Kennedy v. WELLS FARGO HOME MORTG.

• Decision Date: 17 January 2003
• Citation: 853 So.2d 1009
• Parties: James KENNEDY v. WELLS FARGO HOME MORTGAGE.
• Court: Alabama Court of Civil Appeals

853 So.2d 1009

James KENNEDY v. WELLS FARGO HOME MORTGAGE.

2011060.

Court of Civil Appeals of Alabama.

January 17, 2003.

Dawn L. Brown, Legal Services of Metro Birmingham, Inc., Birmingham, for appellant. Chalice E. Tucker of Shapiro & Tucker, L.L.P., Birmingham, for appellee.

THOMPSON, Judge.

On December 17, 2001, Wells Fargo Home Mortgage, Inc. ("Wells Fargo"), filed a complaint seeking to eject James Kennedy and Tammie Kennedy from certain real property it contended that it owned. James Kennedy filed an answer and denied the material allegations in Wells Fargo's complaint. The record indicates that Tammie Kennedy was not served and that she made no appearance in this action; therefore, we refer to James Kennedy ("Kennedy") as the sole defendant.

On February 6, 2002, Wells Fargo moved for a summary judgment; in support of its summary-judgment motion it submitted the affidavit of Chalice E. Tucker, the lawyer representing Wells Fargo. In that affidavit, Tucker stated that on February 12, 1998, Wells Fargo purchased Kennedy's property at a foreclosure sale¹ and, on that same date, made a demand for possession of the property. Tucker also asserted that Wells Fargo had not transferred its interest in the property and that it had not entered into an agreement with Kennedy regarding his continued possession of the property. The record indicates that, after the foreclosure sale, Kennedy filed a petition in bankruptcy and confirmed the debt to Wells Fargo; on July 13, 1998, the bankruptcy court entered an order allowing Kennedy to maintain possession of the property, subject to the condition that he continue to make payments on the debt he owed to Wells Fargo. In support of its motion for a summary judgment, Wells Fargo submitted the following documentary evidence, largely derived from public records: the Kennedys' 1992 FHA mortgage on the property; the February 12, 1998, mortgage-foreclosure deed obtained by Norwest Mortgage, Inc., which is the predecessor corporation to Wells Fargo; and Norwest's February 12, 1998, letter to Kennedy demanding possession of the property.

Kennedy opposed Wells Fargo's motion for a summary judgment by arguing that the motion was procedurally deficient because, he argued, Tucker's affidavit was not based upon personal knowledge, as required by Rule 56(e), Ala. R. Civ. P. Kennedy also argued that the summary-judgment motion did not contain a narrative summary of the undisputed facts as required by Rule 56(c)(1), Ala. R. Civ. P.

On March 18, 2002, Wells Fargo amended its motion for a summary judgment. In support of that motion, Wells Fargo again submitted an affidavit by Tucker, which stated that the matters set forth in the affidavit were based on Tucker's personal knowledge. Otherwise, the March 18, 2002, amended motion for a summary judgment and the documentation submitted in support of that amended motion were identical to the original February 6, 2002, motion for a summary judgment and supporting documentation.

Kennedy filed an opposition to the amended motion for a summary judgment; he argued primarily that the amended motion was also procedurally defective because, he asserted, it did not comply with Rule 56, Ala. R. Civ. P. Kennedy also asserted that factual issues existed regarding Wells Fargo's ownership of the property and whether Kennedy had a right to possess the property. In support of his opposition to the amended summary-judgment motion, Kennedy submitted his own affidavit; an order from the bankruptcy court; a receipt, dated June 11, 2001, evidencing his payment of $2,761.94² to Wells Fargo; and a document evidencing Wells Fargo's return to him of a payment of $290 that he had tendered in November 2001.

On April 15, 2002, Wells Fargo filed a second amended motion for a summary judgment. In support of that motion, Wells Fargo again submitted an affidavit by Tucker; in addition to reiterating the substance of the first two affidavits, Tucker's affidavit submitted in support of the second amended summary-judgment motion also set forth certain facts related to Kennedy's bankruptcy proceeding, including the amount Tucker maintained the bankruptcy trustee had determined Kennedy still owed Wells Fargo; an allegation that Kennedy had not satisfied the debt owed to Wells Fargo; and an allegation that, upon Kennedy's failure to repay that indebtedness, Wells Fargo had elected to proceed with the eviction action. In addition to the documents it had submitted in support of its earlier summary-judgment motions, Wells Fargo submitted a copy of the bankruptcy court's July 13, 1998, order; the November 8, 2001, order of the bankruptcy court dismissing Kennedy's bankruptcy action; a "proof of claim" from the bankruptcy court indicating Kennedy owed Wells Fargo $5,965.07; and an "interim statement" of the bankruptcy court indicating that Kennedy had paid $1,950.43 toward the debt he owed Wells Fargo.

On April 24, 2002, Kennedy filed an opposition to Wells Fargo's April 15, 2002, second amended motion for a summary judgment. In his opposition to that motion, Kennedy again argued that Wells Fargo's motion did not comply with Rule 56, Ala. R. Civ. P., and that certain factual issues existed that were sufficient to defeat a summary judgment. Kennedy did not submit any further evidence in support of his April 24, 2002, opposition to the motion for a summary judgment.

On April 30, 2002, the trial court entered a summary judgment in favor of Wells Fargo. In that judgment, the trial court set forth the following allegedly undisputed facts:

"(1) [Wells Fargo] acquired the property as the result of a foreclosure sale on February 12, 1998.

"(2) [Kennedy] has continued to occupy the property although a demand was made for possession on February 12, 1998.

"(3) A Chapter 13 Bankruptcy petition was filed by [Kennedy] on March 30, 1998, and the case was confirmed on June 29, 1998.

"(4) On July 13, 1998, the bankruptcy court entered an order affirming the confirmation [of the debt to Wells Fargo] but allowing [Wells Fargo] to proceed to evict [Kennedy] from the premises if [Kennedy] failed to complete the bankruptcy case for any reason.

"(5) The bankruptcy case was dismissed on November 8, 2001.

"(6) This action was filed on December 17, 2001.

"It, therefore, appears there is no genuine issue as to any material fact and the plaintiff, Wells Fargo Home Mortgage, Inc., is entitled to a judgment as a matter of law."

On appeal, Kennedy first argues that the trial court erred in entering a summary judgment in favor of Wells Fargo because, he argues, Wells Fargo's summary-judgment motion did not comply with Rule 56, Ala. R. Civ. P. Kennedy first argues that the summary-judgment motion did not contain a "narrative summary of what the movant contends to be the undisputed material facts." See Rule 56(c)(1), Ala. R. Civ. P. However, each summary-judgment motion was supported by an affidavit executed by Tucker, on behalf of Wells Fargo, that set forth a summary of the facts. For the purposes of this opinion, however, we address Kennedy's argument as it pertains to the last of Tucker's affidavits, the one submitted in support of Wells Fargo's second amended motion for a summary judgment; of the three of Tucker's affidavits submitted by Wells Fargo, that affidavit sets forth the most comprehensive recitation of Wells Fargo's version of the facts of this case. We note that, although Kennedy argues otherwise, the affidavit references and is supported by properly certified copies of mortgages, deeds, and other supporting documents.

In International Fidelity Insurance Co. v. Gilliam, 659 So.2d 24 (Ala.1995), our supreme court held that a summary-judgment movant had complied with the requirements of Rule 56(c)(1), Ala. R. Civ. P., when it submitted "exhibits sufficient to meet the narrative summary requirement" of that rule. 659 So.2d at 27. In White v. Howie, 677 So.2d 752, 754 (Ala.Civ.App. 1995), this court held that an affidavit submitted in support of a motion for a summary judgment and containing a narrative summary of the facts was sufficient to meet the Rule 56 requirement for a narrative summary of the undisputed facts. See also Barlow v. Piggly Wiggly Dixieland, Inc., 680 So.2d 297 (Ala.Civ.App.1996) (a pretrial statement listing claims and referencing supporting documents was sufficient to meet the narrative-summary requirement of Rule 56(e)).

In this case, Tucker's affidavit sets forth Wells Fargo's version of the undisputed facts of this action. That affidavit referenced properly submitted supporting documents. Therefore, Kennedy has not persuaded this court that Wells Fargo failed to comply with the narrative-summary requirement of Rule 56(c)(1), Ala. R. Civ. P.

Kennedy also contends that Wells Fargo's motion for a summary judgment was not properly supported because the affidavit Tucker submitted in support of that motion was not based upon Tucker's personal knowledge, as is required by Rule 56(e), Ala. R. Civ. P., and that a representative of Wells Fargo, not Tucker, was the appropriate person to submit an affidavit on behalf of Wells Fargo pertaining to Wells Fargo's dealings with Kennedy. Rule 56(e) provides, in pertinent part:

"Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith...."

Rule 56(e), Ala. R. Civ. P.

Kennedy cites Home Bank of Guntersville v. Perpetual Federal Savings & Loan Association, 547 So.2d 840 (Ala.1989), in support of his argument. In that case, the defendant's lawyer filed an affidavit in opposition to the plaintiff's motion for a summary judgment. Our supreme court held that under the Alabama Code of Professional Responsibility,³ the defendant's...