OneWest Bank, N.A. v. Andrews et al

Filing 37

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 6/23/2016. (JLC)

FILED
2016 Jun-23 PM 02:30
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CIT BANK, N.A.,
Plaintiff,
v.
LAVERT ANDREWS as
PERSONAL REPRESENTATIVE
OF THE ESTATE OF CAROL J.
POE, JOSEPH KING III, and
PAMELA BASS,
Defendants.

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) Case No.: 2:15-CV-0091-VEH
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MEMORANDUM OPINION
This action is a collateral attack on a judgment, entered in the Circuit Court of
Jefferson County, Alabama, that purported to void certain mortgages—including one
held by Plaintiff CIT Bank, N.A. (“CIT”), formerly known as OneWest Bank, N.A.,
(“OneWest”). Now pending before the court is CIT’s motion for partial summary
judgment on its action for declaratory judgment and claim for ejectment against
Defendants Joseph King, III (“King”), Lavert Andrews, as personal representative of
the Estate of Carol J. Poe (“Poe”), and Pamela Bass (“Bass”). The motion is now ripe
for decision, and the motion for partial summary judgment will be GRANTED.

I
The court’s uniform initial order provides the requirements for summary
judgment briefs, including the manner of stating facts. (See doc. 2 at 16–19). Relevant
here, the moving party is required to set out in separately numbered paragraphs the
allegedly undisputed facts in the case. The non-moving party is then required to state
whether it disputes the moving party’s facts. The non-moving party may then set out
its statement of allegedly undisputed facts. Finally, in the moving party’s reply brief,
it should describe its disputes with the non-moving party’s statement of facts. The
failure to respond to a fact set out in a party’s statement of facts results in that fact
being deemed admitted.
CIT, the moving party, alleged the following facts in its motion for summary
judgment, doc. 33. Because Defendants ignored CIT’s facts in their response brief,
doc. 34, CIT’s facts are deemed admitted:
A.

The Property, Forged Deeds, and Mortgage:

1.

On June 2, 2005, Joseph King III ("King") and Carol
J. Poe ("Poe") acquired the real estate located at
2004 26th Street, Birmingham, Alabama (the
"Property") as joint tenants with right of
survivorship. The legal description of the Property
is as follows:
Lot 12 and a strip of land 5 feet wide off the Eastern
side of Lot 11, in Block 8, as shown and designated
2

in Corrected Map of Ensley Highlands Company,
which map is recorded in Map Book 9, Page 20, of
map records in the Probate Office of Jefferson
County, Alabama, said Lot 12 and 5 feet of the
Eastern side of Lot 11, together forming a rectangle
fronting 55 feet on the Northern side of 26th Place,
now known as 26th Street and extending back
Northward of uniform width 140 feet to an alley.
A true and correct copy of the June 2, 2005 deed is
attached hereto as Exhibit "1".
2.

On December 31, 2007, Poe purportedly deeded her
undivided one-half interest in the Property to King.
A true and correct copy of the December 31, 2007
deed, as recorded in the Jefferson County Probate
Court on January 9, 2008, is attached hereto as
Exhibit "2".

3.

On January 9, 2008, Poe purportedly executed a
second deed which again conveyed to King her
one-half interest in the Property. A handwritten note
at the top of this second deed states that it was
"[r]e-recorded to correct notary acknowledgement
and legal." A true and correct copy of this
"corrective" deed, as recorded in the Jefferson
County Probate Court on January 10, 2008, is
attached as Exhibit "3". Exhibits "2" and "3" are
collectively referred to as the "Forged Deeds."

4.

On January 18, 2008, King, as the purported sole
owner of the Property, executed a promissory note
(the "Note") and mortgage (the "Mortgage") in favor
of Financial Freedom Senior Funding Corporation,
a subsidiary of IndyMac Bank, F.S.B. ("FFSFC") to
secure a reverse mortgage loan on the Property in
the principal amount of $262,500.00. See Exhibit
3

"4", Affidavit of Dion Kala ("Affidavit") at ¶ 5 and
Exhibits "A" and "B" thereto.
5.

On January 18, 2008, King also executed a second
mortgage on the Property in favor of the Secretary of
Housing and Urban Development (the “HUD
Mortgage”). See id. at ¶ 6 and Exhibit "C" thereto.

6.

Pursuant to the terms of the Note and the Mortgage,
FFSFC disbursed $102,526.75 to King (or on his
behalf) on or about January 18, 2008, at the closing.
See id. at ¶ 7, and Exhibit "D" thereto.

7.

On or about March 19, 2009, OneWest Bank, FSB
acquired the rights to the Mortgage as part of a
transaction by which OneWest acquired certain
assets and banking operations of IndyMac Federal
Bank, FSB from the Federal Deposit Insurance
Corporation. See id. at ¶ 8.

8.

In February 2014, the Office of the Comptroller of
the Currency (“OCC”) approved the conversion of
OneWest Bank, FSB to a national bank known as
OneWest Bank N.A. See id. at ¶ 9. OneWest Bank,
FSB and OneWest Bank N.A. are referred to
collectively hereinafter as “OneWest.”

B.

The State Court Lawsuit:

9.

On June 25, 2009, Poe filed a lawsuit against King
in the Circuit Court of Jefferson County, Alabama,
CV-09-902034 (the "State Court Lawsuit"),
claiming that King had forged her name to the
aforementioned Forged Deeds that purported to
convey her interest in the Property to King. A true
and correct copy of Poe’s Complaint against King in
the State Court Lawsuit is attached hereto as Exhibit
4

"5".
10.

Neither FFSFC nor OneWest were ever named as
parties to the State Court Lawsuit. See Affidavit at ¶
14; see also Exhibit "6", Alacourt Case Summary
Docket in the State Court Lawsuit.

11.

On January 19, 2012, the State Court entered an
order finding that King had indeed forged Poe’s
name on the Forged Deeds. This Order provided,
among other things, that the Forged Deeds were
"void" and that Poe’s "interest, right and title as a
joint tenant with the right of survivorship to the
property located at 2004 26th Street, Ensley,
Alabama is hereby restored." A true and correct
copy of the State Court’s January 19, 2012, Order is
attached hereto as Exhibit "7".

12.

Poe passed away on May 2, 2012. A true and correct
copy of Poe’s death certificate it attached hereto as
Exhibit "8".

13.

On September 18, 2012, the State Court entered an
order declaring, among other things, that the
Mortgage and the HUD Mortgage were "absolutely
void" simply because the Forged Deeds were
declared void. A true and correct copy of the State
Court’s September 18, 2012 Order is attached hereto
as Exhibit "9".

14.

On February 11, 2013, King signed a quitclaim deed
conveying his interest in the Property to the Estate.
A true and correct copy of the February 11, 2013
deed from King to the Estate, as recorded in the
Jefferson County Probate Court on February 15,
2013, is attached hereto as Exhibit "10".

5

C.

The Foreclosure Sale:

15.

OneWest held a foreclosure sale on the Property on
February 14, 2014. See Affidavit at ¶ 11. Federal
National Mortgage Association (“Fannie Mae”)
purchased the Property at the foreclosure sale for
$115,000. See id. at ¶ 12 and Exhibit "E" thereto. On
December 4, 2014, Fannie Mae deeded the Property
to OneWest. See id. at ¶ 10, and Exhibit "F" thereto.

16.

Effective August 3, 2015, OneWest merged with and
into CIT Bank, N.A. See id. at ¶ 10.

D.

Occupancy of the Property

17.

Defendant Lavert Andrews entered upon the
Property approximately three years ago and he
continues to occupy and remain on the Property. See
Doc. 30, Defendant’s Response Brief, at p. 7
(“Currently the property is being occupied by the
sole heir at law.”); see also Exhibit “12”, Affidavit
of M. Golston.

The Defendants alleged the following facts, which CIT ignored in its reply
brief. Accordingly, Defendants’ facts are also deemed admitted as follows:
1.

2.

1

On June 2, 2005, Carol Poe ("Poe") and Joseph
King, III ("King") purchased real property located at
2004 26th St., Birmingham, Alabama (the "Property)
as joint tenants with right of survivorship; and
That the deed to the Property was signed on June 2,
2005 and recorded June1 in the probate court of

So in original. Defendants likely intended to say “it,” rather than “June.”
6

Jefferson County on June 20, 2015;2 and (Attached
as Defendant's Exhibit A: Original Deed.)
3.

That on December 31, 2007 King, by fraud, deceit
and misrepresentation of facts, forged the name of
Poe to the said deed and caused the same to be
recorded in the Probate Court of Jefferson County
on January 9, 2008; and (Attached as Defendant's
Exhibit B: 1st Fraudulent Deed.)

4.

That on January 9, 20[08]3 King, by fraud, deceit
and misrepresentation of facts, forged the name of
Poe to a second deed and caused the same to be
recorded in the Probate Court of Jefferson County
on January 10, 2008; and (Attached as Defendant's
Exhibit C: 2nd Fraudulent Deed.)

5.

That on January 18, 2008, King, fraudulently
purporting to be the sole owner of the Property,
executed a promissory note ("Note") and mortgage
(the "Mortgage") in favor of Financial Freedom
Senior Funding Corporation, a subsidiary of Indy
Mac Bank, FSB ("FFSFC") to secure a reverse
mortgage loan on the Property; and (Attached as
Defendant's Exhibit D: Reverse Mortgage)

6.

That on January 18, 2008, King, by fraud and deceit,
executed a second mortgage, January 25, 2008, on
the Property in favor of Secretary of Housing and
Urban Development (the "HUD Mortgage"); and

2

So in original, but the court supposes the date should read “June 20, 2005.” Either way,
the deed does not appear to indicate on what date it was filed—contrary to Defendants’
suggestion.
3

The original says “January 9, 2015" as the date on which King forged Poe’s name to the
second fraudulent deed. An examination of Defendants’ Exhibit C reveals the true date to be
January 9, 2008.
7

(Attached as Defendant's Exhibit E:2nd Mortgage)
7.

That on June 25, 2009, Poe filed a state court action
in the Circuit Court of Jefferson County
("CV-09-902034"); and (Attached as Defendant's
Exhibit F: State Court Action Complaint)

8.

That on September 24, 2009, FFSFC assigned the
mortgage to Mortgage Electronic Registration
Systems, Inc. "MERS" and the said assignment was
recorded in the probate court of Jefferson County on
October 2, 2009; and (Attached as Defendant's
Exhibit G: Assignment of Mortgage to MERS)

9.

That on January 12, 2010, Poe, through, counsel,
provided notice to FFSFC of the pending litigation
in State Court; and (Attached as Defendant's Exhibit
H: Notice of Litigation)

10.

That on September 7, 2010, King filed for Chapter
7 bankruptcy protection (BK-10-5371-TBB) that
was dismissed without a discharge on September 22,
2009; and

11.

That on March 31, 2011, King filed a second
petition for Chapter 7 bankruptcy protection
(BK-11-1767-TBB); and (Attached as Defendant's
Exhibit I: Notice of BK Filing)

12.

That King listed FFSFC as a debt owed in the
bankruptcy filing; and (Attached as Defendant's
Exhibit J: List of Creditors)

13.

That King listed the pending State Court action in
his Statement of Financial Affairs in the Bankruptcy
filing which the Clerk of Bankruptcy Court purports
to have provided notice to the FFSFC; and (Attached
8

as Defendant's Exhibit K: Statement of Financial
Affairs)
14.

That on June 24, 2011, Poe filed an Adversarial
Proceeding against King in BK-11-1767-TBB
objecting to a discharge on the grounds of fraud; and

15.

That on October 3, 2011, Poe, through, counsel,
provided notice to FFSFC of the pending litigation
in State Court; and (Attached as Defendant's Exhibit
L: October 3, 2011 Notice to FFSFC)

16.

That on June 9, 2012, Poe, through counsel,
provided notice to FFSFC to counsel representing
FFSFC; and (Attached as Defendant's Exhibit M:
June 9, 2012 Notice)

17.

That on January 19, 2012, The State Court found
that the deeds executed by King were forged by
King and that the deeds were "void". Further the
State Court ordered Poe's interest in the Property
restored; and (Attached as Defendant's Exhibit N:
Circuit Court Judge Tom King Order 1.19.12)

18.

That on May 2, 2012, Poe became deceased; and

19.

That on September 12, 2012, Poe, through counsel,
notified counsel for FFSFC, of a proposed order that
was to be submitted to the court; and (Attached as
Defendant's Exhibit O: Notice to FFSFC)

20.

That on September 18, 2012, the State Court entered
an order voiding the fraudulent deeds and the
FFSFC mortgage forged by King; and (Attached as
Defendant's Exhibit P: Circuit Court Judge Tom
King Order 9-18-12)

9

21.

That since Defendant King was ejected from the
property at issue, Defendant Lavert Andrews has
been in the exclusive use and possession of the
property at issue; and (Attached as Defendant's
Exhibit Q: Affidavit of Andrews)

22.

That on February 11, 2013, King conveyed, via
deed, his interest to the Defendant Estate of Carol J.
Poe "Estate"; and (Attached as Defendant's Exhibit
Q1: Quit Claim and Affidavit of Andrews)

23.

That on December 4, 2013, MERS assigned the
mortgage to One West Bank; and(Attached as
Defendant's Exhibit R: Mortgage Assignment)

24.

That on December 16, 2013 One West Bank
recorded the mortgage assignment from MERS; and

25.

That on February 14, 2014, One West Bank
foreclosed on the Property; and (Attached as
Defendant's Exhibit S: Reverse Foreclosure Deed)

26.

That on February 24, 2014, One West Bank, through
its counsel (Sirote & Permutt) recorded the
foreclosure deed in the probate court of Jefferson
County; and

27.

That on January 20, 2015, Plaintiff filed the
complaint against the named defendants that remains
pending before this court.
II

Under Federal Rule of Civil Procedure 56, summary judgment is proper if there
is no genuine dispute as to any material fact and the moving party is entitled to

10

judgment as a matter of law. FED. R. CIV. P. 56(a); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986) (“[S]ummary judgment is proper if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.”) (internal quotation
marks omitted).4 The party requesting summary judgment always bears the initial
responsibility of informing the court of the basis for its motion and identifying those
portions of the pleadings or filings that it believes demonstrate the absence of a
genuine issue of material fact. Celotex, 477 U.S. at 323. Once the moving party has
met its burden, Rule 56(e) requires the non-moving party to go beyond the pleadings
in answering the movant. Id. at 324.
III-A
The nub of this motion for summary judgment is CIT’s request for a
declaratory judgment that it is the sole owner of the Property and ejecting Lavert
Andrews from it. Because CIT’s right to the property depends upon the validity of
King’s mortgage, and because a state court judgment (the “September 2012
4

Congress amended Rule 56 in 2007 in conjunction with a general overhaul of the
Federal Rules of Civil Procedure. The Advisory Committee was careful to note, however, that
the changes “are intended to be stylistic only.” Fed. R. Civ. P. 56, Advisory Committee Notes,
2007 Amendments (emphasis added). Consequently, cases interpreting the previous version of
Rule 56 are equally applicable to the revised version. E.g., Wooten v. Walley, No. 2:07-CV-701WKW[WO], 2008 WL 4217262, at *2 n.5 (M.D. Ala. Sep. 12, 2008).
11

Judgment”) purported to void the mortgage, the credit this court owes to the
September 2012 Judgment is critical to the resolution of this case.
The general rule is that state court judgments “have the same full faith and
credit in every court within the United States . . . as they have by law or usage in the
courts of such State . . . from which they are taken.” 28 U.S.C. § 1738. Thus, the
respect accorded a judgment is determined by the law of the rendering state—in this
case, Alabama. Alabama courts do not recognize as binding against a person
judgments “in personam in a litigation in which he is not designated as a party or to
which he has not been made a party by service of process.” Austin v. Alabama Check
Cashers Ass'n, 936 So. 2d 1014, 1040 (Ala. 2005). Accordingly, this court is not
bound to respect the September 2012 Judgment,5 so the court need not consider CIT’s
suggestion that the judgment is wrong as a matter of Alabama law.6
Although it is not entirely clear at which aspect(s) of CIT’s motion for partial

5

CIT styles this issue as one of the violation of One West’s due process rights, although
the court is of the opinion that the due process exception (see, e.g., Kremer v. Chemical Const.
Corp., 456 U.S. 461, 482 (1982) (“[A] State may not grant preclusive effect in its own courts to a
constitutionally infirm judgment, and other state and federal courts are not required to accord full
faith and credit to such a judgment.”)) to the full faith and credit statute is only at issue when the
law of the relevant state would give full faith and credit to a constitutionally infirm judgment.
That is not the case here.
6

Nor could this court, if it were required to honor the September 2012 Judgment. See
Baker by Thomas v. General Motors Corp., 522 U.S. 222, 233–34 (1998) (citing Fautleroy v.
Lum, 210 U.S. 230, 237 (1908) (judgment is entitled to full faith and credit even if judgment
rested on a misapprehension of the governing law).
12

summary judgment they are directed, Defendants raise a handful of defenses. To the
extent they argue that One West’s failure to intervene in the state court lawsuit is
sufficient to bind CIT to that action’s result—the voiding of the mortgage—the court
rejects that argument. The general Anglo-American rule is “that [t]he law does not
impose upon any person absolutely entitled to a hearing the burden of voluntary
intervention in a suit to which he is a stranger,” Richards v. Jefferson County, Ala.,
517 U.S. 793, 800 n. 5 (1996) (citation omitted) (alteration in original), and
Defendants have offered no authority suggesting that Alabama employs a different
rule. The September 2012 Judgment has no power in this action.
III-B
It is undisputed that Poe and King were joint tenants with a right of
survivorship prior to King’s forging of the false deeds. The conveyance of one of the
two half-interests in a joint tenancy with right of survivorship creates a new tenancyin-common. Nunn v. Keith, 268 So.2d 792, 797 (Ala. 1972). A mortgage conveys
legal title from the mortgagor to the mortgagee. Trauner v. Lowrey, 369 So.2d 531,
534 (Ala. 1979). Thus, in Alabama, a mortgage executed by one joint tenant severs
a joint tenancy with right of survivorship into a tenancy-in-common. See Stewart v.
AmSouth Mortg. Co., 679 So.2d 247, 248–49 (Ala. Civ. App. 1995), rev’d on other
grounds sub nom. Ex Parte AmSouth Mortg. Co., 679 So.2d 251 (Ala. 1996). That is,
13

one of the two joint tenants may mortgage his or her half (and so destroy the joint
tenancy) unilaterally. Cf. Fadalla v. Fadalla, 929 So.2d 429, 434 (Ala. 2005) (stating
the unilateral destruction rule while contrasting joint tenancies with concurrent life
estates with cross contingent remainders in fee).
CIT argues that, when King mortgaged the Property, that act severed the joint
tenancy, and the mortgage lawfully attached to King’s half-interest. In their “Fraud”
and “Illegal Contract” defenses, the Defendants appear to argue that the mortgage was
infirm. Their argument is, however, unhelpfully terse on this point: “The facts and
law, as found and adhered to by the State Court, are clear and satisfactory for the
State Court to set aside the deeds and the mortgages.” (Doc. 34 at 6). Nevertheless,
CIT’s severance argument is obviously designed and deployed to inoculate its claim
against Defendants’ (conclusory) attack on the mortgage itself, see doc. 36 at 3, so
the court feels compelled to examine these under-developed defenses in greater detail.
In one of the demand letters in the record, Defendants’ former counsel argued
that “a forged deed is void, and completely ineffectual to pass title.” (Doc. 34-12 at
3) (emphasis added). The letter did not cite Alabama authority for the proposition, but
that is a verbatim statement of the law. See Sheffield v. Andrews, 679 So.2d 1052,
1054 (Ala. 1996) (quoting Cumberland Capital Corp. v. Robinette, 331 So.2d 709,
713 (Ala. Civ. App. 1976)). More importantly, “[a] subsequent innocent purchaser
14

is not protected against such void instruments.” Cumberland Capital, 331 So.2d at
714. So a more precise formulation of Defendants’ fraud and illegal contract defenses
would be that because the King mortgage was predicated on fraudulent deeds, the
original mortgagee was the prototypical innocent purchaser that would not be
protected against the void instrument, and, therefore, the mortgage itself was void.
Cumberland Capital supports this argument. There, the mortgagor forged
deeds transferring property to himself. He then mortgaged the property to the
mortgagee. The trial court voided the deed as well the mortgage, and the Court of
Civil Appeals affirmed. Id. at 715. Had CIT's predecessor in interest been made a
party to the state court action here, the state court's application of the rule in
Cumberland Capital in the September 2012 Judgment would likely have been
appropriate.7 But OneWest was not made a party. This court must rule on the facts
of this case, not those of Cumberland Capital.
CIT's rejoinder to the Cumberland Capital argument is that, because King
could have mortgaged his half-interest, the mortgage was not void, and it did in fact
attach, albeit to his half-interest only. They cite no authority to support the
proposition that a half-void mortgage is preserved by its non-void half—aside from

7

This is not to suggest that this court exercises appellate authority over the Circuit Court
of Jefferson County. See Lance v. Dennis, 546 U.S. 459, 463 (2006) (“[L]ower federal courts are
precluded from exercising appellate jurisdiction over final state court judgments.”).
15

the standard language about the right of joint tenants to alienate their property. But
it does not matter. The after-acquired title doctrine, which was a "settled" rule as early
as 1878, see Chapman v. Abrahams, 61 Ala. 108, 114 (1878), moots this issue.
In the January 2012 Judgment, the state court reinstated Poe’s interest in a joint
tenancy with right of survivorship. (See doc. 33-7). Since a joint tenancy with right
of survivorship requires unity of “title, interest, and possession,” Nunn, 268 So.2d at
794 & 797,8 King’s interest in that joint tenancy with right of survivorship was
necessarily also resurrected. Whether this was right or wrong as a matter of Alabama
law is irrelevant; this court takes the January 2012 Judgment as it is presented. See
Fauntleroy, 210 U.S. at 237. Poe’s death thereafter vested “the entire estate in the
survivor.” Kempaner v. Thompson, 394 So.2d at 921. That would be King.
Alabama has, “perhaps,” “more rigidly adhered to” the after-acquired title rule
than any other state. Turner v. Lassiter, 484 So.2d 378, 380 (Ala. 1985) (quoting
Doolittle v. Robertson, 19 So. 851 (Ala. 1895)). This rule provides that where “one
having no title to convey lands by express warranty or by the warranty which the law
implies from the use of the words ‘grant, bargain, sell, and convey,’ and thereafter
acquires title, ‘such title will inure and pass eo instanti to his vendee.’” Porter v.

8

Kempaner v. Thompson, 394 So.2d 918, 921 (Ala. 1981) describes Nunn as holding that
the four unities are no longer required to be present, but Nunn explicitly indicates that three
unities are required—not that all are abandoned. See Nunn, 268 So.2d at 524.
16

Henderson, 82 So. 668, 672 (Ala. 1919) (alteration added to include italics). At the
time he signed the mortgage, King “warrant[ed] . . . the title to the Property.” (Doc.
33-4 at 13). King was therefore subject to the after-acquired title rule, so title to the
Property vested immediately in OneWest upon Poe’s death (which caused 100%
ownership to vest in King, the mortgagor). The forged deeds’ incapacity to convey
title is therefore irrelevant.
Although King purported to convey his interest in the Property to Poe’s estate
in 2013, the mortgage, filed in 2008, took priority over King’s 2013 quitclaim deed
to Poe’s estate. See Bailey Mortg. Co. v. Gobble-Fite Lumber Co., Inc., 565 So.2d
138, 143 (Ala. 1990). OneWest foreclosed on February 14, 2014, and sold the
property to Fannie Mae. That sale extinguished all subordinate interests, including
the estate’s claim, see id., and vested legal title in Fannie Mae. ALA. CODE. § 35-10-5.
After the sale, Fannie Mae deeded the property back to OneWest, which later merged
into CIT. CIT is entitled to a declaratory judgment that it is the sole owner of the
Property. See Palmer v. Resolution Trust Corp., 613 So.2d 373, 375 (Ala. 1993) (the
“holder of the foreclosure deed has full legal title, subject only to the right of
redemption.”).
III-C
In Alabama, “[e]jectment is a favored action for the trial of title to land.” Kelley
17

v. Mashburn, 236 So.2d 326, 327 (1970). “An ejectment plaintiff” must prove that
“the plaintiff was possessed of the premises or has the legal title thereto, properly
designating or describing them, and that the defendant entered thereupon and
unlawfully withholds and detains the same.” Ware v. Deutsche Bank Nat. Trust Co.,
75 So. 3d 1163, 1172 (Ala. 2011) (citation and internal quotation marks omitted). In
short, “if the plaintiff shows a superior legal title . . . he must recover.” Lee v.
Jefferson, 435 So.2d 1240, 1242 (Ala. 1983). The court has concluded that CIT has
legal title to the entire Property. It is undisputed that Lavert Andrews has entered the
Property and detains it. His detainer is rendered unlawful by his lack of title.
Accordingly, he must be ejected from the property.
III-D
Defendants have a few more defenses that can be quickly dispatched. First up
is “B. Laches.” Laches does not apply to legal claims subject to a statute of
limitations. Elliott v. Navistar, Inc., 65 So.3d 379, 387 (Ala. 2010). Ejectment is
subject to the ten year statute of limitations provided by ALA. CODE § 6-2-33. See
Goodson v. Morrow, 547 So.2d 856, 858 (Ala. 1989). It is a legal claim. Karrh v.
Willis, 544 So.2d 921, 922 (Ala. 1989). As for the declaratory judgment action,
“[l]imitations statutes do not apply to declaratory judgments as such,” Luckenback
S.S. Co. v. United States, 312 F.2d 545, 548 (2d Cir. 1963), but it would be absurd to
18

apply laches to a declaratory judgment seeking ejectment to test title when the
underlying ejectment action is not subject to laches.
“C. Faulty Assignment or Wrongful Foreclosure” is premised entirely upon the
binding effect of the January 2012 Judgment on OneWest/CIT and this court. As
explained above, the January 2012 Judgment has no effect on OneWest/CIT.
“E. Mortgage Fraud” appears to be a non-sequitur, alleging that an attorney
who assisted in preparing these reverse mortgages was later convicted of wire fraud.
Whatever Defendants believe to be the significance of this fact, their argument is too
opaque (and the supporting evidence too illegible) to affect CIT’s title. “A party who
aspires to oppose a summary judgment motion must spell out his arguments squarely
and distinctly, or else forever hold his peace.” Higgins v. New Balance Athletic Shoe,
Inc., 194 F.3d 252, 260 (1st Cir. 1999).
IV
By separate order, the motion for partial summary judgment will be
GRANTED.9 It will be ADJUDGED that CIT is the sole owner of the Property. It
further will be ORDERED that Lavert Davis be EJECTED from the property.

9

Plaintiff has voluntarily dismissed its other claims against the Estate of Poe and Pamela
Bass. (See doc. 33 at 19 n. 7).
19

DONE and ORDERED this 23d day of June, 2016.

VIRGINIA EMERSON HOPKINS
United States District Judge

20