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Givianpour v. Curtain

Supreme Court of Alabama

October 24, 2014

Cameron Givianpour
v.
Thomas J. Curtain, Sr

Released for Publication June 17, 2015.

Appeal from Jefferson Circuit Court. (CV-12-900647). Michael G. Graffeo, Trial Judge.

For Appellant: Gregory A. Kennemer, Birmingham.

For Appellee: Greggory M. Deitsch, Kristen Cross, Joshua L. Hornady, Sirote & Permutt, P.C., Birmingham.

PARKER, Justice. Moore, C.J., and Stuart, Bolin, Shaw, Main, Wise, and Bryan, JJ., concur.

OPINION

Page 663

PARKER, Justice.[1]

Cameron Givianpour appeals from the Jefferson Circuit Court's dismissal of his complaint for the redemption of certain real property. We reverse and remand.

I. Facts and Procedural History

At a foreclosure sale held on March 1, 2011, Thomas J. Curtain, Sr., purchased the real property located on Caldwell Mill Road, Mountain Brook, for $295,000 (" the property" ). The foreclosed mortgagors

Page 664

were Charles Givianpour and Concetta Givianpour, Cameron Givianpour's parents.

It is undisputed that during their ownership of the property, the Givianpours leased the property to Amy Newell. After Curtain foreclosed on the property, he filed a complaint against Newell in the Jefferson Circuit Court in which he demanded possession of the property, as well as " damages for wrongful retention of said real property." On July 15, 2011, Newell filed a petition for Chapter 7 bankruptcy in the United States Bankruptcy Court for the Southern Division of the Northern District of Alabama (" the bankruptcy court" ). On July 29, 2011, Curtain filed in the bankruptcy court a motion seeking a relief from the automatic stay; the bankruptcy court on August 9, 2011, granted the motion and lifted the stay. On November 10, 2011, the Jefferson Circuit Court entered a summary judgment in favor of Curtain, awarding him possession of the property and damages. On December 14, 2011, the bankruptcy court discharged Newell's debt, including any rent owed for continued possession of the property.

On February 8, 2012, pursuant to § 6-5-252, Ala. Code 1975,[2] Cameron Givianpour presented Curtain with a demand for lawful charges for the purpose of redeeming the property.[3] On February 13, 2012, Curtain presented Givianpour a statement in the amount of $351,925.10, which amount included the purchase price, interest, insurance, and ad valorem taxes on the property. The statement also included a charge for payment of rent on the property for tenant Newell in the amount of $4,950: $450 per month from March 1, 2011, through January 31, 2012 (" the rent charge" ).

Givianpour did not tender the redemption funds to Curtain. Instead, on February 29, 2012, Givianpour filed a complaint in the Jefferson Circuit Court against Curtain seeking to redeem the property. In his complaint, Givianpour alleged that the rent charge constituted an illegal or exaggerated charge for which no legal basis exists. Givianpour stated that because of the allegedly unlawful charge he was " unable to ascertain the true amount of the lawful charges owed" and that he " need[ed] the Court's assistance to determine the amount of lawful charges properly owed." Givianpour further stated that he was " ready to do equity and pay all lawful charges to redeem the property." Givianpour did not pay any of the redemption funds into the circuit court as is generally done in accordance with § 6-5-256, Ala. Code 1975,[4]

Page 665

when a written statement of all debt and charges is provided to the redemptioner.

On March 13, 2012, Curtain filed a " Motion to Dismiss for Lack of Subject Matter Jurisdiction or for Judgment on the Pleadings." The motion alleged, among other things, that the circuit court lacked subject-matter jurisdiction under § 6-5-256 because Givianpour had failed either to tender the amount for redemption or to pay the amount for redemption into court with the filing of his complaint. The motion asserted that Givianpour was " only contesting the $4,950.00 claimed for rent and therefore does not have a valid excuse for not tendering money into the Court, but could have tendered the minimum amount due for redemption." The motion further asserted that because Givianpour had failed to comply " with all the condition precedents to redemption," his complaint for redemption was due to be dismissed.

On May 13, 2013, the circuit court entered an order denying Curtain's motion for a judgment on the pleadings but granting his motion to dismiss Givianpour's complaint for lack of subject-matter jurisdiction. As to the former, the circuit court denied the motion on the ground that the pleadings were not " closed" as of March 13, 2012, the date the motion was filed. As to the latter, the circuit court agreed with Curtain that Givianpour's failure to pay the amount for redemption into the court deprived the court of jurisdiction. Specifically, the circuit court stated that " [p]er Ala. Code 1975, § 6-5-256, an Alabama Circuit Court is not vested with jurisdiction over a disputed redemption amount claim unless the redeemer/plaintiff simultaneously pays into Court the charges presented, or if disputed, the amount that is not disputed." The circuit court further observed that Alabama courts have held that strict compliance with § 6-5-256 is " excused only where the redeemer/plaintiff can demonstrate a valid excuse for not paying the full redemption amount." Relying on this Court's decision in Moore v. Horton, 491 So.2d 921 (Ala. 1986), the circuit court concluded that even though the rent charge was " either improper, or questionable, or both," it was " of easy verification." The circuit court thus concluded that Givianpour " failed to exercise due diligence to ascertain the proper amount to tender into court on February 29, 2012, when he filed this action without tendering the amount owed," and that he " has not demonstrated any valid excuse" for that failure.

On June 11, 2013, Givianpour filed a motion to alter, amend, or vacate the circuit court's judgment. In the motion, Givianpour emphasized the fact that the parties disagreed as to whether the rent charge was a " lawful charge" under § 6-5-253, Ala. Code 1975.[5] Givianpour also argued,

Page 666

for the first time, that the charge for insurance had not been " prorated" and that " [t]he statement of lawful charges does not state the dates on which the premiums begin or end, nor [does it] reflect the regularity of when they are paid or when they are owed." The circuit court held a hearing on the motion on June 26, 2013.

On September 6, 2013, the circuit court entered an order denying Givianpour's motion to alter, amend, or vacate its original judgment. In pertinent part, the order stated:

" In this case, the Court determined certain of the charges claimed were easily computed and not in dispute. The law does not preclude [Givianpour] from paying undisputed charges, and, by his own admission, Givianpour had the money to pay those charges. While [Givianpour] is certainly entitled to dispute the rents due and property insurance money paid, the very nature of this statute is to 'pay the amount' into Court, and then let the Court determine proper charges due. As such, the Court agrees with Curtain [that] the charges claimed included undisputed amounts and/or amounts readily ascertainable by Givianpour. Therefore, [Givianpour's motion] is due to be denied."

Givianpour appeals the circuit court's judgment of May 13, 2013, dismissing Givianpour's complaint; he also challenges its denial of his motion ...


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