Green v. Consumer Mortg., Inc.

• Decision Date: 25 September 2015
• Docket Number: 2140549.
• Parties: Willie L. GREEN v. CONSUMER MORTGAGE, INC.
• Court: Alabama Court of Civil Appeals

194 So.3d 247

Willie L. GREEN

v.CONSUMER MORTGAGE, INC.

2140549.

Court of Civil Appeals of Alabama.

Sept. 25, 2015.

Ishmael Jaffree, Mobile, for appellant

Leon F. Stamp, Mobile; and Glenn L. Davidson, Mobile, for appellant.

MOORE

, Judge.

Willie L. Green appeals from a summary judgment entered by the Mobile Circuit Court (“the trial court”) in favor of Consumer Mortgage, Inc. (“CMI”), on CMI's claims against Green seeking the possession of certain real property and damages for Green's wrongful retention of the subject real property. We reverse.

Procedural History

On June 26, 2013, CMI filed a complaint against Green, asserting, among other things, that CMI had conveyed certain real property situated in Bay Ridge Estates in Mobile (“the property”) by a vendor's lien deed to Green; that, by virtue of a May 17, 2013, foreclosure of that vendor's lien deed, CMI was the owner of the property; that CMI had served a written demand for possession of the property on Green; that Green had lost his right to redeem the property; and that Green had failed and refused to vacate the property despite CMI's demand that he do so. CMI sought possession of the property, money damages for the wrongful retention of the property by Green, an order stating that Green had forfeited his right to redeem the property, and a judgment against Green for the deficiency owed on the loan secured by the vendor's lien following the collection of $72,000 at the foreclosure sale.

Green filed an answer to the complaint on August 8, 2013, asserting that CMI was without legal title to the property “due to defective notice, defective sale, and wrongful foreclosure,” which, he claimed, made the foreclosure sale and foreclosure deed void. Green further asserted that the parties had signed an arbitration agreement and that the dispute was due to be arbitrated. Green filed an amended answer on August 23, 2013, asserting, among other things that CMI did not have standing because, he alleged, CMI had never owned or sold the property or provided proceeds secured by a mortgage on the property. On June 12, 2014, Green filed a motion to rescind the foreclosure sale and, pursuant to Rule 12(b)(6), Ala. R. Civ. P

., to dismiss the foreclosure action filed by CMI.

On June 13, 2014, CMI filed a motion to amend the complaint to add John W. Hall, the president and principal stockholder of CMI, as a plaintiff; the trial court granted that motion on June 20, 2014. In its motion to amend the complaint, CMI asserted that Hall was a necessary party because an assignment of the vendor's lien signed by Hall (but which lists CMI as the grantor) to CMI had not been recorded and because the vendor's lien had been foreclosed, in a second foreclosure proceeding, in Hall's name. In the amended complaint, CMI and Hall asserted, among other things, that Hall was the owner of the property following the second foreclosure of the vendor's lien and that Green had refused to vacate the property following a written demand for possession. CMI and Hall attached to the amended complaint a notice sent to Green on April 17, 2014, indicating that earlier foreclosure attempts of the vendor's lien—namely, CMI's May 2013 foreclosure alleged in its original complaint—had been problematic and informing him that Hall was reinitiating foreclosure proceedings and a subsequent notice sent to Green on May 22, 2014, informing Green that the property had been purchased at a foreclosure sale by Hall and requesting that Green vacate the property. On September 19, 2014, CMI and Hall filed a response to Green's Rule 12(b)(6)

motion, attaching thereto a copy of the vendor's lien deed; a copy of an April 23, 2013, letter from CMI's counsel to Green informing Green that, based on his continuing default in the repayment of the vendor's lien, the amount of his indebtedness had been accelerated, that CMI was going to foreclose on the property, and that the date of the scheduled foreclosure sale was May 17, 2013; and a copy of the foreclosure deed issued to CMI.

On February 12, 2015, CMI filed a motion for a summary judgment. Among other things, CMI attached to that motion Hall's affidavit, in which Hall stated that he had sold the property to Green pursuant to the vendor's lien deed. Green filed a response in opposition to CMI's summary-judgment motion on February 26, 2015. On March 4, 2015, Green filed a motion to compel arbitration; the trial court entered an order denying that motion on March 6, 2015.

On March 5, 2015, the trial court entered an order granting CMI's motion for a summary judgment. On that same date, the trial court entered an order awarding possession of the property to CMI and directing the trial-court clerk to issue a writ of possession in favor of CMI for the immediate possession of the property and directing the Mobile County sheriff to restore possession of the property to CMI. Also on March 5, 2015, Hall filed an affidavit in support of CMI's damages. Green filed a motion, asking the trial court to “reconsider” the summary judgment it had entered in favor of CMI; that motion was denied on March 6, 2015. Green filed a motion for a stay and to set a bond amount for appeal on March 12, 2015. CMI filed a response to Green's motion on March 20, 2015. On March 20, 2015, the trial court entered an order awarding CMI damages in the amount of $28,000 for the deficiency owed on the loan, with interest, following the collection of $72,000 at the foreclosure sale. Green filed his notice of appeal to this court on April 7, 2015. The trial court entered an order on April 10, 2015, granting Green's motion for a stay upon Green's posting a supersedeas bond in the amount of $125,000.

On August 4, 2015, this court, having concluded that the claims asserted by Hall against Green had not been disposed of by the March 5 and 20, 2015, orders, remanded the case to the trial court to consider whether to certify its March 20, 2015, order as a final judgment, pursuant to Rule 54(b), Ala. R. Civ. P

. On August 20, 2015, Green filed a motion in this court, seeking to reinstate the appeal; he asserted in that motion that, on August 13, 2015, Hall had filed a motion to dismiss the amended complaint and to allow the case to proceed only on the claims of CMI and that the trial court had granted that motion. Green attached to his motion a copy of Hall's motion to dismiss and the trial court's August 13, 2015, order granting Hall's motion and dismissing the amended complaint. Accordingly, the judgment in favor of CMI on its claims against Green is before us on review.

Facts

Hall stated in his affidavit filed in support of CMI's summary-judgment motion that he had rented the property to Green in January 2005 and that, in January 2006, he had sold the property to Green pursuant to a vendor's lien deed. On January 17, 2006, the vendor's lien deed to the property was issued in favor of Green. Green signed the vendor's lien deed and is identified in the deed as the grantee; Hall signed the vendor's lien deed, but CMI is identified in the deed as the grantor. CMI, as the grantor, reserved to itself in the deed a vendor's lien in the amount of $75,000 for satisfaction of the unpaid balance of the purchase price. The vendor's lien deed included conditions in case of Green's default in the payment of the vendor's lien, including the power of sale. According to Hall's affidavit, for the first two years Green made all the payments owed under the vendor's lien on time; however, Hall averred that, beginning in December 2007, Green began missing payments and sending “NSF”¹ payments and that, in 2011, Green stopped making payments entirely. According to Hall's affidavit, Green had last made a payment in September 2011, which, Hall stated, “was made for the payment then due, on July 1, 2011.”

In a letter dated April 23, 2013, from CMI's counsel to Green, Green was informed that, based on his continuing default in the repayment of the vendor's lien, the amount of his indebtedness had been accelerated, that CMI was going to foreclose on the property, and that the date of the scheduled foreclosure sale was May 17, 2013. At the foreclosure sale, CMI was the highest bidder, and, following the payment of $72,000, a foreclosure deed was executed in favor of CMI on May 30, 2013.

In a letter dated April 17, 2014, from CMI's counsel to Green, Green was informed that there had been a problem with the previous foreclosure because a check of the title to the property had not revealed a $20,000 tax lien asserted on behalf of the Internal Revenue Service and because an assignment of the vendor's lien deed from Hall to CMI had not been recorded, although it had been executed, and that Hall had begun the process of foreclosure anew due to Green's continuing default in the repayment of the indebtedness. The letter also informed Green that a foreclosure sale was scheduled for May 14, 2014.

In a letter dated May 22, 2014, from CMI's counsel to Green, Green was informed that the vendor's lien had been foreclosed on May 21, 2014, that Hall had purchased the property at the foreclosure sale, and that Hall was demanding that Green surrender possession of the property within 10 days of his receipt of the letter. Attached to the letter was a copy of the foreclosure deed, dated May 21, 2014, indicating that Hall had purchased the property for the sum of $72,000 at the foreclosure sale.

Standard of Review

The standard by which this court reviews a summary judgment is well settled:

“This Court's review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003)

. We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952–53 (Ala.2004).

In making

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