United States District Court, S.D. Alabama, Southern Division
KRISTI K. DuBOSE, District Judge.
This matter is before the Court on Plaintiff's (partial) Motion for Summary Judgment (Doc. 35), Defendants' Response/Motion to Strike (Doc. 41) and Plaintiff's Reply (Doc. 42).
I. Motion to Strike
The Crosbys move to strike the Affidavit of VMF employee Brent Ridge (Doc. 35-1) as: 1) hearsay claiming that he lacks personal knowledge of the activities of CMH Homes, Inc. related to them; and 2) as referencing unauthenticated documents because he is not a custodian of records or other officer at VMF and thus, the documents attached to VMF's summary judgment response cannot be affirmed as true and accurate. (Doc. 41 at 1-2).
Pursuant to Rule 56 of the Federal Rules of Civil Procedure motions to strike on summary judgment are no longer appropriate. Revised Rule 56(c)(2) provides that "[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." The Advisory Committee Notes specify as follows:
"Subdivision (c)(2) provides that a party may object that material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence. The objection functions much as an objection at trial, adjusted for the pretrial setting. The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated. There is no need to make a separate motion to strike. If the case goes to trial, failure to challenge admissibility at the summary-judgment stage does not forfeit the right to challenge admissibility at trial."
Fed.R.Civ.P. 56, Adv. Comm. Notes, "Subdivision(c)" (2010 Amendments) (emphasis added). As such, the Court construes the Crosbys' motion to strike as objections.
At the outset, the Crosbys' contentions are contradicted by Ridge's own assertions. In the Affidavit, Ridge (VMF Portfolio Manager) asserts that he is one of the VMF employees who has custody and control over the company's records, the records were made by a person with knowledge of the events and charged with recording same, the records are kept in the ordinary course of business at VMF, and moreover, that his affidavit is based on his personal knowledge and/or a summary of VMF's business records. Moreover, courts may consider hearsay on summary judgment so long as the statement can be reduced to admissible form at trial. See, e.g., Jones v. UPS Ground Freight, 683 F.3d 1283, 1293-1294 (11th Cir. 2012) ("a district court may consider a hearsay statement in passing on a motion for summary judgment if the statement could be reduced to admissible evidence at trial or reduced to admissible form"); Macuba v. Deboer, 193 F.3d 1316, 1323 (11th Cir. 1999) (same). Further, even unauthenticated or otherwise inadmissible evidence is properly considered on summary judgment so long as it can be reduced to admissible form at trial. See, e.g., Rowell v. BellSouth Corp., 433 F.3d 794, 800 (11th Cir. 2005) (on summary judgment, courts consider "evidence which can be reduced to an admissible form"); Longcrier v. HL-A Co., Inc., 595 F.Supp.2d 1218, 1223 (S.D. Ala. 2008) ("The general rule in this Circuit is that parties' exhibits may be considered for purposes of pretrial rulings so long as they can be reduced to admissible form at trial"). Thus, whether the Ridge Affidavit is hearsay and/or VMF's exhibits are admissible as submitted on summary judgment is of no moment. Additionally, the Crosbys have made no showing that the exhibits cannot be reduced to admissible form at trial (and there is no reason to believe otherwise). As such, the Crobsy's objections are OVERRULED.
II. Factual Background
This dispute stems from the Defendants Stephen D. Crosby and Karen Crosby (the Crosby)'s October 26, 2012 purchase of a 2012 Southern Energy manufactured home (mobile home) from CMH Homes, Inc., d/b/a Clayton Homes Northport, AL, and execution of a manufactured home retail installment contract and disclosure statement (the contract). (Doc. 1-1; Doc. 35-1 at 2 (Aff. Ridge); Doc. 29 (amended)). In the contract, the Crobsys promised to repay the principal sum of $61, 380.97 at 11.20% interest in 240 monthly installments of $765.09. (Id.) As part of the contract, CMH and the Crosbys assigned CMH's interests to Plaintiff Vanderbilt Mortgage and Finance, Inc. (VMF). (Doc. 1-1 at 11; Doc. 35-1 at 2 (Aff. Ridge)). In conjunction with the purchase of the mobile home and as security for that contract, the Crosbys granted VMF a $64, 535.73 mortgage on real property (5 acres) in Toxey, Alabama. (Doc. 1-2).
At some point later, the Crosbys defaulted under the contract. (Doc. 35-1 at 3 (Aff. Ridge)). VMF provided written notice on January 21, 2014 (Doc. 35-5), informing the Crobsys of the default, but the Crosbys failed to pay the $2, 507.09 due within 30 days of the notice and instead paid $814.31 on February 24, 2014. (Doc. 35 at 3; Doc. 35-1 at 3 (Aff. Ridge)). The Crobsys' payment was insufficient to cure the default on the loan. (Doc. 35-1 at 3 (Aff. Ridge)). On May 9, 2014, VMF sent the Crosbys a Notice of Demand for Payment in Full of Your Account (accelerating the indebtedness on the contract), giving the Crosbys until May 19, 2014 to pay $66, 391.62. (Doc. 35-6). On May 19, 2014, the Crosbys paid $900. (Doc. 35 at 3). The Crobsys' payment was insufficient to cure the default on the loan. (Doc. 35-1 at 3 (Aff. Ridge)). VMF received no further payments. (Id.) Due to the Crosbys' failure to pay, VMF initiated this litigation alleging: Count I - default (breach) of the mobile home contract, Count II - immediate possession of the mobile home, and Count III - judicial foreclosure and sale of the property and mobile home pursuant to Section 35-10-3 Ala. Code. (Docs. 1, 29). VMF seeks recovery of the unpaid balance, interest, late charges, escrow items, payoff processing fee, and attorneys' fees. (Doc. 35-1 at 3 (Aff. Ridge)).
III. Standard of Review
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a) (Dec. 2010). The recently amended Rule 56(c) provides as follows:
(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed ...