Charissa A. Smalls
Wells Fargo Bank, N.A
from Madison Circuit Court. (CV-09-001669).
A. Smalls, Appellant, Pro se.
Appellee: D. Keith Andress and Catherine Crosby Long of
Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C.,
Judge. Thompson, P.J., and Pittman and Moore, JJ., concur.
Thomas, J., concurs in the result, without writing.
A. Smalls appeals from a judgment (" the confirmation
judgment" ) entered by the Madison Circuit Court ("
the trial court" ) confirming the judicial-foreclosure
sale of real property in Madison County (" the
property" ) and incorporating a previously entered
partial summary judgment. Although the evidence in the record
is sufficient to establish that Wells Fargo Bank, N.A.,
(" Wells Fargo" ) had a right to assert a claim for
judicial foreclosure of the property, a genuine issue of
material fact remains as to Wells Fargo's right to
and Procedural History
and her spouse, Lloyd Harper, purchased the property in 1998.
To finance the purchase, Harper executed a promissory note
(" the note" ) in favor of Hamilton Mortgage
Corporation for a principal amount of $71,200 (" the
loan" ). Both Harper and Smalls executed a mortgage on
the property to secure the repayment of the loan. The
mortgage conferred the power of sale to the mortgagee and its
assigns, permitting a nonjudicial foreclosure sale in the
event of a default. In 2006, Smalls and Harper divorced.
Pursuant to an agreement between them, Harper transferred all
of his interest in the property to Smalls through a quitclaim
deed executed on July 12, 2006.
record shows that Wells Fargo began performing certain
services regarding the loan in December 2006, including
sending billing statements and collecting payments. Wells
Fargo sent a letter to Smalls dated August 16, 2009,
her that the loan was in default and of the need to cure the
default to avoid acceleration of the indebtedness. In a
letter dated October 7, 2009, Wells Fargo notified Smalls
that it had accelerated the remaining balance of the note and
that a nonjudicial foreclosure sale of the property was
scheduled for November 23, 2009.
sale apparently did not occur on the date specified in the
October 7, 2009, letter. On November 30, 2009, Smalls filed a
complaint in the trial court against Wells Fargo, alleging in
part that Wells Fargo did not have a legal interest in the
note or the mortgage and could not foreclose on the property.
Smalls also sought an injunction to cancel the foreclosure
sale of the property and a judgment declaring that Wells
Fargo lacked the legal right to pursue a foreclosure sale.
She also alleged that Wells Fargo's attempt to conduct a
foreclosure sale was legally defective. After the complaint
was filed, Wells Fargo did not pursue a nonjudicial
March 20, 2010, Wells Fargo filed an answer denying all of
Smalls's claims. Wells Fargo filed a third-party
complaint against Harper, asserting a claim of breach of the
note, and it asserted claims against both Harper and Smalls
seeking damages for unjust enrichment. Wells Fargo also
sought a judgment permitting a judicial foreclosure of the
property or, alternatively, granting it an equitable mortgage
in the property in the event the trial court invalidated the
mortgage. In its claim alleging a breach of the note, Wells
Fargo sought a judgment for the outstanding balance of the
note plus interest. In its claim alleging unjust enrichment,
Wells Fargo sought a judgment for the benefit received by
Smalls from occupying the property without paying the amount
due under the note. Harper did not participate in the
litigation, and Wells Fargo later dismissed its claims
April 9, 2013, Wells Fargo moved for a summary judgment
regarding Smalls's claims against it for injunctive and
declaratory relief and on its counterclaims seeking a
judicial-foreclosure sale of the property and damages for
unjust enrichment. In support of its motion, Wells Fargo
submitted an affidavit of Kimberly Mueggenberg, a vice
president of loan documentation at Wells Fargo. Mueggenberg
testified that Wells Fargo began providing services for the
loan on December 1, 2006, and that, subsequently, Smalls
failed to make required payments on the note. She testified
regarding Smalls's failure to cure the default and Wells
Fargo's notification letters to Smalls regarding the
unpaid debt and foreclosure proceedings. Regarding the note
and the mortgage, Mueggenberg testified as follows:
" In preparation to begin foreclosure proceedings, Wells
Fargo was assigned the Note and Mortgage on June 16, 2009.
... Wells Fargo then received possession of the Note and
Mortgage on January 4, 2010."
testified that she based the affidavit on her personal
knowledge after a review of documents maintained by Wells
Fargo pertaining to the loan.
support of its motion for a summary judgment, Wells Fargo
also submitted the note, the mortgage, the notification
letters, and documentation of the assignment from Mortgage
Electronic Registration Systems, Inc. (" MERS" ),
to Wells Fargo of the " Mortgage together with the note
and indebtedness secured by the Mortgage, and all interest of
the undersigned in and to the property described in said
Mortgage." Those materials show that the original
mortgagee was Hamilton Mortgage Corporation. The note
contains two indorsements. The first is stamped "
Recourse, Pay to the order of Chiles & Company" and
appears to be signed by a representative of Hamilton Mortgage
Corporation. The second indorsement is stamped " Pay to
the order of Trustcorp Mortgage Company Without
Recourse" and is signed by a representative of First
State Bank Moulton, presumably under a power of attorney on
the behalf of " Chiles & Company, Inc." In
addition, the record contains a document purporting to assign
the mortgage and the note from Charles F. Curry Company to
MERS. There is no indication in the record of how Charles F.
Curry Company obtained rights to the mortgage and the note.
filed a response opposing the motion for a summary judgment,
contending that Wells Fargo did not have the authority to
foreclose on the property because it was not entitled to
payments for the debt secured by the note. Smalls argued that
the evidence submitted by Wells Fargo failed to establish a
sufficient indorsement of the note to Wells Fargo, the
authority of MERS to assign the mortgage to Wells Fargo,
and/or that Wells Fargo was a holder of the note. Among other
documents, Smalls submitted copies of checks she paid to
" Washington Mutual Bank N.A." toward the debt due
under the note and an insurance policy on the property dated
May 9, 2007, that listed " Washington Mutual Bank
FA" as the mortgagee.
hearing, the trial court entered a partial summary judgment
on June 26, 2013, in favor of Wells Fargo, dismissing all of
Smalls's claims with prejudice and authorizing a
judicial-foreclosure sale. The trial court ordered Wells
Fargo to provide public notice of the sale through
publication in a newspaper for four consecutive weeks and to
submit a report of the foreclosure and copy of the
foreclosure deed to the court after the sale. The partial
summary judgment also stated that Wells Fargo's "
counterclaims remain pending including any additional claims
that may be necessary to secure possession of the property
following the foreclosure sale." 
28, 2013, Smalls filed a motion to dismiss Wells Fargo's
judicial-foreclosure action based on a lack of standing. On
July 3, 2013, the trial court denied that motion. On
September 5, 2013, Wells Fargo conducted a foreclosure sale
of the property, and on September 12, 2013, it executed a
foreclosure deed that was subsequently recorded in the
Madison County Probate Office.
October 29, 2013, Wells Fargo filed with the trial court a
report on the foreclosure sale that had occurred on September
5, 2013, and a copy of the foreclosure deed. Wells Fargo also
moved, however, for permission to conduct a new foreclosure
sale. Wells Fargo asserted that, due to a clerical error,
notice of the sale had been published for only three
consecutive weeks before the foreclosure sale instead of the
four consecutive weeks required by the trial court's
partial summary judgment. On November 6, 2013, Smalls filed
an opposition to Wells ...