Smith v. Sec'y of Veterans Affairs

• Decision Date: 24 June 2011
• Docket Number: 2100194.
• Citation: 92 So.3d 766
• Parties: Frank S. SMITH, Jr. v. SECRETARY OF VETERANS AFFAIRS, an officer of the United States of America.
• Court: Alabama Court of Civil Appeals

92 So.3d 766

Frank S. SMITH, Jr.

v.SECRETARY OF VETERANS AFFAIRS, an officer of the United States of America.

2100194.

Court of Civil Appeals of Alabama.

June 24, 2011.

Matthew Kinder, Fultondale, for appellant.

John T. Bender, Mobile, for appellee.

BRYAN, Judge.

The issue presented by this appeal is whether the trial court erred in entering a summary judgment in favor of the Secretary of Veterans Affairs, an officer of the United States of America (“the Secretary”), in his ejectment action against Frank S. Smith, Jr. (“Frank”). For the reasons discussed below, we hold that the trial court erred in entering the summary judgment, and we remand the cause for further proceedings consistent with this opinion.

Frank purchased a house located on 9th Court South in Bessemer (“the house”) in 1998. In connection with the purchase, Frank, joined “pro forma” by his wife, Juliet L. Smith (“Juliet”), mortgaged the house to Franklin American Mortgage Company (“Franklin”) to secure the paymentof a promissory note evidencing a debt in the principal amount of $60,690.

On April 23, 2009, the Secretary sued Frank and Juliet, stating a claim of ejectment and seeking possession of the house. As the factual basis of his claim, the Secretary alleged that the mortgage had been assigned to him; that he had sold the house at a foreclosure sale on February 22, 2007; that he had purchased the house at the foreclosure sale; that the auctioneer who had sold the house at the foreclosure sale had executed an auctioneer's deed conveying the house to the Secretary; that the Secretary had demanded in writing that Frank and Juliet vacate the house; and that Frank and Juliet had failed to vacate the house.

Juliet had vacated the house before the Secretary filed his ejectment action, and she was never served with process. Frank, however, still lived in the house, and he was served. Answering, Frank denied the allegations of the complaint and asserted various affirmative defenses, which included “[d]efective notice,” “[d]efective sale,” and “[w]rongful foreclosure.”

The Secretary moved for a summary judgment, asserting that, as a matter of law, he was entitled to possession of the house because, he said, he owned legal title to the house by virtue of the auctioneer's deed. In support of his motion, the Secretary submitted an affidavit signed by Scott Hiatt, which stated:

“My name is Scott Hiatt, and I am Assistant Vice President and Attorney in Fact for Bank of America, N.A. In my employment capacity, I am personally familiar with the account of Frank S. Smith, Jr. and Juliet L. Smith....

“On February 22, 2007, Plaintiff, Bank of America, N.A., sold at foreclosure the following real property located in Jefferson County, Alabama:

“[legal description of the house];

“Pursuant to power of sale contained in a promissory note and mortgage executed by Frank S. Smith, Jr. and Juliet L. Smith dated December 29, 1998, to and in favor of Franklin American Mortgage Company by instrument recorded in ... the records in the Office of the Judge of Probate, Jefferson County, Alabama, which mortgage was subsequently assigned to The Secretary of Veterans Affairs, an Officer of the United States of America by instrument recorded ... and re-recorded in ... the said Probate Court Records.

“Frank S. Smith, Jr. and Juliet Smith defaulted in the payments of said indebtedness and the Secretary of Veterans Affairs commenced foreclosure with written notices to Frank S. Smith, Jr. and Juliet Smith and due newspaper publication in The Alabama Messenger.

“Said real property was sold at foreclosure February 22, 2007, for a successful bid of $66,097.50, paid by The Secretary of Veterans Affairs, Purchaser. Frank S. Smith, Jr. and Juliet Smith were notified of said foreclosure sale by letter dated February 28, 2007, sent by certified mail of the foreclosure proceeding and [Frank S. Smith and Juliet Smith] were given ten (10) days to vacate said property.”

(Emphasis added.) Along with Hiatt's affidavit, the Secretary submitted an uncertified copy of the mortgage; uncertified copies of the subsequent assignments of the mortgagee's rights under the mortgage, which included an assignment to the Secretary; an uncertified copy of the auctioneer's deed; an unauthenticated copy of an affidavit by the publisher of the Alabama Messenger; and an unauthenticated copy of a letter dated February 28, 2007, from an attorney representing the Secretary and addressed to Frank and Juliet at the house, which informed them that the Secretary had purchased the house at the foreclosure sale on February 22, 2007, and demanded that they vacate the house within 10 days.

Frank opposed the summary-judgment motion by filing a pleading titled “Defendant's Response to Plaintiff's Motion for Summary Judgment.” In his response, Frank argued, among other things, that the Secretary had failed to establish that he was entitled to possession of the house because, Frank said, the Hiatt affidavit did not comply with Rule 56(e), Ala. R. Civ. P., because, Frank said, (1) it did not state how Hiatt, as an officer of, and attorney-in-fact for, Bank of America, N.A. (“Bank of America”), had acquired personal knowledge of the information recited in his affidavit, (2) it did not affirmatively show that Hiatt was competent to testify to that information, and (3) it was not accompanied by sworn or certified copies of the documents to which it referred.¹

Following a hearing, the trial court entered a summary judgment in favor of the Secretary on August 3, 2010, without stating its rationale. On August 31, 2010, Frank filed a Rule 59, Ala. R. Civ. P., postjudgment motion, which the trial court denied on October 13, 2010.

Frank timely appealed to this court. Due to lack of jurisdiction, we transferred the appeal to the supreme court. The supreme court then transferred the appeal back to this court pursuant to § 12–2–7(6), Ala.Code 1975.

“We review a summary judgment de novo. American Liberty Ins. Co. v. AmSouth Bank, 825 So.2d 786 (Ala.2002).

“ ‘We 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. Once a party moving for a summary judgment establishes that no genuine issue of material fact exists, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. “Substantial evidence” is “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” In reviewing a summary judgment, we view the evidence in the light most favorable to the nonmovant and entertain such reasonable inferences as the jury would have been free to draw.’

“Nationwide Prop. & Cas. Ins. Co. [ v. DPF Architects, P.C.], 792 So.2d [369] at 372 [ (Ala.2001) ] (citations omitted), quoted in American Liberty Ins. Co., 825 So.2d at 790.”

Potter v. First Real Estate Co., 844 So.2d 540, 545 (Ala.2002).

Frank argues, among other things, that the trial court erred in entering a summary judgment in favor of the Secretary because, he says, the Secretary failed to establish that he was entitled to possession of the house because, Frank says, the Hiatt affidavit did not comply with Rule 56(e) because, Frank says, (1) it did not state how Hiatt, as an officer of, and attorney-in-fact for, Bank of America had acquired personal knowledge of the information recited in his affidavit; (2) it did not affirmatively show that Hiatt was competent to testify to that information; and (3) it was not accompanied by sworn or certified copies of the documents referred to in the affidavit. The Secretary, on the other hand, argues that Frank waived his objectionto Hiatt's affidavit and the unsworn, uncertified, and unauthenticated documents that accompanied it because, the Secretary says, Frank did not move to strike them. In Ex parte Elba General Hospital & Nursing Home, Inc., 828 So.2d 308, 312–13 (Ala.2001), the supreme court stated:

“On the question whether a trial court should consider a defective affidavit introduced in support of a motion for summary judgment and not objected to by the opposing party, we have consistently held that a failure to object constitutes a waiver of the right to object to the affidavit and that in the absence of an objection the trial court may properly consider such an affidavit, even if an objection alleging the particular defect would clearly have been proper. See Lennon v. Petersen, 624 So.2d 171 (Ala.1993); Cain v. Sheraton Perimeter Park S. Hotel, 592 So.2d 218 (Ala.1991); Morris v. Young, 585 So.2d 1374 (Ala.1991); Perry v. Mobile County, 533 So.2d 602 (Ala.1988). An objection need not be made in any particular form. See McMillian v. Wallis, 567 So.2d 1199, 1205 (Ala.1990) (holding that a party must ‘call the [trial] court's attention’ to the fact that a deposition or affidavit is inadmissible and that by failing to do so a party waives any objection to the court's considering the affidavit or deposition).”

(Emphasis added.)

In the case now before us, although Frank did not move to strike Hiatt's affidavit and the unsworn, uncertified, and unauthenticated documents that accompanied it, Frank's response to the summary-judgment motion called the trial court's attention to the inadmissibility of the affidavit and those documents by objecting to them and stating the grounds of the objection. Therefore, we find no merit in the Secretary's argument that Frank waived his objection to...