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Kim v. Wells Fargo Bank, N.A.

United States District Court, S.D. Alabama

April 1, 2019

SUNG CHUL KIM, Plaintiff,
v.
WELLS FARGO BANK, N.A., AS TRUSTEE FOR OPTION ONE MORTGAGE LOAN TRUST 2006-1 ASSET-BACKED CERTIFICATES, SERIES 2006-1, Defendant.

          GEORGE C. GASTON (BPR # 35490) GALLOWAY, JOHNSON, TOMPKINS, BURR & SMITH Counsel for Plaintiff Sung Chul Kim

          CHRISTOPHER A. BOTTCHER JESSICA B. SPADE McGlinchey Stafford Counsel for Wells Fargo Bank, N.A., as Trustee for Option One Mortgage Loan Trust 2006-1 Asset-Backed Certificates, Series 2006-1

          ORDER OF CONSENT JUDGMENT

          KRISTI K. DUBOSE UNITED STATES DISTRICT JUDGE

         THIS HONORABLE COURT , having reviewed and taken judicial notice of the pleadings herein, and being advised by respective counsel for each of Plaintiff Sung Chul Kim and Defendant Wells Fargo Bank, N.A., as Trustee for Option One Mortgage Loan Trust 2006-1 Asset-Backed Certificates, Series 2006-1 (“Wells Fargo”) (collectively the “Parties”) that the Parties have agreed to the terms set forth herein, hereby enters Judgment against said Wells Fargo as follows:

         1. This Court has 28 U.S.C. § 1332 diversity of citizenship jurisdiction over the parties hereto and the subject matter hereof, and venue in this Court is appropriate, because this action affects title to real estate which has a mailing address of 606 West Canal Drive, Gulf Shores, Alabama 36542, and which is situated entirely within Baldwin County, Alabama, to wit:

Lots 102 and 103, according to the Survey of Canal Division of Gulf Shores, as recorded in Map Book 3, Pages 12 and 13, in the Office of the Judge of Probate of Baldwin County, Alabama.

         (the “Property”).

         2. On or about September 30, 2005, Carl A. Olsen and Darlene A. Olsen, then owners of the Property, granted a mortgage against the Property, in the amount of $280, 000.00, and in favor of Option One Mortgage Corporation (the “Prior Mortgage”), which said mortgage was recorded on October 7, 2005, as Instrument no. 928284 in the records of the Office of the Probate Judge of Baldwin County, Alabama.

         3. On or about August 26, 2008, Option One Mortgage Corporation, through its auctioneer Scott J. Humphrey, conducted a foreclosure sale of the Property secured by the Prior Mortgage. As a result of the foreclosure sale, the Property was purportedly conveyed via Foreclosure Deed (the “Foreclosure Deed”) to Wells Fargo. The Foreclosure Deed was recorded approximately one month after the foreclosure sale, on September 22, 2008, as Instrument no. 1139685 in the records of the Office of the Probate Judge of Baldwin County, Alabama.

         4. Meanwhile, on or about September 8, 2008, Carl A. Olsen and Darlene A. Olsen conveyed the Property to Christopher G. Steele via that certain Warranty Deed, which said deed was recorded on September 9, 2008, as Instrument no. 1137149 in the records of the Office of the Probate Judge of Baldwin County, Alabama. The funds Christopher G. Steele paid to Carl A. Olsen and Darlene A. Olsen to acquire the Property were primarily used to pay off the Olsens' debt, which had been secured by the Prior Mortgage.

         5. On or about November 6, 2008, American Home Mortgage Servicing, Inc. as successor in interest to Option One Mortgage Corporation, executed that certain Mortgage Release, Satisfaction, and Discharge (the “Prior Mortgage Release”), which was recorded on November 10, 2018, as Instrument no. 1148809 in the records of the Office of the Probate Judge of Baldwin County, Alabama.

         6. On or about June 13, 2017, Christopher S. Steele conveyed the Property to Plaintiff via that certain Warranty Deed (“Plaintiff's Vesting Deed”), which was recorded on June 15, 2017, as Instrument no. 1638619 in the records of the Office of the Probate Judge of Baldwin County, Alabama.

         7. Wells Fargo acknowledges the Prior Mortgage has been paid in full, resulting in the proper recording of the Prior Mortgage Release in the land records. Wells Fargo further acknowledges that through inadvertence and/or mistake, the Foreclosure Deed was also recorded in the land records.

         8. Wells Fargo has no objection to the relief sought by Plaintiff and ...


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