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McLeod v. Field Asset Services, LLC

United States District Court, S.D. Alabama, Southern Division

January 23, 2017

DANA M. MCLEOD, Plaintiff,
v.
FIELD ASSET SERVICES, LLC, Defendant.

          ORDER

          KRISTI K. DuBOSE UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Defendant Field Asset Services, LLC's motion for summary judgment (Doc. 23), Plaintiff Dana M. McLeod's Response (Doc. 29) and Defendant's Reply (Doc. 32); and Plaintiff's motion to strike (Doc. 28) and Defendant's Response (Doc. 31).[1]

         I. Findings of Fact[2]

         This case concerns a dispute regarding Plaintiff Dana McLeod (McLeod)'s real property located at 14461 State Highway 104, Silverhill, Alabama, 36576. Specifically, on January 26, 2010, McLeod executed a $165, 306.00 mortgage with PHH Mortgage Corporation (PHH) (formerly a defendant in this case). (Doc. 23-1 at 1-20). At some point, McLeod failed to make her mortgage payments and defaulted on the loan. (Doc. 1 at 2-3). PHH foreclosed on the property and on September 17, 2015 held a nonjudicial foreclosure sale where the property sold for $157, 925.66. (Id.; Doc. 23-1 at 22).

         In conjunction with the foreclosure, PHH retained Defendant Field Asset Services, LLC (FAS) to secure and maintain McLeod's real property. FAS subsequently retained a local contractor, Rowe Enterprises, Inc. (Rowe) to photograph the property, investigate the premises, replace broken deck planks, mow the grass, make repairs, etc. (Docs. 23-1 at 25-50).

         On November 17, 2015, McLeod initiated this action by filing a complaint against PHH in the Circuit Court of Baldwin County, Alabama. (Doc. 1). McLeod's claims as to PHH surrounded the rights, duties and liabilities of the parties under the mortgage and the servicing of her loan and foreclosure of the property - redemption, to set aside the foreclosure, damages, etc. (Id.) On December 18, 2015, PHH removed the state court action to this Court. (Id.) On April 21, 2016, McLeod amended her complaint to add FAS as a party, asserting two (2) claims against it for destruction of property/negligence (Count Five) and willful and wanton destruction of property (Count Six). (Doc. 13). On December 2, 2016, FAS moved for summary judgment on those counts. (Doc. 23). On December 6, 2016, all of McLeod's claims against PHH were dismissed with prejudice. (Doc. 26). Only McLeod's claims against FAS remain.

         II. Motion to Strike

         At the outset, McLeod moves to strike the legal grounds/basis for FAS' motion related to the issues of vicarious liability (for non-party Rowe) and Section 6-5-253 Ala. Code (diminished value of property), contending that such have been improperly raised by FAS for the first time on summary judgment. As to vicarious liability, McLeod contends that FAS did not provide proper notice of Rowe being the individual/party responsible for the property damage (rather than FAS). However, the record reveals that FAS provided sufficient notice of its assertion of another person or other party being responsible for any alleged property damage, rather than FAS, via the affirmative defenses asserted in its Answer:

12. Defendant states that the sole proximate cause of the damages allegedly sustained by the Plaintiff were the actions, non-actions, or negligence of a person or persons other than Defendant, for whose actions, non-actions, or negligence this Defendant is in no way liable.
13. Defendant states that the sole proximate cause of the damages allegedly sustained by the Plaintiff were the combination of actions, non-actions or negligence of a person or persons other than this Defendant, for whose actions, non-actions or negligence this Defendant is in no way liable.
14. Defendant denies that it is legally responsible for or liable to the Plaintiff for the acts or omissions of any Co-Defendant.
26. Defendant denies any liability on the basis of agency and/or respondeat superior for those acts or omissions alleged in the complaint.
28. Plaintiff's alleged injuries were caused by acts or omissions of parties other than this Defendant.
33. This Defendant did not commit any wrongful acts relative to Plaintiff or Plaintiff's property.
34. Defendant pleads failure to join necessary parties to this matter.

(Doc. 17 at ¶¶12-14, 26, 28, 33-34). McLeod thus received notice of “another” being responsible, and as such, should have conducted discovery on this defense to ascertain the existence of non-party Rowe, but failed to do so.

         As to Section 6-5-253, the contention is irrelevant as there are no redemption counts asserted against FAS. Additionally, due to the Court's findings set forth below, the issue is moot for purposes of summary judgment.

         Moreover, McLeod moves to strike FAS' exhibits C, D and E under Rule 56(c)(2). (Docs. 23-1 at 25-50, 57-58). Motions to strike material submitted on summary judgment have not been appropriate since December 2010. Instead, per Rule 56(c)(2), “[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 that:

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 ...

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