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Devine v. Bank Of New York Mellon Corp.

Supreme Court of Alabama

November 22, 2019

Patricia DEVINE
v.
The BANK OF NEW YORK MELLON CORPORATION

         Appeal from Baldwin Circuit Court (CV-17-901237)

Page 841

          Franklin H. Eaton, Jr., Orange Beach, for appellant.

          Marc James Ayers, Anna-Katherine Bowman, J. Jackson Hill IV and Stephen C. Parsley of Bradley Arant Boult Cummings LLP, Birmingham, for appellee.

         MITCHELL, Justice.

         Patricia 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.

         Facts and Procedural History

         In 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.

         In 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.

         At some 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

Page 842

Kruse, who has continuously resided on the Elberta property since that time.

         In 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.

         After 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 ...


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