Hayes v. Deutsche Bank National Trust Co., 060520 ALSC, 1190002

• Docket Nº: 1190002
• Opinion Judge: MENDHEIM, JUSTICE.
• Party Name: Jennifer Taylor Hayes and Timothy Hayes v. Deutsche Bank National Trust Company, as trustee of Ameriquest Mortgage Securities, Inc., Asset Backed Pass-Through Certificates, Series 2004-R5, and Ocwen Loan Servicing, LLC
• Judge Panel: Bolin, Wise, Bryan, Sellers, and Mitchell, JJ., concur. Parker, C.J., and Stewart, J., dissent. PARKER, Chief Justice (dissenting).
• Case Date: June 05, 2020
• Court: Supreme Court of Alabama

Jennifer Taylor Hayes and Timothy Hayes

v.

Deutsche Bank National Trust Company, as trustee of Ameriquest Mortgage Securities, Inc., Asset Backed Pass-Through Certificates, Series 2004-R5, and Ocwen Loan Servicing, LLC

No. 1190002

Supreme Court of Alabama

June 5, 2020

Appeal from Baldwin Circuit Court (CV-17-901069)

MENDHEIM, JUSTICE.

AFFIRMED. NO OPINION.

Bolin, Wise, Bryan, Sellers, and Mitchell, JJ., concur.

Parker, C.J., and Stewart, J., dissent.

PARKER, Chief Justice (dissenting).

Jennifer Taylor Hayes and Timothy Hayes appeal from a summary judgment entered against them by the Baldwin Circuit Court on their counterclaim against Deutsche Bank National Trust Company, as trustee of Ameriquest Mortgage Securities, Inc., Asset Backed Pass-Through Certificates, Series 2004-R5, and Ocwen Loan Servicing, LLC (hereinafter referred to collectively as "the Bank"). Because the Hayeses provided substantial evidence that the Bank breached the terms of their mortgage by failing to credit payments made by the Hayeses, I would reverse the summary judgment.

In 2004, the Hayeses executed a mortgage on their house in Fairhope to secure a loan from Deutsche Bank National Trust Company. By 2013, they had fallen behind on their payments. The Bank foreclosed and, when the Hayeses did not move out, sued for ejectment in the Baldwin Circuit Court. The Hayeses counterclaimed, alleging breach of contract and wrongful foreclosure, arguing that the Bank had failed to apply certain payments to their account. The terms of the loan required the Bank to apply payments or to return them.

The Bank moved for a summary judgment on the Hayeses' counterclaim. The Hayeses responded to the Bank's motion with deposition testimony of Timothy Hayes that "there were many payments made '05, '06, '07, '08, '09, always different mortgage servicing companies. There were payments made in those periods. They're not being credited at all." The circuit court entered a summary judgment in favor of the Bank, and the Hayeses appeal.

This Court reviews an appeal from a summary judgment de novo, that is, "[w]e apply the same standard of review the trial court used in determining whether the evidence presented to the trial court created a genuine issue of material fact." Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So.2d 369, 372 (Ala. 2000). To prevail on a motion for a summary judgment, the movant "must make a prima facie showing that there are no genuine issues of material fact and that he is entitled to a judgment as a matter of law. ... If this showing is made, the burden then shifts to the nonmovant to rebut the movant's prima facie showing by 'substantial evidence.'" Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala. 1992). "Substantial evidence" is "evidence of such weight and quality that fair-minded persons in the exercise...