United States District Court, N.D. Alabama, Southern Division
NELL C. DYSART, Plaintiff,
TRUSTMARK NATIONAL BANK, a corporation; DAVID B. ANDERSON; DEANNA L. WEIDNER; ANDERSON & WEIDNER, et. al., Defendants.
KARON OWEN BOWDRE, Chief District Judge.
This foreclosure matter is before the court on cross motions for summary judgment: "Defendant Trustmark National Bank's Motion for Summary Judgment on Plaintiff's Remaining Breach of Contract Claim" (doc. 48), and the motion for summary judgment that the pro se Plaintiff filed "in the alternative" along with her sur-reply and motion to strike (doc. 58). This matter has received thorough briefing: in addition to Defendant's supporting briefs (doc. 48, 55 & 66) and evidentiary material (docs. 49-1 through 7 & 56-1), the Plaintiff has filed her opposition brief (doc. 53) and a sur-reply (doc. 58), as well as evidentiary material (docs. 63, 64, 64-1, & 64-2). For the reasons stated in this Memorandum Opinion, the court FINDS that the Plaintiff's motion to strike is due to be GRANTED IN PART and DENIED IN PART; that the Defendant's motion for summary judgment is due to be GRANTED; and that the Plaintiff's motion for summary judgment is due to be DENIED.
I. PROCEDURAL BACKGROUND
The Plaintiff, Nell C. Dysart, originally filed this suit ("Dysart IV") on October 11, 2013 in the Circuit Court of Jefferson County, Alabama, and on November 15, 2013, Defendant Trustmark removed it to this federal court based on diversity jurisdiction. This suit is the fourth action that Dysart has filed complaining about alleged misdeeds relating to the foreclosure and sale of property that she formerly owned, and all of the previous actions have ended in dismissal. According to Trustmark, Dysart voluntarily dismissed the first action brought in state court alleging wrongful disclosure (Dysart I). Subsequently, she filed two federal actions, each of which the court dismissed without prejudice for failure to state a claim on the federal allegations: Dysart v. BankTrust, No. 10-3521-IPJ (N.D. Ala. filed Dec. 20, 2010 and dismissed Jan. 7, 2011) (Dysart II) (alleging claims against both Defendants in the current lawsuit arising out of the foreclosure of her home on October 15, 2007: RICO violations; breach of contract of a mortgage contract; slander of title; wrongful disclosure; abuse of process; violation of Fair Debt Collection Practices Act; and fraud/suppression/deceit); and Dysart v. BankTrust, et. al., No. 11-1917-LSC (N.D. Ala. filed Dec. 20, 2010 and dismissed July 3, 2012) (Dysart III) (alleging claims against both Defendants in the current lawsuit, as well as additional defendants, relating to the foreclosure of her home on October 15, 2007: fraud, RICO violations, breach of a mortgage contract, trespass, and intentional infliction of emotional distress). Dysart appealed Dysart III, in which the district court had dismissed the federal claims and had refused to exercise jurisdiction over the state law claims; the Eleventh Circuit affirmed the district court's dismissal.
In addition to the other lawsuits, Dysart filed for Chapter 7 bankruptcy, No. 04-3798-TBB and for Chapter 13 bankruptcy, No. 04-9416-TBB. Trustmark (then People's Bank and Trust Company) filed an adversary proceeding, No. 07-0040-TBB, related to that bankruptcy case and addressing tax sales of Dysart's residence in which Dysart, the Jefferson County Tax Collector, and tax sale purchasers were also parties. Dysart filed a separate adversary proceeding against the tax collector and one of the tax sale purchasers.
The original Complaint in the instant case asserted claims against Defendants in addition to Trustmark, but the court has since dismissed those claims and has dismissed all Defendants except Trustmark. (Docs. 38 & 46). The Plaintiff's pleading has been, at times, a moving target. After briefing was completed on Trustmark's original motion to dismiss, the Plaintiff requested leave to file an amended complaint. The court allowed the amendment, which was followed by a second motion to dismiss (doc. 23). In the midst of the briefing on Trustmark's second motion to dismiss (doc. 20), the Plaintiff filed a motion for leave to file a second amended complaint (doc. 27), which the court denied (doc. 33). The court did allow the Plaintiff to amend her trespass claim set out in Count III (doc. 40), and another round of motions to dismiss ensued. As a result of Trustmark's motions to dismiss (docs. 20 & 41), the court dismissed all claims against Trustmark except the breach of contract claim asserted in Count I (docs. 38 & 46). The court denied Trustmark's motion as to the breach of contract claim, which was based on a statute of limitations argument, but stated that the denial was without prejudice to Trustmark's raising the statute of limitations issue again at the summary judgment stage with supporting case law and evidence. (Docs. 38 & 37, at 16). Trustmark does not again raise the statute of limitations bar in the motion for summary judgment currently before the court.
Subsequent to the court's order on the motions to dismiss, the Defendant filed the current motion for summary judgment. (Doc. 48). Along with her sur-reply to the Defendant's motion, the Plaintiff filed her own motion for summary judgment and motion to strike David Anderson's affidavit. (Doc. 58).
II. MOTION TO STRIKE
As part of her sur-reply (doc. 58), Dysart requested that the court strike Attorney David Anderson's affidavit (doc. 56-1). David Anderson's affidavit was originally filed in Dysart III. When Trustmark re-filed it in this case, it only filed 5 of the 31 exhibits that the affidavit purported to attach. In her motion, Dysart asserts that "[w]hat appears to be happening here is that, Trustmark is asking this Court to consider all of the exhibits that Mr. Anderson has attached and filed in a previous Dysart v. Trustmark action. Not just the ones referenced in the Reply." (Doc. 58, at 8). The court notes that in its Reply brief, Trustmark explains as follows: "Trustmark is filing the affidavit [of David B. Anderson] as Exhibit A to its Supplemental Evidentiary Submissions, but is omitting some of the exhibits on which it is not specifically relying, or which are otherwise already part of the record in this case, to reduce the volume of the filing. The full text and all exhibits to the original affidavit of Anderson can be found in 2:11-cv-01917-LSC...." (Doc. 55, at 3 n. 3).
Based on Trustmark's explanation that it does not rely on any affidavit exhibits not filed in this case, a statement borne out in the facts and arguments presented in Trustmark's Reply brief, the court must conclude that Dysart has misunderstood or misread the information in that brief. Accepting the limits that Trustmark proposes, the court does not agree that Anderson's affidavit is immaterial and in violation of Rule 56(c)(4), as Dysart alleges. Indeed, Dysart does not provide any specific objections about any of the statements in the affidavit or the exhibits attached in this action; the only specific objection she presents regards the foreclosure deed, an exhibit that is not one of the attachments to the affidavit filed in this case. The court finds that Dysart's objection is not well taken because Trustmark does not rely on the document to which she objects.
Dysart makes a general assertion that Anderson's affidavit was not made on personal knowledge; however, Anderson avers that he has "personal knowledge of the facts contained herein and those facts are true and correct." (Doc. 56-1, at 3). The court has no reason, and Dysart presents no reason, to disbelieve that statement. As to the exhibits attached to Anderson's affidavit in this case, which Anderson avers are true and correct copies, the court notes that three of the five attached exhibits are business record documents, correspondence either to or from the law firm in which Anderson is a partner regarding a case in which Anderson served as counsel. The other two documents are bankruptcy court records in the Chapter 13 case in which Anderson served as counsel. To the extent that any doubt exists whether Anderson can testify about the correctness of those records, and to avoid delay, the court takes judicial notice that Exhibits 23 and 24 to Anderson's affidavits are true and correct copies of those documents in Case No: 04-9416-TBB-13 in the United States Bankruptcy Court, Northern District of Alabama, Southern Division.
The court notes, however, that Trustmark's Reply brief does refer in a footnote to Dysart III and explains where "all exhibits to the original affidavit of Anderson can be found." Recognizing that this reference could be the genesis of Dysart's objection that Trustmark's Reply represented an attempt to incorporate by reference all exhibits to the original affidavit, the court will GRANT IN PART and DENY IN PART the motion to strike. The court FINDS that the motion is due to be DENIED to the extent that it requests the striking of Anderson's affidavit as filed in this case with the five attached exhibits. Given Dysart's interpretation of the Reply brief, in an abundance of caution to preserve clarity, the court FINDS that the motion is due to be GRANTED to the extent, if any, that Anderson's affidavit incorporates by reference exhibits attached to the original Anderson affidavit in Dysart III but not attached to the Anderson affidavit filed in the instant case , or otherwise attempts to attest to the correctness of the copies of Anderson affidavit exhibits not filed in this case; the court STRIKES any reference to exhibits that are listed in the Anderson affidavit but not attached to the Anderson affidavit in this case, and that are not filed elsewhere in the record of this case.
Dysart Loan and Mortgage on Manchester Court Residence
On August 30, 2002, Plaintiff Nell C. Dysart and Trustmark entered into a Fannie Mae/Freddie Mac uniform instrument that included a note in the amount of $210, 000.00, loan number XXXXXXXXXX secured by a mortgage on Dysart's personal residence on Manchester Court in the City of Vestavia Hills, Jefferson County, Alabama. That mortgage stated in relevant part:
15. Notices. All notices given by Borrower or Lender in connection with this Security Instrument must be in writing. Any notice to Borrower in connection with this Security Instrument shall be deemed to have been given to Borrower when mailed by first class mail or when actually delivered to Borrower's notice address if sent by other means....If any notice required by this Security Instrument is also required under Applicable Law, the Applicable Law requirement will satisfy the corresponding requirement under this Security Instrument.
18. Transfer of the Property or a Beneficial Interest in Borrower. As used in this Section 18, "Interest in the Property" means any legal or beneficial interest in the Property, including, but not limited to, those beneficial interests transferred in a bond for deed, contract for deed, installment sales contract or escrow agreement, the intent of which is the transfer of title by Borrower at a future date to a purchaser.
If all or part of the property or any Interest in the Property is sold or transferred (or if Borrower is not a natural person and a beneficial interest in Borrower is sold or transferred) without Lender's prior written consent, Lender may require immediate payment in full of all sums secured by this Security Instrument....
If Lender exercises this option, Lender shall give Borrower notice of acceleration. The notice shall provide a period of not less than 30 days from the date the notice is given in accordance with Section 15 within which Borrower must pay all sums secured by this Security Instrument. If Borrower fails to pay these sums prior to the expiration of this period, Lender may invoke any remedies permitted by this Security Instrument without further notice or demand on Borrower.
19. Borrower's Right to Reinstate After Acceleration. If Borrower meets certain conditions, Borrower shall have the right to have enforcement of this Security Instrument discontinued at any time prior to the earliest of: (a) five days before sale of the Property pursuant to any power of sale contained in this Security Instrument; (b) such other period as Applicable Law might specify for the termination of Borrower's right to reinstate; or (c) entry of a judgment enforcing this Security Instrument. Those conditions are that Borrower: (a) pays Lender all sums which then would be due under this Security Instrument and the Note as if no acceleration had occurred; (b) cures any default of any other covenants or agreements; (c) pays all expenses incurred in enforcing this Security Instrument, including, but not limited to, reasonable attorneys' fees, property inspection and valuation fees, and other fees incurred for the purpose of protecting Lender's interest in the Property and rights under this Security Instrument; and (d) takes such action as Lender may reasonably require to assure that Lender's interest in the Property and rights under this Security Instrument, and Borrower's obligation to pay the sums secured by this Security Instrument, shall continue unchanged. Lender may require that Borrower pay such reinstatement sums and expenses in one or more of the following forms, as selected by Lender: (a) case; (b) money order; (c) certified check, bank check, treasurer's check or cashier's check, provided any such check is drawn upon an institution reinstatement by Borrower, this Security Instrument and obligations secured hereby shall remain fully effective as if no acceleration had occurred....
22. Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration following Borrower's breach of any covenant or agreement in this Security Instrument (but not prior to acceleration under Section 18 unless Applicable Law provides otherwise). The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument and sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to bring a court action to assert the non-existence of a default or any other defense of Borrower to acceleration and sale. If the default is not cured on or before the date specified in the notice, Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may invoke the power of sale and any other remedies permitted by Applicable Law. Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this Section 22, including, but not limited to, reasonable attorneys' fees and costs of title evidence.
(Doc. 1-1, at 33-34 & 35).
Trustmark Loans to EMER
Trustmark also entered into other commercial loans to a family-owned underground utility company named Environmental Management and Emergency Response, Inc. ("EMER"), the company in which Nell Dysart held the position of Vice-President. The president of EMER, her son, Stuart Dysart, guaranteed one of those Trustmark loans, loan XXXXXXXXXX, but Nell Dysart did not personally do so. Both Stuart and Nell Dysart executed and guaranteed a separate loan, loan XXXXXXXXXX in the amount of $60, 175.00, but Nell Dysart refused to use her residence as collateral for that loan. These loans are not a part of this breach of contract action, but Trustmark was aware of these other loans as it made decisions on how to proceed on Dysart's mortgage.
Deficiencies in Loan Payments and Dysart's Chapter 7 Bankruptcy
In 2004, Dysart received a letter from Trustmark's attorney advising her that the note secured by the mortgage on her Manchester Court property was in default. Dysart attempted to make a late mortgage payment, which Trustmark did not accept because it did not cover all payments due with accrued interest and fees.
On April 27, 2004, Dysart filed for Chapter 7 bankruptcy relief. In that document, she listed the tax collector as creditor for the past due 2003 property taxes on her home. She also listed on the Bankruptcy schedule her debt on the Trustmark note, but not as an accelerated debt. Under the statement of intention, Dysart indicated that she planned to surrender her residence to Trustmark. Dysart testified that, despite her intention, Trustmark instead offered her an opportunity to reinstate her mortgage by curing the arrearage.
In May of 2004, the Jefferson County Tax Collector conducted a tax sale of Dysart's Manchester Court property, and Plymouth Park Tax Services, LLC was the purchaser. The record does not reflect that the tax collector received a lift of the bankruptcy stay prior to the sale. In a subsequent adversary proceeding in Bankruptcy Court, the bankruptcy judge entered an ...