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Ex parte First United Security Bank and Paty Holdings, LLC

Supreme Court of Alabama

September 26, 2014

Ex parte First United Security Bank and Paty Holdings, LLC; (In re: First United Security Bank and Paty Holdings, LLC
v.
W. Hardy McCollum, Judge of Probate of Tuscaloosa County, et al.)

As Corrected August 4, 2015.

(Tuscaloosa Circuit Court, CV-10-901031; Court of Civil Appeals, 2110828).

For Petitioners: Burt W. Newsome of Newsome Law, LLC, Birmingham.

For W. Hardy McCollum, in his capacity as Tuscaloosa County Judge of Probate and Peyton Cochrane, in his capacity as Tuscaloosa County Tax Collector, Respondents: Travis R. Wisdom of The Wisdom Firm LLC, Auburn.

For Wayne Allen Russell, Jr., Respondent: Stan Brobston of Brobston & Brobston, P.C., Bessemer.

Amicus curiae Moore Oil Company, Inc., in support of the petitioners: Charles R. Johanson III, William B. Hairston III, and Colin House of Engel, Hairston & Johanson, P.C, Birmingham.

MURDOCK, Justice. Stuart, Bolin, Parker, Shaw, Main, and Wise, JJ., concur. Moore, C.J., concurs in the result. Bryan, J., recuses himself.[*]

OPINION

Page 373

PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS

MURDOCK, Justice.

This Court granted certiorari review to clarify our decision in First Union National Bank of Florida v. Lee County Commission, 75 So.3d 105 (Ala. 2011), and to further address who is the " owner" entitled to recover excess funds received from the tax sale of real estate. We reverse and remand.

I. Facts and Procedural History

First United Security Bank (" First United" ) and its wholly owned subsidiary, Paty Holdings, LLC (sometimes hereinafter referred to collectively as " the bank" ), brought suit to recover excess funds received by Tuscaloosa County from the tax sale of real estate owned by Wayne Allen Russell, Jr., and on which First United had a mortgage. The bank foreclosed on its mortgage after the tax sale but before the demand for excess proceeds was made.

In their decision below, the Court of Civil Appeals stated the facts and the substance of the trial court's judgment as follows:

" On December 30, 2010, First United Security Bank filed a verified complaint against W. Hardy McCollum, in his capacity as Tuscaloosa County Judge of Probate, and Peyton Cochrane, in his capacity as Tuscaloosa County Tax Collector, seeking, among other things, a judgment declaring that it was entitled to the excess funds Tuscaloosa County received at the sale of the property for unpaid taxes. The complaint was later amended to add Russell as a defendant and Paty Holdings, LLC, as a plaintiff.
" The case was submitted to the trial court for a decision upon the parties' briefs and the following joint stipulation of facts:
" '....
" '4. On or about February 15, 2002, Wayne Allen Russell, Jr. ... executed a note and mortgage in favor of First United Security Bank .... Said mortgage was recorded in the ...

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