Davis v. National Homes Acceptance Corp.
| Decision Date | 01 October 1981 |
| Docket Number | Civ. A. No. 80-C-1126-S. |
| Citation | 523 F. Supp. 477 |
| Parties | Melvin P. DAVIS and Carol K. Davis, Plaintiffs, v. NATIONAL HOMES ACCEPTANCE CORPORATION; Janie B. Airhard and Max Cleland, as Administrator of Veterans, Veterans Administration of the United States of America, Defendants. |
| Court | U.S. District Court — Northern District of Alabama |
Carleton P. Ketcham, Jr., Birmingham, Ala., for plaintiffs.
Frank Donaldson, U. S. Atty., Birmingham, Ala., for defendants.
The intervenor-defendant1 Lomas & Nettleton Company has moved the Court for summary judgment in its favor. The pleadings, affidavits, and documents provided the Court in support of summary judgment2 show that there is no genuine issue as to any material facts and the defendants are entitled to judgment as a matter of law. Summary judgment shall accordingly be granted.
Plaintiffs Melvin P. Davis and Carol K. Davis brought this action for declaratory judgment seeking a determination of the parties' respective obligations with respect to a Veterans-Administration guaranteed mortgage loan. In 1976, the plaintiffs executed and delivered to Baker Mortgage Company a mortgage on certain property in Jefferson County, Alabama. The mortgage was guaranteed by the Veterans Administration ("VA"). Baker Mortgage Company later assigned and sold this mortgage to National Homes Acceptance Corporation ("NHAC").
On February 15, 1978 the plaintiffs conveyed, by warranty deed, their interest in the property to Dwight W. Kline. The warranty deed contains the recitation:
As part of the consideration herein, grantee agrees to assume and pay the balance of approximately $31,710.00 on that certain mortgage from grantors to Baker Mortgage Corporation recorded in Real Volume 1346, page 869, said mortgage transferred to National Homes Acceptance Corporation....
Contrary to the allegation of the complaint, there is no evidence before the Court that the sale to Kline was conditioned upon the Davises being released from their obligation to NHAC.3 Following the sale, NHAC was furnished by plaintiffs' counsel with a copy of the warranty deed by which the property was conveyed from the plaintiffs to Kline, a $35.00 "transfer fee", and an assignment and disclaimer to escrow funds. NHAC acknowledged the conveyance, and Kline commenced making his mortgage payments to NHAC. Plaintiffs never requested of VA, and VA never gave them a release of their obligation to indemnify VA in the event that VA were called upon to pay a deficiency following a default.
By the first part of February, 1979, Kline had defaulted on the loan, and on May 16, 1979, the VA wrote to plaintiff Melvin Davis and advised him that VA, in turn, had been informed by NHAC that Kline was delinquent with the payments on his loan, and that "foreclosure appears probable". The letter was sent to the address of the property.
NHAC published in the Alabama Messenger, a weekly newspaper of general circulation in Jefferson County, Alabama, a notice of the foreclosure sale. The notice was published on June 30, July 7, July 14, and July 21, 1979. The notice related that the foreclosure sale would take place on July 23, 1979, at the Jefferson County Courthouse.
The property was sold on August 13, 1979 in front of the courthouse door to the highest bidder — NHAC, for $19,834.00. The foreclosure sale resulted in a deficiency of $14,038.37; and upon demand by NHAC, VA paid the total amount of the deficiency to NHAC. After plaintiffs initiated this action, VA counterclaimed against them for the amount of the deficiency and for accelerated decay or waste of the premises. Intervenor-defendant Lomas & Nettleton Company subsequently succeeded in interest to the property purchased by NHAC at the foreclosure sale.
Plaintiffs have consented to the entry of judgment dismissing the VA as a party to this action, and granting VA's counterclaim against them in the amount of $2,500.00. Thus, the only remaining issues are whether plaintiffs were released by NHAC from their obligation to repay the loan, and whether the foreclosure conducted by NHAC was invalid for failure to give the statutorily required notice.
There can be no question but that the foreclosure sale met the publication requirements of § 35-10-8 of the Code of Alabama of 1975. The uncontroverted affidavits reflect publication of all the statutorily required information in a well established weekly newspaper for three successive weeks. Defendants are entitled to judgment as a matter of law on this issue. Appelbaum v. First Nat'l Bank, 235 Ala. 380, 179 So. 373 (1938); Hayden v. Smith, 216 Ala. 428, 113 So. 293 (1927).
On the issue of whether plai...
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Constantine v. First Alabama Bank of Birmingham
...circulation. It has been held that publication of a foreclosure notice in that newspaper is valid. Davis v. National Homes Acceptance Corporation, 523 F.Supp. 477 (N.D.Ala.1981). Having found no error as to any presented issue, we affirm the final judgment of the circuit The foregoing opini......