from Baldwin Circuit Court (CV-17-901237)
Devine filed an action seeking to invalidate a foreclosure
sale that divested her interest in a property located in
Elberta. The trial court entered a summary judgment against
Patricia, from which she now appeals. We affirm.
and Procedural History
January 2007, Patricia's husband Jerry Devine executed a
promissory note ("the note") in favor of Taylor,
Bean & Whitaker Mortgage Corp. ("TBW"),
evidencing a debt for $744, 000. That note was secured by a
mortgage on the Devines' residence in Elberta ("the
Elberta property"), and both Jerry and Patricia signed
the mortgage documents.
August 2009, TBW declared bankruptcy and commenced
liquidation proceedings. In July 2010, TBW sold assets,
including the note executed by Jerry, to The Bank of New York
Mellon Corporation, as trustee for TBW Mortgage Pass-Through
Certificates, Series 2007-1 ("BNYM"). It is
undisputed, however, that Mortgage Electronic Registration
Systems, Inc., the nominal mortgagee, did not reassign the
Devines' mortgage to BNYM until February 2011.
point Jerry defaulted on the note, and in January 2011 BNYM
foreclosed on the Elberta property. BNYM was the highest
bidder at the foreclosure sale, and in March 2011 it brought
an ejectment action against the Devines seeking to take
possession of the Elberta property. While that action was
pending, Jerry died. Patricia filed a notice with the court
informing it of Jerry's death and that she no longer
resided at the Elberta property, but she never formally
answered the complaint. In May 2011, a default judgment was
entered in favor of BNYM, and in December 2011 BNYM sold the
Elberta property to Tracy Kruse, who has continuously resided
on the Elberta property since that time.
October 2017, Patricia filed a nine-count complaint against
BNYM and Kruse seeking ownership and possession of the
Elberta property and compensation for various torts she
alleged BNYM had committed. Before filing an answer, BNYM
moved the trial court to dismiss Patricia's complaint,
arguing, among other things, that Patricia's claims were
all barred by the applicable statutes of limitations.
Patricia thereafter agreed to the dismissal of all of her
claims except the illegal-foreclosure and quiet-title claims.
The thrust of those remaining claims was that Patricia was
entitled to ownership and possession of the Elberta property
because, she alleged, BNYM had not been assigned the mortgage
at the time of the January 2011 foreclosure sale.
BNYM and Kruse submitted answers denying Patricia's
claims, all parties filed motions for a summary judgment. The
trial court denied those motions. BNYM moved the trial court
to reconsider, arguing:
"[Patricia] has two counts remaining against [BNYM] --
illegal/void foreclosure and quiet title. [BNYM's]
[summary-judgment] motion demonstrated both res judicata and
statute-of-limitations grounds that bar [Patricia's]
illegal/void foreclosure claim. These are purely legal
arguments that do not depend on any issues of fact. As for
[Patricia's] quiet title action, she does not contest
that she no longer possesses the subject property.
[BNYM's] motion showed that [Patricia's] failure to
be in actual, peaceable possession of the [Elberta] property
dooms her quiet-title claim. Taken together, [BNYM] presented
both legal and undisputed factual arguments that were ripe
for summary judgment. Additional discovery will not undercut
or otherwise affect these arguments."
filed a similar motion, and the trial court thereafter held a
hearing to consider the parties' arguments. On June 13,
2018, the trial court entered an order vacating its previous
orders denying BNYM's and Kruse's motions for a
summary judgment and granting those motions. The trial court
explained in its June 13 order that Patricia's
illegal-foreclosure claim failed because BNYM was the holder
of the note at the time of the foreclosure sale and that
possession entitled it to foreclose on the Elberta property.
The trial court further noted that, in any event, the
illegal-foreclosure claim was barred by the statute of
limitations and the doctrine of res judicata. Finally, the
trial court held that Patricia could not prevail on her
quiet-title claim because she undisputedly was not in
possession of the property. After her postjudgment motion was
denied, Patricia filed her notice of appeal to this Court.
appeal, Patricia challenges the summary judgment entered
against her on the illegal-foreclosure claim. She does not
address the summary judgment entered against her on her
quiet-title claim and has not made Kruse a party to this
appeal. Thus, the only issue before this Court is whether the
summary judgment in favor of BNYM and against Patricia on the
illegal-foreclosure claim was proper.
Nationwide Property & Casualty Insurance Co. v.
DPFArchitects, P.C., 792 So.2d 369, 372 (Ala.
2000), this Court stated that, when a party "appeals
from a summary judgment, our review is de novo." The
Nationwide Court ...