should dispose of the action because BNYM2 lacked standing to bring the action—rested on his contention that the affidavit of lost assignment had failed to demonstrate that BNYM2 had received a valid assignment of the note and mortgage. Adler relied on the reasoning of Cadle Co. v. Shabani, 950 So.2d 277 (Ala.2006), and our reasoning in reliance on Cadle in Sturdivant v. BAC Home Loans Servicing, LP, 159 So.3d 15, 23–24 (Ala.Civ.App.2011) (concluding that BAC did not have standing to bring an ejectment action "because the record demonstrates that BAC did not have legal title to the property at the time it initiated its foreclosure action[; therefore], it cannot claim legal title to the property through the ... foreclosure sale and the resulting deed"), rev'd by Ex parte BAC Home Loans Servicing, LP, 159 So.3d 31 (Ala.2013), and by Ex parte GMAC Mortgage, LLC, 176 So.3d 845 (Ala.2013). See also Ex parte Rhodes, 144 So.3d 316, 318 (Ala.2013) ("In our recent decision of Ex parte BAC Home Loans Servicing, this Court expressly rejected the reasoning in Byrd [v. MorEquity, Inc., 94 So.3d 378 (Ala.Civ.App.2012) ], Sturdivant, and Cadle ."). However, at the time that Adler filed his motion, both Sturdivant and Cadle supported his argument. Although BNYM2 argued that it was unlike the plaintiffs in Sturdivant and Cadle, the circuit court entered a summary judgment in favor of Adler in the 2012 ejectment action on January 16, 2013. Accordingly, Adler continued to occupy the property. The summary judgment in the 2012 ejectment action neither revealed the circuit court's reasoning for entering the judgment nor declared that the 2012 foreclosure deed was void. The judgment reads, in its entirety: "Motion for Summary Judgment pursuant to Rule 56[, Ala. R. Civ. P.,] filed by [Adler] is hereby granted." BNYM2 did not file a notice of appeal in the 2012 ejectment action.

The events giving rise to this appeal began on March 25, 2014, when BNYM2 filed in the circuit court a complaint against Adler that was assigned case no. CV–14–900367 ("the 2014 action"). BNYM2 requested an order specifically setting aside the 2012 foreclosure deed and "reinstat[ing] the mortgage."¹ Adler filed a motion to dismiss or for a more definite statement, in which he supplied certain additional facts. Adler's motion reads, in pertinent part:

"On February 22, 2013, [the POA] conducted a foreclosure sale of the real property made the basis of the two actions filed by [BNYM2], and at that foreclosure sale, [Adler] was the highest and best bidder and acquired title to the property. A deed to the property, executed on February 28, 2013, was recorded on March 25, 2013, in the office of the Judge of Probate of Baldwin County, Alabama, at instrument number 1389028. A copy of that deed is attached hereto and labeled as Exhibit 'I.' The statutory right of redemption has now expired as it relates to the foreclosure of the real property by [the POA]'s foreclosure."

Adler argued that BNYM2 had failed to present grounds upon which the 2012 foreclosure deed should be set aside or upon which the mortgage should be "reinstated" and that the 2014 action was barred by the doctrine of equitable estoppel. The circuit court denied Adler's motion to dismiss, and, on January 21, 2015, Adler answered and counterclaimed, asserting that, because BNYM2 had failed to "ensure" that it had standing to bring the 2012 ejectment action, BNYM2 was now liable to Adler for damages for wrongful foreclosure, slander of title, negligence, and wantonness regarding the 2012 foreclosure and the 2012 ejectment action.

On March 30, 2015, BNYM2 filed a reply to Alder's counterclaim, but it failed to assert any affirmative defenses in its reply. On May 22, 2015, BNYM2 filed a Rule 12(c), Ala. R. Civ. P., motion for a judgment on the pleadings, arguing that Adler's counterclaim had referenced the 2012 ejectment action and that Adler's claims were barred by the applicable statute of limitations or were barred as a matter of law because Alder's claims were compulsory counterclaims that had not been raised in the 2012 ejectment action. That same day, BNYM2 also filed a motion for a summary judgment, seeking a judgment in its favor on its request for declaratory relief. See supra note 1. Adler filed responses. Specifically, Adler responded to BNYM2's Rule 12(c) motion, arguing that BNYM2 had waived the statute-of-limitations defense, see Rule 8(c), Ala. R. Civ. P. (listing affirmative defenses), because it did not raise it as an affirmative defense in its reply to his counterclaim and instead did so for the first time in the Rule 12(c) motion.

The circuit court held a hearing on July 21, 2015, and it entered two orders on August 4, 2015: It entered a summary judgment in favor of BNYM2, declaring that the 2012 foreclosure deed was void and that the note secured by the mortgage had not been satisfied, and it entered a judgment on the pleadings in favor of BNYM2 on Adler's claims.

On August 28, 2015, Adler filed a postjudgment motion, which the circuit court denied on October 20, 2015. On November 30, 2015, Adler filed a timely notice of appeal to the Alabama Supreme Court. The appeal was transferred to this court by the supreme court, pursuant to § 12–2–7(6), Ala.Code 1975. On appeal, Adler argues that the circuit court erred by denying his postjudgment motion. The grant or denial of a postjudgment motion rests within the sound discretion of the trial court. Flagstar Enters., Inc. v. Foster, 779 So.2d 1220, 1221 (Ala.2000) ; Dare Prods., Inc. v. Alabama, 574 So.2d 847, 850 (Ala.Civ.App.1990). In his postjudgment motion, Adler had requested reconsideration of the order entering a summary judgment in favor of BNYM2 on its claims and of the order entering a judgment on the pleadings in favor of BNYM2 on Adler's claims based upon, he claimed, certain newly discovered evidence that would demonstrate that BNYM2 was not a real party in interest and that BNYM2 lacked standing to maintain the 2014 action.

We first address whether BNYM2 lacked standing to sue Adler because a question of standing implicates subject-matter jurisdiction. Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 954 (Ala.2004). Adler contends that BNYM2 "lost its standing" and that the circuit court, therefore, lacked subject- matter jurisdiction over the 2014 action based upon his assertion that, after the orders had been entered, he learned that BNYM2 had transferred ownership of the note and mortgage to NRZ Pass–Though Trust V ("NRZ") on June 25, 2015, which was before the orders were entered on August 4, 2015.

Adler has not raised a standing question but, instead, has raised a real-party-in-interest question. " '[T]he question whether a party has standing to sue is distinct from whether [the party] is the real party in interest. ' " Ex parte Sterilite Corp. of Alabama, 837 So.2d 815, 818 (Ala.2002) (quoting Battle v. Alpha Chem. & Paper Co., 770 So.2d 626, 634 (Ala.Civ.App.2000) ). " '[T]he real party in interest...