Howard et al v. Wells Fargo Bank NA
MEMORANDUM OPINION. Signed by Judge R David Proctor on 5/2/2016. (AVC)
2016 May-02 PM 06:08
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
CHARLES R. HOWARD, et al.,
WELLS FARGO BANK, N.A.,
Case No.: 2:15-cv-02238-RDP
This case is before the court on Defendant’s Motion To Dismiss (Doc. # 5) pursuant to
Federal Rule of Civil Procedure 12(b)(6), filed December 18, 2015. The Motion is fully briefed.
(Docs. # 6, 9, 12). On January 15, 2016, the court notified the parties it was converting the
Motion into a Federal Rule of Civil Procedure 56 motion for summary judgment. (Doc. # 13).
Because Plaintiffs are proceeding pro se, the court gave them express notice of the summary
judgment rules and of their right to file evidentiary materials in opposition, and that they may
submit a Rule 56(d) affidavit. (Id.). Defendant submitted a supplemental memorandum of law
and exhibits. (Doc. # 14). Plaintiffs submitted nothing. After careful review, and for the
following reasons, the court concludes the Motion is due to be granted, and this case is due to be
Facts and Procedural History1
On February 6, 2008, Plaintiffs purchased real property located at 7639 Old Dixiana
Road in Pinson, Alabama (the “Property”), located in Jefferson County. (Docs. # 1-2, 9 at Ex. A,
The facts set out in this opinion are gleaned from the parties’ submissions of facts claimed to be
undisputed, any responses to those submissions, and the court’s own examination of the evidentiary record. All
reasonable doubts about the facts have been resolved in favor of the nonmoving party. See Info. Sys. & Networks
Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002).
14-1). They received a Joint Survivorship Deed for the Property, which was recorded in the
Office of the Judge of Probate for Jefferson County, Alabama, on February 11, 2008. (Id.).
Also, on February 6, 2008, Plaintiffs executed a fixed rate mortgage note in the amount of
$190,400.00 in favor of Wachovia Mortgage, FSB (“Wachovia”) (the “Note”), secured by a
mortgage (the “Mortgage,” and, together with the Note, the “Loan”) on the Property. (Docs. # 61, 14-2). The Mortgage was recorded in the Office of the Judge of Probate for Jefferson County,
Alabama, on February 11, 2008. (Id.). Defendant Wells Fargo Bank, N.A., is the successor by
merger to Wachovia. (Doc. # 1-2).
In August 2013, Plaintiffs stopped making payments to Defendant. (Doc. # 1-2 at ¶ 6).
On March 26, 2014, Defendant sold the Property at a foreclosure sale. (Doc. # 14-3). Defendant
purchased the Property at the sale, became the holder of the Foreclosure Deed dated March 26,
2014, and recorded it in the Office of the Judge of Probate for Jefferson County, Alabama, on
April 3, 2014. (Id.). The law firm of Sirote & Permutt, P.C. sent Plaintiffs a Notice to Vacate
the Property on April 4, 2014. (Doc. # 14-4). Subsequently, on April 10, 2014, Defendant filed
a complaint for possession in Jefferson County Circuit Court, case no. 01-CV-2014-901523.00.
(Docs. # 1-2 at ¶ 6, 14-5). At some point Plaintiffs vacated the Property, although the exact date
is not clear. (See Docs. # 1-2 at ¶ 6, 14-6). Accordingly, Defendant filed a motion to dismiss
without prejudice its complaint in Jefferson County Circuit Court, (Id.), and, on December 1,
2014, that case was dismissed. (Doc. # 14-7).
Defendant transferred its interest in the Property to non-parties Gordon and Mitzi Gamble
via a Special Warranty Deed dated April 24, 2015. (Docs. # 1-2 at ¶ 7, 14-8). The Special
Warranty Deed was recorded in the Office of the Judge of the Probate for Jefferson County on
May 8, 2015. (Doc. # 14-8).
Plaintiffs, proceeding pro se, filed the instant Complaint on April 10, 2014, in the Circuit
Court of Jefferson County, Alabama. (Doc. # 1-2). In their Complaint, they allege that in
October 2010, Plaintiff “Charles Howard entered into a private agreement with a private
individual to perform an act between October 14, 2010 until April 27, 2011, to satisfy the
demands for the remaining balance on a loan” from Wachovia. (Id. at ¶ 4). They further allege
that after completing the unspecified task, the demand for the remaining balance of the Mortgage
was satisfied, and they received as a receipt from the Probate Court a Joint Survivorship Deed.
(Id. at ¶ 5). No other allegations or supporting materials were submitted in support of these
claims. Plaintiffs request a declaratory judgment stating the following: the Mortgage was paid in
acceptance of the demands of the holder of the security instrument (i.e., Defendant); the deed
received from the Probate Court is in Plaintiffs’ possession; the Property belongs to and is owned
by Plaintiffs; and Defendant has no rights to the Property and the Gambles are trespassing. (Doc.
Defendant removed the case to this court on December 9, 2015.
(Doc. # 1).
Subsequently, Defendant filed its dismissal motion pursuant to Rule 12(b)(6). (Doc. # 5). In that
Motion, Defendant argues that Plaintiffs’ Complaint violates applicable federal pleading rules,
and, in any event, they are not legally entitled to the relief they seek. (Doc. # 6). Defendant
attached copies of the Mortgage and Foreclosure Deed to their brief. (Docs. # 6-1, 6-2).
Plaintiffs have responded and asserted they now hold (and have held) the Joint
Survivorship Deed during the Wachovia-Wells Fargo merger and the subsequent foreclosure
auction on the Property. (Doc. # 9). Thus, they contend that Defendant could not have lawfully
obtained the Property during the merger or at foreclosure without purchasing the Joint
Survivorship Deed from Plaintiffs. (Id.). Additionally, Plaintiffs assert they were denied due
process when the Probate Judge certified the Foreclosure Deed, thereby essentially creating
“dueling” deeds. (Id.). Plaintiffs attached to their brief six exhibits, which are copies of the
following: (Ex. A) the Joint Survivorship Deed; (Ex. B) an Acknowledgment Letter from
Wachovia dated January 28, 2008, concerning Plaintiff’s application for the Loan; (Ex. C) the
Joint Survivorship Deed (again); (Ex. D) Defendant’s state-court complaint against Plaintiffs;
(Ex. E) the December 1, 2014 Order of Dismissal in that case; and (Ex. F) the Special Warranty
Deed conveying the Property from Defendant to the Gambles. (Id.). Defendant’s reply brief
counters that Plaintiffs are mistaken as to Alabama law concerning mortgages because Alabama
is a “title” state, and Defendant did not need the original Joint Survivorship Deed to foreclose on
the Mortgage. (Doc. # 12).
The court observes that the Eleventh Circuit has directed district courts that pro se
plaintiffs “must be given at least one chance to amend the complaint before the district court
dismisses the action with prejudice” where a more carefully drafted complaint might state a
claim. Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991), overruled in part by Wagner v.
Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002) (en banc).2 However, the
Eleventh Circuit has recognized two exceptions to this directive: the general rule does not apply
“(1) where the plaintiff has indicated that he does not wish to amend his complaint; and (2)
where a more carefully drafted complaint could not state a claim and is, therefore, futile.”
Johnson v. Boyd, 568 F. App’x 719, 723 (11th Cir. 2014) (internal citations omitted). Here,
based on the pleadings alone, the court determines that Plaintiffs could not state a claim with a
more carefully drafted complaint, and that permitting such an amendment would be a futile
exercise. Moreover, due to the number of extraneous documents attached to the papers by both
Wagner overruled Bank, holding that “[a] district court is not required to grant a plaintiff leave to amend
his complaint sua sponte when the plaintiff, who is represented by counsel, never filed a motion to amend nor
requested leave to amend before the district court.” Wagner, 314 F.3d at 542. However, Wagner recognized that it
“intimate[d] nothing about a party proceeding pro se.” Id. at 542 n.1. The Eleventh Circuit has since indicated that
the pro se rule referenced above remains unchanged by Wagner. See Johnson v. Boyd, 568 F. App’x 719, 723 (11th
parties, the court converted Defendant’s Rule 12(b)(6) motion into one for summary judgment
under Rule 56. (Doc. # 13). In the conversion Order, the court notified Plaintiffs of their right to
file affidavits and any other materials in opposition, instructed Plaintiffs of the summary
judgment rules, and informed them of their right to file a Rule 56(d) affidavit. (Id.). Plaintiffs
did not accept this invitation. They filed nothing. Defendant filed a supplemental memorandum
with evidentiary materials. (Doc. # 14). In the supplemental brief, Defendant repeats its “title”
state argument, and asserts that Plaintiff’s inability to introduce admissible evidence
demonstrating that the Loan was satisfied prior to the foreclosure sale (which would make that
sale void) precludes granting the requested relief. (Id.).
Standard of Review
Rule 12(d) provides that if, in a Rule 12(b)(6) motion, “matters outside the pleadings are
presented to and not excluded by the court, the motion must be treated as one for summary
judgment under Rule 56. All parties must be given a reasonable opportunity to present all the
material that is pertinent to the motion.”3 Fed. R. Civ. P. 12(d); see also Trustmark Ins. Co. v.
ESLU, Inc., 299 F.3d 1265, 1267 (11th Cir. 2002) (citations omitted) (“Whenever a judge
considers matters outside the pleadings in a 12(b)(6) motion, that motion is thereby converted
into a Rule 56 Summary Judgment motion.”). Under a Rule 12(b)(6) motion, a district court is
“generally addressing questions of law. A summary judgment, on the other hand, carries far
greater impact since it results in a final adjudication of the merits.” Finn v. Gunter, 722 F.2d
711, 713 (11th Cir. 1984). Upon conversion to a Rule 56 motion, the court must comply with the
requirements of Rule 56. Trustmark Ins., 299 F.3d at 1267.
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper “if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
The Eleventh Circuit has determined that a ten-day notice is required. Prop. Mgmt. & Invs., Inc. v. Lewis,
752 F.2d 599, 605 (11th Cir. 1985) (citations omitted). The court provided that notice. (Doc. # 13).
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). The party asking for 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 which it believes demonstrate the absence of a genuine issue of material fact. Id. at 323.
Once the moving party has met its burden, Rule 56(c) requires the non-moving party to go
beyond the pleadings and – by pointing to affidavits, or depositions, answers to interrogatories,
and/or admissions on file – designate specific facts showing that there is a genuine issue for trial.
See id. at 324.
The substantive law will identify which facts are material and which are irrelevant. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Anderson”). All reasonable doubts
about the facts and all justifiable inferences are resolved in favor of the non-movant. See Allen v.
Bd. of Pub. Educ. For Bibb Cty., 495 F.3d 1306, 1314 (11th Cir. 2007); Fitzpatrick v. City of
Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine, “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. If
the evidence is merely colorable, or is not significantly probative, summary judgment may be
granted. See id. at 249.
When faced with a “properly supported motion for summary judgment, [the non-moving
party] must come forward with specific factual evidence, presenting more than mere
allegations.” Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999 (11th Cir. 1997). As Anderson v.
Liberty Lobby, Inc., teaches, under Rule 56(c) a plaintiff may not simply rest on her allegations
made in the complaint; instead, as the party bearing the burden of proof at trial, she must come
forward with at least some evidence to support each element essential to her case at trial. See
Anderson, 477 U.S. at 252. “[A] party opposing a properly supported motion for summary
judgment ‘may not rest upon the mere allegations or denials of [her] pleading, but . . . must set
forth specific facts showing that there is a genuine issue for trial.’” Id. at 248 (citations omitted).
Summary judgment is mandated “against a party who fails to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322. “Summary judgment may be
granted if the non-moving party’s evidence is merely colorable or is not significantly probative.”
Sawyer v. Southwest Airlines Co., 243 F. Supp. 2d 1257, 1262 (D. Kan. 2003) (citing Anderson,
477 U.S. at 250-51).
“[A]t the summary judgment stage the judge’s function is not himself to weigh the
evidence and determine the truth of the matter but to determine whether there is a genuine issue
for trial.” Anderson, 477 U.S. at 249. “Essentially, the inquiry is ‘whether the evidence presents
a sufficient disagreement to require submission to the jury or whether it is so one-sided that one
party must prevail as a matter of law.” Sawyer, 243 F. Supp. 2d at 1262 (quoting Anderson, 477
U.S. at 251-52); see also LaRoche v. Denny’s, Inc., 62 F. Supp. 2d 1366, 1371 (S.D. Fla. 1999)
(“The law is clear . . . that suspicion, perception, opinion, and belief cannot be used to defeat a
motion for summary judgment.”).
In order for the court to determine whether Plaintiffs are entitled to any of the relief they
request in their Complaint, it is necessary to first determine the validity of the foreclosure sale.
“In a direct attack on a foreclosure—that is, an action seeking declaratory and injunctive relief . .
. to set aside the sale after it has occurred—any circumstance in the foreclosure process that
would render the foreclosure sale void or voidable may be asserted.” Campbell v. Bank of Am.,
N.A., 141 So.3d 492, 494 (Ala. Civ. App. 2012) (emphases in original and internal citations
omitted). The Campbell court, looking to a commentator, expounded on that principle as
Courts frequently speak of flaws in [nonjudicial-foreclosure] sales so serious that
they produce a void sale. . . . What the courts mean in denominating a sale as
void is that adversely affected parties may have a sale set aside even though the
property passed into the hands of a bona fide purchaser. In this sense of the term,
there are very few void sales. Most of the cases in which a sale to a bona fide
purchaser was set aside involved sales by trustees or mortgagees who lacked the
power to sell.
Id. at 495 (quoting 12 Thompson on Real Property §§ 101.04(c)(2) and 101.04(c)(2)(i) at 401-02
(Thomas ed. 1994)) (changes in Campbell). But,
[w]here a defect is not so egregious as to make the sale utterly void but not so
inconsequential as to be overlooked, the sale will be voidable; that is, it can be set
aside at the request of an injured party so long as the legal title has not moved to a
bona fide purchaser. This follows from the traditional common law rule that a
subsequent bona fide purchaser of a legal title takes free of hidden equities. The
right of an injured party to set aside a deed because of flaws that produce only a
voidable title is an equitable right cut off by transfer to a bona fide purchaser.
Id. (quoting 12 Thompson on Real Property § 101.04(c)(2)(ii) at 403). Therefore, the court must
determine whether the purchasers of the Property from Defendant (i.e., the Gambles) are bona
fide purchasers for value.4
The Non-Party Gambles Are Bona Fide Purchasers for Value
“A bona fide purchaser for value is a purchaser who: (1) purchases legal title to real
property, (2) without actual or constructive notice of any infirmities, claims, or equities against
the title.” Perine v. Jackson, 545 So.2d 1318, 1319 (Ala. 1988) (citing Rolling “R” Constr., Inc.
v. Dodd, 477 So.2d 330, 331-32 (Ala. 1985); First Natl. Bank of Birmingham v. Culberson, 342
So.2d 347, 350 (Ala. 1977)). “The rule of property in Alabama as elsewhere is that the record of
The court observes that, because the Gambles are not parties to the case, it does not have jurisdiction over
them and cannot issue any declaration as to whether they are trespassing on the Property. See Infant Formula
Antitrust Litig., MDL 878 v. Abbott Labs., 72 F.3d 842, 843 (11th Cir. 1996). Nonetheless, Defendant asserts that
they are bona fide purchasers for value, and, thus, Plaintiffs must prove the foreclosure sale was void. (Doc. # 14).
Indeed, the determination is necessary to resolve the issues presented against Defendant, and may be determined
without ruling on the current occupational status of the Property.
a mortgage is constructive notice to everybody.” Id. (quoting Hendley v. First Natl. Bank, 180
So. 667, 675 (Ala. 1937)) (changes and internal quotation marks omitted). But, “[i]t is well
settled in Alabama that foreclosure of a mortgage extinguishes the debt to the amount of the
purchase price, if that amount is less than the debt, or extinguishes the entire debt if the purchase
price is more than that amount.”5 Davis v. Huntsville Prod. Credit Assn.¸ 481 So.2d 1103, 110406 (Ala. 1985) (citations omitted).
Here, the Mortgage was foreclosed upon and purchased by Defendant at the March 26,
2014 foreclosure sale. (See Doc. # 14-3). Defendant then received a Foreclosure Deed for the
Property. (Id.). And, Defendant conveyed the Property to the current non-party occupants and
owners (i.e., the Gambles) for $145,000.00. (Docs. # 1-2 at ¶ 7, 14-8). Therefore, when the
Gambles purchased the Property from Defendant, and were granted the Special Warranty Deed,
there would have been no outstanding Mortgage on record. (Doc. # 14-8). Accordingly, the
court concludes the Gambles were bona fide purchasers of the Property.
The Foreclosure Sale Is Not Void
Because the court finds the Gambles were bona fide purchasers, Plaintiffs must show the
foreclosure sale was void in order to be entitled to the relief requested in the Complaint. They
have not come close to doing so. That is, they have produced no evidence to suggest any factual
issues concerning the sale, and their arguments are unsupported by law.
Moreover, the foreclosure of a valid senior mortgage cuts off all subordinate interests in the Property
unless junior lienors redeem within the time period specified by Alabama Code § 6-5-248. Cameron v.
Meadowbrook Grp., 730 So.2d 234, 235 (Ala. Civ. App. 1999). And, “a purchase money mortgage takes priority
over both previous and subsequent claims.” Sunshine Bank of Ft. Walton Beach v. Smith, 631 So.2d 965, 968 (Ala.
1994) (citation omitted). A purchase money mortgage is a mortgage on land executed to secure the money used by
the purchaser of the land to buy it. Id. (citation omitted). Thus, the Mortgage at issue here is a purchase money
mortgage. (See Doc. # 14-2; see also Doc. # 9 at Ex. B). Although not raised in the Complaint, Plaintiffs in their
opposition brief contend that the Joint Survivorship Deed is a legal lien on the Property. (Doc. # 9 at 2). Even if
this statement were legally correct, that lien would be junior to the Mortgage held by Defendant until the foreclosure
In Alabama, there are four recognized circumstances that may render a foreclosure sale
(1) when the foreclosing entity does not have the legal right to exercise the power
of sale, as, for example, when that entity is neither the assignee of the mortgage,
nor the holder of the promissory note at the time it commences the foreclosure
proceedings; (2) when the debt secured by the mortgage was fully paid prior to
foreclosure; (3) when the foreclosing entity failed to give notice of the time and
place of the foreclosure sale; and (4) when the purchase price paid is so
inadequate as to shock the conscience, it may itself raise a presumption of fraud,
trickery, unfairness, or culpable mismanagement, and therefore be sufficient
ground for setting the sale aside.
Campbell, 141 So.3d at 495-96 (internal citations and quotations omitted). Here, notice of the
foreclosure sale and the adequacy of the purchase price are not at issue.6 Thus, the foreclosure
sale is void only if the debt secured by the Mortgage was fully paid prior to foreclosure, or if
Defendant had no legal right to exercise the power of sale.
Plaintiffs Have Not Proven the Loan Was Paid in Full
Plaintiffs request the court to declare the Mortgage was paid, rending foreclosure void.
Of course, they bear the burden of establishing that the Loan was satisfied before the foreclosure
sale. Berry v. Howell, 5 So.2d 405, 406 (Ala. 1941). But, Plaintiffs’ only argument in support of
their requested relief is an averment that an unnamed “private individual” agreed in a “private
agreement” to satisfy the remaining payments owed on the Loan. (Doc. # 1-2 at ¶ 4). Despite an
opportunity to submit additional evidence, they have not provided anything supporting this
“A plaintiff cannot defeat summary judgment by relying upon conclusory
allegations. . . .” Hill v. Oil Dri Corp. of Ga., 198 Fed. Appx. 852, 858 (11th Cir. 2006) (per
curiam) (citing Holifield v. Reno, 115 F.3d 1555, 1564 n. 6 (11th Cir. 1997)). “To survive
And, a review of the record supports the adequacy of the purchase price ($173,692.00). (Doc. # 14-3).
In fact, the only evidence Plaintiffs provided is a copy of the Joint Survivorship Deed with the Probate
Judge’s certification dated February 11, 2008. (Doc. # 9 at Ex. A). This deed does not support an allegation of
payment of the Mortgage because Plaintiffs already received the deed when they acquired the Property with the
Loan from Defendant. (See id.; Doc. # 14-1).
summary judgment, opposing affidavits [or other evidentiary material] must set forth specific
facts showing that there is an issue for trial.” Id. (citing Fed. R. Civ. P. 56(e); Leigh v. Warner
Bros., 212 F.3d 1210, 1217 (11th Cir. 2000)).
Instead of submitting supporting factual materials, Plaintiffs admitted that, after the
Wachovia-Wells Fargo merger, Defendant continued to demand payment, but they “stopped
paying” Defendant in August 2013. (Doc. # 1-2 at ¶ 6). These allegations are not conclusory.
Furthermore, Defendant has not challenged them, and the court considers them undisputed facts.
(See Doc. # 14). See also Fed. R. Civ. P. 56(e)(2). And, even if these averments were not due to
be accepted as true, Plaintiffs’ claims fail for a separate reason: they have not met their burden
of proving through evidence and specific factual allegations that they fully paid the Mortgage
prior to the foreclosure sale. Accordingly, as a matter of law, the sale is not voided by full
payment of the Mortgage.
Defendant Had the Legal Right To Exercise the Power of Sale
Plaintiffs also seek a declaration that they are the owners of the Property and that
Defendant has no rights to it. (Doc. # 1-2). In support of this assertion (or so it appears), they
contend that, because they hold the Joint Survivorship Deed, Defendant had no right to foreclose
on the Mortgage. (Id.; Doc. # 9). The court disagrees.
The Supreme Court of Alabama has explained:
Alabama classifies itself as a “title” state with regard to mortgages. Execution of
a mortgage passes legal title to the mortgagee. The mortgagor is left with an
equity of redemption, but upon payment of the debt, legal title invests in the
mortgagor. The equity of redemption may be conveyed by the mortgagor, and his
grantee secures only an equity of redemption. The payment of a mortgage debt
by the purchaser of the equity of redemption invests such purchaser with the legal
title. The equity of redemption in either case, however, is extinguished by a valid
foreclosure sale, and the mortgagor or his vendee is left only with the statutory
right of redemption.
Trauner v. Lowery, 369 So.2d 531, 534 (Ala. 1979) (internal citations omitted). Here, Plaintiffs
executed a mortgage with Wachovia, which was the predecessor to Defendant. (Doc. # 1-2 at ¶
2; Doc. # 14-2; see also Doc. # 14-3). Thus, Defendant held the legal title to the Mortgage,
while Plaintiffs had an equity of redemption. Defendant therefore had the right to foreclose on
the Mortgage if Plaintiffs failed to comply with its terms. (Doc. # 14-2 at 15). See Ex parte
GMAC Mortg., LLC, 176 So.3d 845, 848-52 (Ala. 2012) (discussing right to exercise
foreclosure); see also Coleman v. BAC Servicing, 104 So.3d 195, 205 (Ala. Civ. App. 2012)
(holder of note “entitled to exercise the right to foreclose under the mortgage”).
Two items of undisputed evidence indicate that Plaintiffs breached the terms of the
Mortgage: Plaintiffs’ admission that they stopped making payments and the Foreclosure Deed
(written by non-party Corvin Auctioneering, LLC).
(Doc. # 1-2 at ¶ 6; Doc. # 14-3
(“WHEREAS, default was made in the payment of the indebtedness secured by said mortgage,
and the said Wells Fargo Bank, . . . did declare all of the indebtedness secured by said mortgage,
subject to foreclosure as therein provided. . . .”)). Plaintiffs have provided no evidence which
contradicts either of these items found in the Rule 56 record. Accordingly, Defendant “became
the absolute owner of the property by the merger of the equity of redemption and the legal title
following [its] foreclosure of [Plaintiffs]’ mortgage” on March 26, 2014. (See Doc. # 14-3).
Ala. Home Mortg. Co., Inc. v. Harris, 582 So.2d 1080, 1083 (Ala. 1991) (citations omitted).
“After the merger of the legal and equitable titles in [Defendant], [Defendant] then made an
outright conveyance of its interest to the [non-party Gambles]” via Special Warranty Deed on
April 24, 2015. Ala. Home Mortg., 582 So.2d at 1083; (Doc. # 14-8). “The effect of this  deed
was to convey to the [Gambles] all right, title, and interest possessed by [Defendant] at the time
of the execution of the deed.” Id.
Finally, and in the alternative, even if Plaintiffs lost their equitable right of redemption at
the time of the foreclosure sale, they still retained their statutory right of redemption. See Ala.
Code § 6-5-248. But, the statutory right of redemption must be exercised “within 180 days from
the date of the sale for residential property on which a homestead exemption was claimed in the
tax year during which the sale occurred, or within one year from the date of the sale for all other
property.” Id. at § 6-5-248(b). Thus, the latest deadline for Plaintiffs to exercise their right of
redemption was March 26, 2015. They have provided no evidence suggesting they timely did so
or attempted to redeem.
Therefore, because Defendant had the right to foreclose on the Mortgage, and actually
did foreclose on it, the foreclosure sale is not void. Furthermore, by foreclosing, Defendant
extinguished Plaintiffs’ legal title to the Property, and Plaintiffs did not timely exercise their
right of redemption. Defendant obtained the legal and equitable title to the Property at the
foreclosure sale and validly conveyed that title. For all these reasons, the court concludes
Plaintiff has no rights to the Property.
For these reasons, Defendant’s Motion (Doc. # 5) is due to be granted, and this case is
due to be dismissed. A separate order will be entered.
DONE and ORDERED this May 2, 2016.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
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