JPMorgan Chase Bank, N.A. v. Surek et al

Filing 30

Order re: 29 MOTION to Confirm Sale filed by JPMorgan Chase Bank, N.A. The foreclosure sale of property be held in abeyance as set out; denying request for publication costs as set out; the request for post judgment and other interest is denied; the proposed deed is approved, as set out. Plaintiff is ordered to file a response concerning amount due to defendant Surek.( Miscellaneous deadline set for 6/21/2012.). Signed by Judge Kristi K. DuBose on 6/14/2012. (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JP MORGAN CHASE BANK, N.A.,
Plaintiff,
v.

)
)
)
)
)
)

KATHERINE B. SUREK, et al.,
Defendants.1

CIVIL ACTION NO. 11-00263-KD-M

ORDER
This matter is before the Court on Plaintiff JP Morgan Chase Bank, N.A.’s “Motion to
Confirm Foreclosure Sale” (Doc. 29).
Pursuant to the “Judgment and Decree of Foreclosure” issued on February 7, 2012 (Doc.
26), the judicial foreclosure sale of the property at issue in this case was conducted by the United
States Marshal. Plaintiff represents to the Court that it made the only and highest bid for the
property at the foreclosure sale in the amount of $326,547.36, and that the auctioneer declared
Plaintiff the successful bidder. Plaintiff asserts further that the foreclosure sale “was duly and
properly conducted in accordance with the Mortgage Foreclosure Notice of Sale and the
Foreclosure Judgment.” (Doc. 29 at 2). Based on the foregoing, Plaintiff now requests that the
Court: 1) confirm the foreclosure sale; 2) approve the cost of publication of the mortgage
foreclosure sale notice ($860.49); 3) award post-judgment interest in the amount of $8,149.96
(182 days x the per diem contractual rate of $44.78, for the days between entry of the foreclosure
judgment and the present motion), with interest continuing to accrue at the rate of $44.78 per
diem until the judgment is satisfied in full; 4) approve the U.S. Marshal’s bill to conduct the

Christopher Surek is the only other defendant; however, he has filed bankruptcy such that this
action is stayed as to him. (Doc. 20).
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foreclosure sale ($4,913.21); and 5) approve the foreclosure deed drafted by Plaintiff (for
submission to the U.S. Marshal). In so doing, Plaintiff also asserts that Defendant Katherine
Surek is entitled to a credit in the amount of $320,773.66 based on Plaintiff’s bid price
($326,547.36) minus “allowable costs associated with the sale.” (Doc. 29 at 3).
Courts have broad discretion in determining whether to confirm or refuse to confirm a
judicial sale. See, e.g., Citibank, N. A. v. Data Lease Financial Corp., 645 F.2d 333 (5th Cir.
1981); Wood River Dev. v. Armbrester, 547 So.2d 844, 848 (Ala. 1989); Lynn v. Dodge, 727
So.2d 89 (Ala. Civ.App. 1997); Davis v. Battle, 675 So.2d 460 (Ala. Civ. App. 1996). Such
determinations ordinarily will not be disturbed except for an abuse of discretion, recognizing the
strong public policy in favor of the finality of judicial sales. Id. Generally courts have adopted
the policy that confirmation will not be refused except for substantial reasons, and that in the
absence of fraud or misconduct, the highest bidder will ordinarily be accepted as the purchaser of
the property offered for sale. See, e.g., First Nat. Bank of Jefferson Parish v. M/V Lightning
Power, 776 F.2d 1258 (5th Cir. 1985); Harduval v. Merchants’ & Mechanics’ Trust & Savings
Bank, 86 So. 52 (Ala. 1920) (finding that a purchaser at judicial sale is entitled to have the sale
confirmed by the court in the absence of irregularity, misconduct, fraud, mistake, or gross
inadequacy of price amounting in itself to fraud). There is no evidence of record of irregularity,
misconduct, fraud, mistake or gross inadequacy of price amounting in itself to fraud in the
foreclosure sale. Plaintiff has also represented to the Court that the foreclosure sale “was duly
and properly conducted in accordance with the Mortgage Foreclosure Notice of Sale and the
Foreclosure Judgment.” (Doc. 29 at 2). Accordingly, it is ORDERED that the foreclosure sale
of the property at issue in this case, in the amount of $326,547.36 as bid by Plaintiff (the only

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and highest bidder), is HELD IN ABEYANCE pending a determination of the precise credit
due to Defendant Katherine Surek.
Turning to the other items requested by Plaintiff, the Court finds as follows.

The

February 7, 2012 Judgment and Decree of Foreclosure governing the foreclosure proceeding
specifies that “Plaintiff is responsible for payment of the expenses associated with the
foreclosure sale.” (Doc. 26 at 2). As such, it is ORDERED that Plaintiff’s request that the
Court approve the $860.49 publication costs (Doc. 29-1 at 2) and $4,913.21 for the Marshal’s
bill (Doc. 29-1 at 3) as “allowable costs associated with the sale,” and by so doing deduct these
amounts from the bid amount, is DENIED.
Plaintiff also seeks an award of post-judgment interest in the amount of $8,149.96 (182
days x the per diem contractual rate of $44.78, covering the days between entry of the
foreclosure judgment and the date of the present motion), adding that interest continues to accrue
at the rate of $44.78 per diem until the judgment is satisfied in full. However, Plaintiff has not
referenced any portion of the relevant loan and mortgage documents where post-judgment
interest is allowed and/or post-judgment interest at a specific rate which would result in the sum
of $8,149.96. As such, it is ORDERED that Plaintiff’s request for $8,149.96 in post-judgment
interest as well as its further request for additional interest (“interest continues to accrue until the
judgment is satisfied in full[]”), is DENIED.
Further, attached to Plaintiff’s motion to confirm the foreclosure sale is a proposed
foreclosure deed for the U.S. Marshal to execute, for which Plaintiff seeks the Court’s approval.
(Doc. 29-1 at 4-8). The Judgment and Decree of Foreclosure provides that rather than the
Plaintiff, “the U.S. Marshal’s Office shall deliver a foreclosure deed to the successful bidder

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upon payment of the bid price and delivery of same in certified funds payable to the Clerk of
Court[]” and “the U.S. Marshal’s Office shall deliver a foreclosure deed to Plaintiff[]” if Plaintiff
is the successful bidder. (Doc. 26 at 2). As the proposed deed appears to be proper, it is
APPROVED.
As to the credit due Defendant Katherine Surek, the foreclosure sale price was
$326,547.36 and the default judgment against Defendant Katherine Surek was in the amount of
$314,912.83. Plaintiff asserts that Defendant Katherine Surek is due a credit of $320,773.66.
It appears that Plaintiff arrives at this figure by asserting “less allowable costs associated with
the sale[]” (i.e., that Plaintiff simply subtracted the publication costs and U.S. Marshal’s fee (a
combined total of $5,773.70)). (Doc. 29 at 3). As stated supra, Plaintiff bears the foreclosure
sale expenses such that Plaintiff’s credit calculation appears to be incorrect. Moreover, there is
no explanation as to why Plaintiff paid $11,634.53 more for the property than was actually owed
pursuant to the Default Judgment Order (Doc. 21). Under Davis v. Huntsville Prod. Credit
Ass’n, 481 So.2d 1103, 1105-1106 (Ala. 1985), the debtor is entitled to surplus proceeds from
sale of mortgaged property, where property was sold at foreclosure sale for amount in excess of
mortgage debt. As such, the Plaintiff is ORDERED to file a Response on or before June 21,
2012, explaining its position concerning the amount due to Defendant Katherine Surek.
DONE and ORDERED this the 14th day of June 2012.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

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