Williams v. Wells Fargo Bank, N.A.

• Decision Date: 15 April 2016
• Docket Number: 2140890.
• Parties: Felicia WILLIAMS. v. WELLS FARGO BANK, N.A.
• Court: Alabama Court of Civil Appeals

218 So.3d 816

Felicia WILLIAMS.

v.WELLS FARGO BANK, N.A.

2140890.

Court of Civil Appeals of Alabama.

April 15, 2016.

Rehearing Denied June 10, 2016.

Certiorari Denied Aug. 12, 2016

Alabama Supreme Court 1151012.

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

D. Keith Andress, Catherine Crosby Long, and Jade E. Sipes of Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., Birmingham, for appellee.

PITTMAN, Judge.

Felicia Williams appeals from a summary judgment entered in favor of Wells Fargo Bank, N.A. ("Wells Fargo"), by the Tuscaloosa Circuit Court ("the trial court") in an ejectment action. We affirm.

Facts and Procedural History

In March 2005, Williams borrowed $135,945 from First Magnus Financial Corporation ("First Magnus") in order to buy a parcel of real property located at 12340 South Pointe Drive, Moundville, which is in Tuscaloosa County ("the property"); executed a promissory note ("the note") payable to the order of First Magnus in the principal amount of $135,945; and executed a mortgage ("the mortgage") on the property naming Mortgage Electronic Registration Systems, Inc. ("MERS"), as nominee for First Magnus, as the mortgagee. The legal description of the property in the mortgage erroneously omitted the lot number of the property; however, the mortgage correctly identified the street address of the property as 12340 South Pointe Drive, Moundville. Sometime before April 21, 2005, First Magnus executed an indorsement on the note making it payable to the order of Wells Fargo, and on April 21, 2005, Wells Fargo acquired possession of the note.

Williams failed to make most of the payments that were due on the note before March 2009. Wells Fargo scheduled several foreclosure sales before January 2009 but canceled them. In March 2009, Wells Fargo scheduled a foreclosure sale for May 7, 2009, and published a notice of the May 7, 2009, foreclosure sale in a newspaper published in Tuscaloosa County once a week for three consecutive weeks before May 7, 2009. At the foreclosure sale on May 7, 2009, Wells Fargo bid $172,824.17 for the property, which was the highest bid, and the auctioneer executed a foreclosure deed conveying the property to Wells Fargo. That same day, Wells Fargo's counsel sent Williams a letter demanding possession of the property by certified mail; the letter was returned with a stamp indicating that it was being returned because it had been "unclaimed."

On May 18, 2009, Wells Fargo sued Williams, stating a claim of ejectment and seeking possession of the property. When Williams failed to file an answer or otherwise defend, Wells Fargo sought and obtained an entry of default and a default judgment against Williams. Thereafter, Williams filed a motion asking the trial court to set aside the default judgment. In support of that motion, Williams filed an affidavit in which she gave the following testimony that is pertinent to the issues in this appeal:

"9. In January of 2009, I signed a contract with FML Law Center out of Irvine, California to try to work out a loan modification agreement with my lender; I paid them a $1,000 down payment to do so.

"10. When I began receiving notices for the foreclosure I contacted FML Law Center with the understanding that they were attorneys representing my interests in [my] home."

(Emphasis added.)

In response to Williams's motion, the trial court entered an order setting aside the default judgment. Thereafter, Williams filed an answer to Wells Fargo's complaint and a counterclaim. Her answer denied that Wells Fargo was entitled to possession of the property and asserted various affirmative defenses. Williams's counterclaim stated several claims against Wells Fargo; however, only one of Williams's claims, her breach-of-contract claim based upon Wells Fargo's alleged breach of a contract to modify her loan, is pertinent to the issues in this appeal. Williams's breach-of-contract claim alleged:

"19. A contract existed between [Wells Fargo] and Ms. Williams to modify her loan.

"20. Wells Fargo breached that agreement.

"21. As a result of said breach, Ms. Williams was damaged."

After answering Williams's counterclaim, Wells Fargo, in December 2011, filed a motion for a summary judgment with respect to Williams's counterclaim. In support of its motion, Wells Fargo filed an affidavit executed by Erin A. Hirzel Roesch. Roesch's affidavit stated:

"1. My name is Erin A. Hirzel Roesch, and I am a Vice President of Loan Documentation for [Wells Fargo]. This affidavit is based upon my personal knowledge obtained from my investigation into the documents located within Wells Fargo's loan file for [Williams].

"2. On March 29, 2005, Williams executed [the note] in favor of [First Magnus], which was secured by [the mortgage on the property]. True and correct copies of the [n]ote and [m]ortgage are attached hereto as Exhibit A.

"3. [First Magnus] [i]ndorsed the [n]ote to Wells Fargo. See [n]ote contained in Exhibit A.

"4. Williams failed to make timely payments beginning with her July 2005 contractual due date. A true and correct copy of the [l]oan's payment history, including all charges and debits to Williams'[s] account, is attached hereto as Exhibit B.

"5. Williams made no payments from July 1, 2005 through October 31, 2005. She made a payment on November 9, 2005, which was applied to her July 2005 payment. Williams made no payment in December 2005.

"6. Williams failed to make any payments in January, February, and March 2006. She made payments during April through July 2006. Following her July 5, 2006 payment, Williams was contractually due for her November 1, 2005 payment, meaning she was nine payments behind (exclusive of all other loan charges associated with delinquent payments).

"7. Due to Williams'[s] default, foreclosure was initiated during October 2006, with a scheduled sale date of December 7, 2006. However, this sale date was postponed due to an issue involving the [p]roperty's legal description.

"8. This issue was resolved, but when Williams failed to make any payments in 2007, the foreclosure process was resumed in December 2007. The new scheduled sale date was February 14, 2008.

"9. On February 7, 2008, the foreclosure sale was placed on hold in order to work with Williams to try to keep her in the [p]roperty. But when Williams failed to communicate with Wells Fargo, the foreclosure process was resumed February 25, 2008.

"10. A new foreclosure sale date was set for April 24, 2008. On April 10, 2008, this foreclosure sale was placed on hold to again work with Williams for her to keep the [p]roperty. On June 26, 2008, Williams'[s] loss mitigation was denied due to Williams'[s] failure to return required documents.

"11. Though the foreclosure sale was rescheduled for August 21, 2008, Wells Fargo instead agreed to modify Williams'[s] loan. Williams returned the required documents on October 13, 2008, and the loan modification became effective October 15, 2008.

"12. Williams paid no money to Wells Fargo for this modification. After her loan was modified, she never made a payment.

"13. Following this default, the [l]oan was accelerated on March 20, 2009. A true and correct copy of the [n]otice of [a]cceleration is attached hereto as Exhibit C. A foreclosure sale date of May 7, 2009 was set, and public notices ran in the Tuscaloosa News on March 24, March 31, and April 7, 2009. True and correct copies of the public notices are attached hereto as Exhibit D.

"14. Williams failed to cure the default, and the foreclosure sale was held on May 7, 2009. Wells Fargo purchased the [p]roperty at the sale. A true and correct copy of the [f]oreclosure [d]eed is attached hereto as Exhibit E.

"15. Wells Fargo sent a demand for possession to Williams on May 7, 2009, pursuant to Alabama Code section 6–5–251 (1975). A true and correct copy of the [d]emand for [p]ossession is attached hereto as Exhibit F."

Williams filed a motion to strike Roesch's affidavit and the documents attached to it on the grounds (1) that the affidavit failed to establish that Roesch had personal knowledge of the facts recited in it and (2) that the documents attached to her affidavit were not properly authenticated by her testimony in the affidavit. In addition, Williams filed an affidavit in which she stated:

"I have personal knowledge of the matters set forth in this affidavit, and I am competent to testify about the matters set forth herein.

"I bought the property ... on March 29, 2005. At that time, I executed a promissory note with [First Magnus]. I also signed a mortgage with [MERS] as nominee for [First Magnus]. The mortgage was recorded in the probate records of Tuscaloosa County Alabama. The payment for my principal and interest on the note is $795.64. Wells Fargo was acting as the servicer of my loan. However, as far as I know, the ownership of the note and mortgage has never changed. Although I was notified that Wells Fargo would be servicing my loan, I was never notified that the note and mortgage had ever been assigned or transferred to Wells Fargo Bank.

"On or about September 1, 2006, my husband and I separated. As a result of the separation, I had a reduction in income and began having difficulty making my mortgage payments. I began contacting the servicer of my mortgagee, Wells Fargo Bank, in November 2006 about making payment arrangements. I stayed in contact with Wells Fargo through May 7, 2009 when the foreclosure sale took place.

"I spoke to the mortgage company numerous times from November 2006 through May 7, 2009 regarding a work out plan through the[ir] loss mitigation program which is required by [the United States Department of Housing and Urban Development (‘HUD’) ] in order to save my home from foreclosure. They told me they would work with me and to send in a hardship letter. I sent the letter to them in December 2006; however I never heard from them. I was told by them that the foreclosure would not go forward as long as they were working with me through the loss mitigation program. I

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