Tidmore v. Citizens Bank & Trust, 2150834

CourtAlabama Court of Civil Appeals
Citation250 So.3d 577
Docket Number2150834
Decision Date12 May 2017

250 So.3d 577



Court of Civil Appeals of Alabama.

May 12, 2017
Rehearing Denied July 28, 2017
Certiorari Denied September 15, 2017

Alabama Supreme Court 1160995

Kenneth James Lay of Hood & Lay, LLC, Birmingham, for appellant.

Jeffrey McLaughlin and Lea Mosley Hicks of McLaughlin & Edmondson, LLC, Guntersville, for appellee.

THOMPSON, Presiding Judge.

On June 16, 2015, Citizens Bank and Trust ("Citizens") filed an unlawful-detainer action against Danny R. Tidmore in the Marshall District Court. On July 14, 2015, the action was transferred to the Marshall Circuit Court ("the trial court"), and Citizens amended its complaint, asserting an ejectment claim and seeking to recover on several promissory notes between Citizens and Tidmore. Citizens based its ejectment claim on its assertion that it was entitled to possession of certain property ("the property") by virtue of its recent foreclosure on a mortgage on the property executed by Tidmore and its purchase of the property at the foreclosure sale. Tidmore answered and counterclaimed, seeking both declaratory relief and seeking to recover monetary damages on claims asserting, among other things, negligence, wantonness, unjust enrichment, wrongful foreclosure, slander of title, breach of contract, fraud, "placed in false light," defamation, slander, libel, unfair and deceptive trade practices, and breach of the covenant of good faith and fair dealing.

On September 21, 2015, Citizens moved the trial court for an order awarding it possession of the property. On October 9, 2015, the trial court conducted a hearing on that request. Thereafter, on October 22, 2015, the trial court entered an order determining that Citizens was entitled to a writ of possession to the property. The trial court specified in that order that the parties' remaining claims would be heard at a later hearing. On November 4, 2015, Tidmore appealed to our supreme court, which transferred the appeal to this court pursuant to § 12–2–7, Ala. Code 1975. Citizens sought to dismiss that appeal, and the parties argued the issue whether the trial court had entered an order that constituted a preliminary injunction. On June 30,

250 So.3d 580

2016, this court, assuming, based on the positions of the parties, that the order was one granting a preliminary injunction, dismissed the appeal because a final judgment had subsequently been entered in the action. See Evans v. Cumberland Lake Country Club,Inc., 682 So.2d 11, 13 (Ala. 1996) (an appeal of a preliminary injunction was moot when the trial court entered a later, permanent injunction); and Gulf House Ass'n, Inc. v.Town of Gulf Shores, 484 So.2d 1061, 1064 (Ala. 1985) ("Whether or not the trial court erred in denying the preliminary injunction is moot, because there has been a final decision on the merits which denied the permanent injunction.").

While the appeal of the October 22, 2015, order was pending, Citizens moved for a summary judgment on all claims, and Tidmore opposed that motion. On May 2, 2016, the trial court purported to enter a summary judgment in favor of Citizens on all of the parties' claims and awarded Citizens monetary damages constituting principal and interest on the various outstanding loans Tidmore had obtained from Citizens. Tidmore filed a purported postjudgment motion, which the trial court denied. Tidmore timely appealed to our supreme court, which transferred the appeal to this court pursuant to § 12–2–7, Ala. Code 1975.

Initially, we note that because Tidmore's appeal of the October 22, 2015, order was pending in this court until June 30, 2016, the trial court lacked jurisdiction to enter its May 2, 2016, summary judgment. See Landry v. Landry, 91 So.3d 88, 89 (Ala. Civ. App. 2012) (jurisdiction can be in only one court at a time); and Johnson v. Willis, 893 So.2d 1138, 1141 (Ala. 2004) (" ‘[W]hile an appeal is pending, the trial court "can do nothing in respect to any matter or question which is involved in the appeal, and which may be adjudged by the appellate court." ’ " (quoting Reynolds v. Colonial Bank, 874 So.2d 497, 503 (Ala. 2003), quoting in turn Foster v. Greer & Sons, Inc., 446 So.2d 605, 608 (Ala. 1984) )). Accordingly, upon submission, this court entered an order reinvesting the trial court with jurisdiction to reenter its summary judgment. The trial court did so on April 20, 2017, and Tidmore's appeal then became effective. Rule 4(a)(4), Ala. R. App. P.; Hendricks v. KW Plastics, Inc., 5 So.3d 1289, 1290 (Ala. Civ. App. 2008).

The record indicates that on July 5, 2012, Tidmore and his former wife obtained a loan from Citizens that was secured by a mortgage on property that included the house in which the Tidmores resided. (Tidmore and his wife divorced, and Tidmore was awarded the house and the property, subject to its indebtedness; Citizens filed its ejectment action against only Tidmore.) The amount of the loan was $70,755.22, and it was evidenced by a "balloon note" payable over 85 months.

In the spring of 2013, Tidmore began having financial difficulties and did not remain current on his mortgage payments. Tidmore and Rick Malone, the Citizens loan officer, had several discussions regarding the late or missed payments. Malone stated that, at one point, Tidmore anticipated using the proceeds of the settlement he received, or would receive, from a legal action to catch up the mortgage payments, but, Malone stated, Tidmore later informed him that he could not do so because he had not received as large a settlement from that legal action as he had anticipated. At the October 9, 2015, hearing on Citizens's request for possession of the property, Tidmore disputed that he was behind in his payments to Citizens in the fall of 2014, although documents submitted by Citizens showed payments credited toward Tidmore's account a month to several months after their due

250 So.3d 581

dates. Regardless, it is undisputed that in October 2014 Tidmore made a payment to Citizens that was credited, except for $7.65, to his past-due September 2014 mortgage payment and that Tidmore made no further payments toward the mortgage indebtedness after that date. The trial court noted in its May 20, 2016, judgment in this matter, which, as noted, was reentered on April 20, 2017, that Tidmore had failed to make any payment toward the mortgage indebtedness in more than one year.

Tidmore filed for bankruptcy protection on November 24, 2014, but that action was dismissed on January 21, 2015, because of Tidmore's noncompliance with the bankruptcy plan. On February 10, 2015, Citizens notified Tidmore by letter that the mortgage loan was in default and that his failure to cure the default within ten days might result in the acceleration of the mortgage indebtedness. That letter asked Tidmore to contact Citizens for a determination of the amount necessary to pay the mortgage indebtedness in full. Attached to that letter was a "statement in compliance with the Fair Debt Collection Practices Act," see 15 U.S.C. § 1692 et seq., that set forth the amount of the original mortgage and the amounts necessary to pay the past-due amounts.

By letter dated March 3, 2015, Citizens notified Tidmore that it had elected to accelerate the mortgage indebtedness and of its intent to foreclose on the property pursuant to the mortgage contract by a foreclosure sale scheduled for March 31, 2015.

Tidmore again filed for bankruptcy protection on March 31, 2015, and that action was dismissed, again for noncompliance with the bankruptcy plan, on April 15, 2015. On April 17, 2015, Citizens again notified Tidmore of its acceleration of the mortgage indebtedness and that a foreclosure sale was scheduled for May 26, 2015. The foreclosure sale was conducted on May 26, 2015, and Citizens purchased the property for $48,839.25. The mortgage and the foreclosure deed described the foreclosed property as comprising "Lots 5, 6, 7, 8, 9, 10, 11 and 12 in the Elmer Miller Addition to the City of Albertville, Alabama." On May 26, 2015, Citizens notified Tidmore by letter of its foreclosure and its purchase of the property, and it demanded possession of the property.

Also on May 26, 2015, Tidmore filed for bankruptcy protection for a third time. That third bankruptcy action was dismissed on June 10, 2015. Citizens argued to the trial court that Tidmore's third bankruptcy filing within a six-month-period did not operate to stay the foreclosure sale. See 11 U.S.C. § 362(c)(4)(A)(i).

We note that in 2012 and 2013, Tidmore also obtained four loans from Citizens other than the mortgage loan. Three of those four loans were secured by various vehicles he owned; the other loan appears to be a signature loan. Tidmore defaulted on each of the other four loans. Citizens's amended complaint in this action sought an award of damages related to each of those loans. The trial court's judgment awards Citizens monetary damages based on its finding that Tidmore owed Citizens on five outstanding "notes" and that "the total outstanding principal and interest owed to [Citizens] from [Tidmore] as of April 21, 2016, is $48,617.94." Tidmore has not challenged the amount of that damages award, nor has he argued that he cannot determine the amount to which Citizens might be entitled in reference to only the mortgage indebtedness. The other loans are not at issue in this appeal, and, therefore, we do...

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