May 1, 2015
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 Fargo's motion seeking permission
to conduct a new foreclosure sale. Smalls also requested that
the trial court enter an order confirming the foreclosure
sale that had been held on September 5, 2013, and requested
that the trial court certify the order as final pursuant to
Rule 54(b), Ala. R. Civ. P.
March 24, 2014, the trial court entered the confirmation
judgment confirming the September 5, 2013, foreclosure sale
and the validity of the foreclosure deed. The trial court
found that Smalls had waived the necessity of publishing a
fourth pre-foreclosure notice in the newspaper in her
November 6, 2013, filing. In the confirmation judgment, the
trial court incorporated the partial summary judgment entered
on June 26, 2013. The confirmation judgment expressly noted
that counterclaims of Wells Fargo remained pending. The
confirmation judgment was certified as final pursuant to Rule
54(b), Ala. R. Civ. P.
filed a timely notice of appeal to the supreme court, and the
supreme court transferred the appeal to this court pursuant
to § 12-2-7(6), Ala. Code 1975. On appeal, Smalls
challenges the propriety of the confirmation judgment. She
contends that the evidence did not establish that Wells Fargo
had a legal interest in the note and mortgage and that, as a
result, it did not establish that it had a right to foreclose
on the property.
the partial summary judgment and the confirmation judgment
state that Wells Fargo has claims against Smalls that remain
pending in the trial court. Although neither party addresses
the propriety of the trial court's certification of the
confirmation judgment as final pursuant to Rule 54(b), this
court is required to consider the issue of appellate
jurisdiction ex mero motu. Moore v. HSBC Mortg.
Servs., 75 So.3d 1188, 1190 (Ala.Civ.App. 2011) (citing
Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211
" [A] Rule 54(b) certification should not be entered if
the issues in the claim being certified and a claim that will
remain pending in the trial court '" are so closely
intertwined that separate adjudication would pose an
unreasonable risk of inconsistent results." '
Clarke-Mobile Counties Gas Dist. v. Prior Energy
Corp., 834 So.2d 88, 95 (Ala. 2002) (quoting Branch
v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373, 1374
Schlarb v. Lee, 955 So.2d 418, 419-20 (Ala. 2006).
request of this court, the parties addressed whether
unadjudicated claims actually remain pending in the trial
court. Wells Fargo acknowledged that it had asserted
alternative theories of relief by asserting a claim for
judicial foreclosure and by asserting additional claims
alleging breach of the note and unjust enrichment as well as
seeking an equitable mortgage. See Triple J Cattle, Inc.
v. Chambers, 551 So.2d 280, 282 (Ala. 1989) ( "
Upon a default by the mortgagor, the mortgagee has three
remedies, and he may pursue any one or all of them until the
debt is satisfied. He may sue for the debt, sue for the
property, and he may foreclose the mortgage ...." ).
" [A]lthough separate recoveries may be pursued under
the different remedies, the mortgagee may have only one
satisfaction of the debt. The satisfaction under one remedy
precludes satisfaction of the debt under the others."
Id. In its response, Wells Fargo stated that the
judicial foreclosure fully satisfied the debt owed by Smalls
and that the trial court's confirmation of the
foreclosure sale precluded recovery under Wells Fargo's
alternative claims. Wells Fargo states that the claims
remaining in the trial court are not viable if a judicial
foreclosure is authorized, i.e., that those claims are due to
be dismissed if the judgment is affirmed.
Therefore, the adjudication of Wells Fargo's remaining
claims does not pose an unreasonable risk of inconsistent
results. We conclude that, pursuant to Rule 54(b), the trial
court properly certified the confirmation judgment as final,
thereby allowing for appellate review.
Dismissal of Smalls's Claims Based on Canceled
first challenges certain aspects of the
nonjudicial-foreclosure sale that had been scheduled for
November 23, 2009. After the litigation began, Wells Fargo
stopped pursuing the nonjudicial-foreclosure proceedings,
rendering Smalls's claims on that issue moot. "
'" A case becomes moot if at any stage there ceases
to be an actual controversy between the parties."
'" Underwood v. Alabama State Bd. of Educ.,
39 So.3d 120, 127 (Ala. 2009) (quoting Chapman v.
Gooden, 974 So.2d 972, 983 (Ala. 2007), quoting in turn
Crawford v. State, 153 S.W.3d 497, 501 (Tex.App.
2004)). " This Court has often said that, as a general
rule, it will not decide questions after a decision has
become useless or moot." Arrington v. State,
422 So.2d 759, 760 (Ala. 1982) (citing Ex parte
McFry, 219 Ala. 492, 122 So. 641 (1929); Byrd v.
Sorrells, 265 Ala. 589, 93 So.2d 146 (1957); Chisolm
v. Crook, 272 Ala. 192, 130 So.2d 191 (1961); and
Jacobs Banking Co. v. Campbell, 406 So.2d 834 (Ala.
1981)). Accordingly, Smalls fails to establish that the
confirmation judgment should be reversed based on the
canceled nonjudicial-foreclosure sale.
Partial Summary Judgment Authorizing the
next challenges the partial summary judgment that granted
Wells Fargo the right to conduct a judicial foreclosure of
the property. We apply the following standard of review of
the trial court's partial summary judgment:
" This Court's review of a summary judgment is de
novo. Williams v. State Farm Mut. Auto. Ins. Co.,
886 So.2d 72, 74 (Ala. 2003). We apply the same standard of
review as the trial court applied. Specifically, we must
determine whether the movant has made a prima facie showing
that no genuine issue of material fact exists and that the
movant is entitled to a judgment as a matter of law. Rule
56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of
Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala. 2004).
In making such a determination, we must review the evidence
in the light most favorable to the nonmovant. Wilson v.
Brown, 496 So.2d 756, 758 (Ala. 1986). Once the movant
makes a prima facie showing that there is no genuine issue of
material fact, the burden then shifts to the nonmovant to
produce 'substantial evidence' as to the existence of
a genuine issue of material fact. Bass v. SouthTrust Bank
of Baldwin County, 538 So.2d 794, 797-98 (Ala. 1989);
Ala. Code 1975, § 12-21-12. '[S]ubstantial evidence
is evidence of such weight and quality that fair-minded
persons in the exercise of impartial judgment can reasonably
infer the existence of the fact sought to be proved.'
West v. Founders Life Assur. Co. of Fla., 547 So.2d
870, 871 (Ala. 1989)."
Dow v. Alabama Democratic Party, 897 So.2d 1035,
1038-39 (Ala. 2004).
on the materials submitted in support of and in opposition to
the motion for a summary judgment, the primary issue to be
resolved is whether Wells Fargo established that it had been
assigned the right to the payment under the note. An assignee
of a debt secured by a mortgage may execute the right to
foreclose. § 35-10-1 and § 35-10-12, Ala. Code
" 'The clear test of the right of an assignee of the
mortgage to exercise the power of sale under [§ 35-10-1,
Ala. Code 1975,] is that such assignee is entitled to receive
the money secured by the mortgage.'" Ex parte
GMAC Mort., LLC, [Ms. 1110547, Sept. 13, 2013] __ So.3d
__, __, 176 So.3d 845 (Ala. 2013) (quoting Kelly v.
Carmichael, 217 Ala. 534, 537, 117 So. 67, 70 (1928)).
" The Restatement (Third) of Property: Mortgages takes
the position that a note and mortgage can be separated but
that '[t]he mortgage becomes useless in the hands of one
who does not also hold the obligation because only the holder
of the obligation can foreclose.' Restatement (Third) of
Property: Mortgages § 5.4, Reporter's
Note--Introduction, cmt. a at 386. The Restatement explains:
'" The note is the cow and the mortgage the tail.
The cow can survive without a tail, but the tail cannot
survive without the cow." ' Id. at 387
(quoting Best Fertilizers of Arizona, Inc. v. Burns,
117 Ariz. 178, 179, 571 P.2d 675, 676 (Ct.App.), reversed on
other grounds, 116 Ariz. 492, 570 P.2d 179 (1977))."
Coleman v. BAC Servicing, 104 So.3d 195, 205
Evidence Regarding Wells Fargo as the Holder of the
Fargo asserts that the note was a negotiable instrument and
that it is a holder of the note entitled to foreclose under
" In Alabama, a note secured by a mortgage is a
negotiable instrument. Thomas v. Wells Fargo Bank,
N.A., 116 So.3d 226, 233 (Ala.Civ.App. 2012). A holder
of a note secured by a mortgage is entitled to enforce the
terms of the note. Perry v. Federal Nat'l Mortg.
Ass'n, 100 So.3d [1090,] 1094 [(Ala.Civ.App.
Sturdivant v. BAC Home Loan Servicing, LP, 159 So.3d
47, (Ala.Civ.App. 2013) (footnote omitted); see §
7-3-301, Ala. Code 1975 ( providing that a holder is a "
person entitled to enforce" the negotiable instrument).
The negotiable instrument must have been either issued or
negotiated to a person or an entity in order for the
transferee to become a holder. § 7-3-302, Ala. Code
1975; Stone v. Goldberg & Lewis, 6 Ala.App. 249,
259, 60 So. 744, 748 (1912) (opinion on rehearing) ("
[T]he instrument must be 'negotiated' to the holder
in order for the holder to be a 'holder in due
course.'" ). A negotiation requires a transfer of
possession and an indorsement by the holder if the instrument
is payable to an identified person or transfer by possession
only if the instrument is payable to bearer. §
7-3-201(b), Ala. Code 1975.
Fargo concedes that the record lacks evidence of an
indorsement of the note to Wells Fargo, and it does not claim
to have been issued the note. The copy of the note submitted
by Wells Fargo does not indicate that the note was payable to
bearer. Thus, the materials did not establish that Wells
Fargo was a holder of the note as a negotiable instrument.
Wells Fargo argues that the following provision of the note
allows it to enforce the terms of the note as a " Note
" [T]he Lender may transfer this Note. The Lender or
anyone who takes this Note by transfer and who is entitled to
receive payments under this Note is called the 'Note
materials submitted in support of the motion for a summary
judgment, Wells Fargo presented an affidavit contending that
it received the note as a result of a transfer from MERS on
January 4, 2010. However, the materials do not contain
evidence indicating that Wells Fargo is entitled
to receive payments under the note and, thus, is a "
Evidence Regarding Wells Fargo's Rights as a
Fargo argues that it was entitled to enforce the note and,
consequently, to execute a foreclosure on the property
through the assignment and transfer of the note from MERS.
" Ownership of a contractual obligation can generally be
transferred by a document of assignment; see Restatement,
Second, Contracts § 316. However, if the obligation is
embodied in a negotiable instrument, a transfer of the right
to enforce must be made by delivery of the instrument; see
U.C.C. § 3-203 (1995)."
Restatement (Third) of Property: Mortgages § 5.4, cmt. b
at 381 (1997); see Coleman v. BAC Servicing, 104
So.3d at 204 (discussing obtaining the right to enforce a
note and consequently the authority to foreclose on a
property through proper assignment or negotiation). Section
7-3-203(b) provides that " [t]ransfer of an instrument,
whether or not the transfer is a negotiation, vests in the
transferee any right of the transferor to enforce the
instrument, including any right as a holder in due course
...." Accordingly, in order for Wells Fargo, as the
transferee, to have the right to foreclose, the evidence must
establish that the transferor of the note -- MERS -- had that
" If the transferee is not a holder because the
transferor did not indorse, the transferee is nevertheless a
person entitled to enforce the instrument under Section 3-301
if the transferor was a holder at the time of transfer. ...
Because the transferee's rights are derivative of the
transferor's rights, those rights must be proved. Because
the transferee is not a holder, there is no presumption under
Section 3-308 that the transferee, by producing the
instrument, is entitled to payment."
Official Comment, § 7-3-203, Ala. Code 1975.
argues that the materials submitted by Wells Fargo failed to
establish that MERS had the authority to assign the rights in
the mortgage and the note, including the right to foreclose
on the property, to Wells Fargo. Wells Fargo did not
establish in its motion for a summary judgment that MERS was
a holder of the note as a negotiable
instrument. The evidence presented by Wells Fargo
also lacks a series of indorsements or assignments to
establish a line of transfers from the original mortgagee to
Wells Fargo. The evidence fails to clarify what legal
interest MERS possessed in the note and, consequently, the
legal interest in the note that Wells Fargo received from
MERS. Therefore, a genuine issue of material fact remains as
to whether Wells Fargo had the right to foreclose on the
property. Because the materials submitted by Wells Fargo did
not establish that there are no genuine issues of material
fact, the partial summary judgment could not have been
properly entered on Wells Fargo's claim seeking judicial
also raises the issue of Wells Fargo's standing to
maintain an action for judicial foreclosure of the property.
" 'Our supreme court has determined that standing
" implicates [a trial court's] subject-matter
jurisdiction." Ex parte
Howell Eng'g & Surveying, Inc., 981 So.2d 413,
418 (Ala. 2006); see also Hamm v. Norfolk Southern
Ry., 52 So.3d 484, 499 (Ala. 2010) (Lyons, J.,
concurring specially) (citing Riley v. Pate, 3 So.3d
835, 838 (Ala. 2008), and State v. Property at 2018
Rainbow Drive, 740 So.2d 1025, 1028 (Ala. 1999)). That
court has also explained that subject-matter jurisdiction
" concerns a court's power to decide certain types
of cases," Ex parte Seymour, 946 So.2d 536, 538
(Ala. 2006), which power is derived from the constitution and
statutes of Alabama. Id.'"
Ex parte BAC Home Loans Servicing, LP, 159 So.3d 31,
(Ala. 2013) (quoting Byrd v. MorEquity, Inc., 94
So.3d 378, 383 (Ala.Civ.App. 2012) (Pittman, J., concurring
in the rationale in part and concurring in the result)).
" Standing is properly limited to circumstances stemming
from lack of justiciability." Hamm v. Norfolk So.
Ry., 52 So.3d 484, 500 (Ala. 2010) (Lyons, J.,
'" '[W]hen standing is at issue, the court asks
whether the plaintiffs are the proper parties to bring the
action." '" ' Ex parte BAC Home Loans
Servicing, LP, 159 So.3d at (quoting Steele v.
Federal Nat'l Mortg. Ass'n, 69 So.3d 89, 91 n.2
(Ala. 2010), quoting in turn other cases).
" '" To be a [person with standing], the person
must have a real, tangible legal interest in the subject
matter of the lawsuit." Doremus v. Business Council
of Alabama Workers' Comp. Self-Insurers Fund, 686
So.2d 252, 253 (Ala. 1996). Specifically, " [s]tanding
... turns on 'whether the party has been injured in fact
and whether the injury is to a legally protected
right.'" Property at 2018 Rainbow Drive, 740 So.2d
[1025,] 1027 [(Ala. 1999)] (quoting Romer v. Board of
County Comm'rs of the County of Pueblo, 956 P.2d
566, 581 (Colo. 1998) (Kourlis, J., dissenting)).'"
Ex parte Simpson, 36 So.3d 15, 22-23 (Ala. 2009)
(quoting Ex parte Chemical Waste Mgmt., Inc., 929
So.2d 1007, 1010 (Ala. 2005)). Parties alleging an interest
in the property that is the subject of a foreclosure action
are proper parties to the action. Winter, Loeb & Co. v.
Montgomery Cooperage Co., 169 Ala. 628, 633, 53 So. 905,
906 (1910) (holding that parties seeking foreclosure of
property were proper parties even though the supreme court
concluded that the parties did not have an interest in the
argument that Wells Fargo lacks standing is based primarily
on Cadle Co. v. Shabani, 950 So.2d 277, 279 (Ala.
2006), and other cases that have held that a plaintiff in an
ejectment action lacks standing by failing to prove legal
title to the property at issue. In Ex parte BAC Home
Loans Servicing, however, our supreme court overruled
the holdings in those cases by determining that a fundamental
defect in a foreclosure proceeding does not deprive a party
of standing to seek an ejectment action. 159 __ So.3d at __.
The supreme court distinguished a lack of standing from a
failure to prove the elements of a claim. As with the
foreclosure deed in Ex parte BAC Loans Servicing, Wells Fargo
has presented documents indicating that it is the owner of
the note and the mortgage. Those documents are sufficient to
support its assertion of ownership of the debt secured by the
mortgage and to demonstrate that is has a legal interest in
the property for which it seeks judicial foreclosure. Wells
Fargo, therefore, is a proper party to the action. Any issue
of material fact as to Wells Fargo's ownership of the
note and mortgage does not deprive Wells Fargo of the right
to pursue the judicialforeclosure action.
reasons stated, we hold that sufficient evidence in the
Wells Fargo's right to pursue in the judicial-foreclosure
action; however, the evidence did not establish that there
was no genuine issue of material fact regarding whether Wells
Fargo had the right to foreclose on the property.
Accordingly, we reverse the confirmation judgment insofar as
it confirmed the judicial-foreclosure sale and insofar as it
incorporated the partial summary judgment authorizing the
judicial-foreclosure sale and dismissing Smalls's claim
for a declaratory ruling on Wells Fargo's right to
foreclose on the property. We affirm the confirmation
judgment insofar as it disposed of Smalls's claims for
injunctive relief and declaratory relief regarding the
canceled nonjudicial-foreclosure sale. We remand the cause to
the trial court for proceedings consistent with this opinion.
IN PART; REVERSED IN PART; AND REMANDED.
P.J., and Pittman and Moore, JJ., concur.
J., concurs in the result, without writing.
On July 2, 2013, Smalls filed a notice of
appeal as to the partial summary judgment. On July 16, 2013,
this court transferred that appeal to the supreme court,
which assigned the appeal case number 1121209. On August 14,
2013, the supreme court granted Wells Fargo's motion to
dismiss that appeal on the basis that it had been prematurely
filed. On September 13, 2013, Smalls filed in the supreme
court a " petition for extraordinary writs" (the
writs sought by Smalls are not specified in the record). On
September 24, 2013, the supreme court purported to dismiss
the appeal, which had previously been dismissed on August 14,
2013, and dismissed Smalls's petition, holding that each
We note that the copy of the note submitted
by Wells Fargo does not indicate that it was bearer paper.
See, e.g., Thomas v. Wells Fargo Bank, N.A., 116
So.3d 226, 235 (Ala.Civ.App. 2012) (holding possession of
negotiable instrument endorsed in blank established right to
foreclosure of property).