Berry v. Deutsche Bank Nat'l Trust Co.
Decision Date | 27 August 2010 |
Docket Number | 2080840. |
Citation | 57 So.3d 142 |
Parties | Stephanie BERRY and Eva Berryv.DEUTSCHE BANK NATIONAL TRUST COMPANY, as trustee for Long Beach Mortgage Loan Trust 2003–1. |
Court | Alabama Court of Civil Appeals |
OPINION TEXT STARTS HERE
Kenneth James Lay, Legal Services Alabama, Inc., Birmingham, for appellants.Gregory M. Deitsch, R. Ryan Daugherty, and Meaghan E. Ryan of Sirote & Permutt, P.C., Birmingham, for appellee.
On Application for Rehearing
The opinion of May 14, 2010, is withdrawn, and the following is substituted therefor.
Stephanie Berry and Eva Berry appeal from a summary judgment in favor of Deutsche Bank National Trust Company, as trustee for Long Beach Mortgage Loan Trust 2003–1 (“Deutsche Bank”), in Deutsche Bank's ejectment action against them. We reverse and remand.
On October 15, 2002, Stephanie borrowed $48,450 from Long Beach Mortgage Company (“Long Beach”) and executed a variable-rate promissory note (“the note”) in which she promised to repay the loan with interest. Contemporaneously, Stephanie and her grandmother, Eva, executed (1) a mortgage (“the mortgage”) in favor of Long Beach on a parcel of real property they owned in Birmingham (“the property”) and (2) an instrument titled “Fixed/Adjustable Rate Rider” (“the rate rider”).
On July 24, 2008, Deutsche Bank sued Stephanie and Eva, stating a claim of ejectment. As the factual basis of its claim, Deutsche Bank alleged that it had foreclosed the mortgage on June 19, 2008, that it had purchased the property at the foreclosure sale, that it had served Stephanie and Eva with a written demand for possession of the property, and that Stephanie and Eva had not vacated the property. As relief, Deutsche Bank sought possession of the property and damages for Stephanie and Eva's failure to vacate the property. In addition, Deutsche Bank sought a determination that Stephanie and Eva had forfeited their right to redeem the property by failing to vacate the property within 10 days after receiving Deutsche Bank's written demand for possession.
Answering, Stephanie and Eva denied the allegations of the complaint and asserted, as an affirmative defense, that Deutsche Bank was not entitled to prevail on its ejectment claim because, Stephanie and Eva said, it did not own title to the property because, Stephanie and Eva said, the foreclosure of the mortgage upon which Deutsche Bank based its claim of title was invalid.
On September 29, 2008, Deutsche Bank moved the trial court for a summary judgment on the ground that it was entitled to possession of the property by virtue of its foreclosing the mortgage. In support of its motion, Deutsche Bank submitted, among other things, authenticated copies of the foreclosure deed conveying title to the property to Deutsche Bank and a June 25, 2008, letter addressed to Stephanie and Eva demanding possession of the property. Deutsche Bank also submitted evidence establishing that Stephanie and Eva had not vacated the property.
Stephanie and Eva moved the trial court to grant them time to conduct discovery before responding to the summary-judgment motion, and the trial court did so. On December 3, 2008, Deutsche Bank filed additional evidence in support of its summary-judgment motion. That evidence included authenticated copies of the note; the mortgage; the rate rider; and letters giving Stephanie and Eva notice of default, notice of their right to cure the default within 30 days, notice of acceleration of the sums due under the mortgage, and notice of the foreclosure sale.
On December 17, 2008, Stephanie and Eva filed a response to Deutsche Bank's summary-judgment motion. In their response, Stephanie and Eva asserted, among other things, that Deutsche Bank was not entitled to a summary judgment because, they said, the foreclosure upon which Deutsche Bank based its ejectment claim was invalid because, they said, Deutsche Bank had breached the fiduciary duty it owed Stephanie and Eva by purchasing the property at the foreclosure sale for $33,915 when the market value of the property was $84,800 according to the Jefferson County tax assessor. In support of this argument, Stephanie and Eva submitted an affidavit made by Eva in which she attested that the Jefferson County tax assessor had determined that the market value of the property in 2008 was $84,800. On January 9, 2009, Deutsche Bank moved the trial court to “to strike any testimony in [Stephanie and Eva's] affidavits testifying to the value of the property” on the ground that Stephanie and Eva had “failed to submit any admissible evidence relevant to the value of the property at the time of the foreclosure sale.” Also on January 9, 2009, Stephanie and Eva filed an unauthenticated copy of the 2008 tax notice on the property prepared by the Jefferson County tax collector (“the 2008 tax notice”), which listed the market value of the property as $84,800, and an unauthenticated copy of a document purporting to be an estimate of the value of property prepared by Zillow.com, which estimated the market value of the property to be $86,500. Deutsche Bank did not move to strike the unauthenticated copy of the 2008 tax notice or the unauthenticated copy of the Zillow.com estimate.
On March 6, 2009, the trial court entered a judgment in favor of Deutsche Bank. The judgment stated:
“There are many factors that the Court must consider when determining a property's fair market value. In doing so, the Court must require more evidence than a copy of...
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