Staley v. Green Tree Servicing, LLC
Filing
17
ORDER GRANTING 13 Motion for Summary Judgment. The subject Release of Mortgage recorded in the Mobile County Probate Office is rescinded, null, void, and of no effect. as more fully set out in order. Signed by Senior Judge Charles R. Butler, Jr on 1/26/2015. (clr)
IN
THE
UNITED
STATES
DISTRICT
COURT
FOR
THE
SOUTHERN
DISTRICT
OF
ALABAMA
SOUTHERN
DIVISION
PATRICIA
STALEY,
)
Plaintiff,
)
CIVIL
ACTION
NO.
v.
)
14-‐00316-‐CB-‐N
GREEN
TREE
SERVICING,
LLC,
)
Defendant.
)
ORDER
This
matter
is
before
the
Court
on
the
Defendant’s
motion
(Doc.
13)
seeking
summary
judgment
on
its
counterclaim
against
the
Plaintiff.1
For
reasons
discussed
below,
the
motion
is
due
to
be
granted.
Determinations
of
Undisputed
Fact2
On
December
23,
2002,
Counterclaim
Defendant
Patricia
Staley
(“Staley”)
executed
a
Note
and
Mortgage
and
Countrywide
Home
Loans,
Inc.
(“Countrywide”).
The
Mortgage
was
recorded
in
the
Mobile
County
Probate
Office
(the
“Probate
Office”)
at
Book
5287,
Page
530.
A
copy
of
the
Note
and
recorded
Mortgage
are
attached
the
Affidavit
of
Jeffrey
Sis
as
Exhibits
A.1
and
A.2,
respectively.
Mr.
Sis’s
affidavit
is
attached
to
Green
Tree’s
motion
for
summary
judgment
(the
“Motion”)
as
Exhibit
A.
1After
this
action
was
removed
from
state
court,
this
Court
dismissed
Plaintiff’s
claims
without
prejudice
for
deliberately
disobeying
a
court
order.
(Doc.
12.)
Therefore,
Defendant’s
counterclaim
is
the
only
claim
remaining
in
this
action.
2
Because
Plaintiff
has
failed
to
respond
to
the
Defendant’s
summary
judgment
motion
as
ordered
by
the
Court,
the
facts
asserted
by
the
Defendant
are
deemed
admitted.
See
Local
Rule
7.2(b).
On
or
about
November
1,
2013,
Green
Tree
became
the
servicer
and
holder
of
the
Note
and
Mortgage,
and
later
the
recorded
assignee
of
the
Mortgage.
A
copy
of
the
recorded
assignment
agreement
is
attached
to
the
Sis
Affidavit
as
part
of
Exhibit
A.3.
A
modification
agreement
executed
by
Staley
is
attached
to
the
Sis
Affidavit
as
Exhibit
A.4.
On
May
12,
2014,
without
the
consent,
permission
or
authority
of
Green
Tree,
Staley
drafted
and
unilaterally
recorded
a
document
with
the
Probate
Office
of
Mobile
County
entitled
–
“Release
of
Mortgage”
(the
“Release”).
The
Release
makes
several
false,
inaccurate
and
misleading
statements,
including
that
Green
Tree
had
“received
satisfaction”
of
the
mortgage
indebtedness
and
that
“the
debt
is
hereby
cancelled”
and
“discharged.”
(Sis.
Aff.,
Ex
A.5.)
To
the
contrary,
Staley
had
not
paid
the
balance
owed
on
the
Note
and
Mortgage,
nor
had
Green
Tree
agreed
to
release
the
Mortgage
or
the
Mortgage
lien.
(Id.)
In
fact,
Staley
still
owed
well
over
$170,000
on
the
debt
and
was
over
nine
months
past
due
on
her
payments.
(Sis
Aff.)
Staley
also
worded
the
Release
(“duly
executed,”
“[p]repared
by:
[Staley\
for
Green
Tree,”
etc.)
in
such
a
manner
that
a
third
party
seeing
the
Release
would
believe
that
Green
Tree
had
consented
or
participated
in
it
being
filed,
when,
in
truth,
Green
Tree
had
not
consented
or
participated
in
the
drafting
and
recorded
whatsoever.
(Id.)
The
document
was
recorded
without
Green
Tree’s
knowledge,
permission,
or
consent.
(id.)
On
June
26,
2014,
Green
Tree,
though
counsel,
sent
written
correspondence
to
Staley
demanding
that
the
Release
be
withdrawn.
A
copy
of
the
correspondence
2
is
attached
to
the
Sis
Affidavit
as
Exhibit
A.6.
To
date,
to
Green
Tree’s
knowledge,
Staley
has
undertaken
no
actions
to
withdraw
the
Release
or
to
otherwise
convey
or
represent
that
it
is
null,
void,
and
of
no
effect.
(Sis
Aff.)
Conclusions
of
Law
“Summary
judgment
is
appropriate
‘if
the
pleadings,
depositions,
answers
to
interrogatories,
and
admission
on
file,
together
with
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.’
Fed.
R.
Civ.
P.
56(c).
In
opposing
the
summary
judgment
motion,
‘an
adverse
party
may
not
rest
upon
the
mere
allegations
or
denials
of
the
adverse
party’s
pleadings,
but
the
adverse
party’s
response,
by
affidavits
or
as
otherwise
provided
in
this
rule,
must
set
forth
specific
facts
showing
that
there
is
a
genuine
issue
for
trial.’
Fed.
R.
Civ.
P.
56(e).”
Merget
v.
Moss,
246
Fed.
Appx.
664
(11th
Cir.
2007
Section
35-‐4-‐153
of
the
Alabama
Code
provides:
“[w]hen,
through
fraud,
or
a
mutual
mistake
of
the
parties,
or
a
mistake
of
one
party
which
the
other
at
the
time
knew
or
suspected,
a
deed,
mortgage
or
other
conveyance
does
not
truly
express
the
intention
of
the
parties,
it
may
be
revised
by
a
court
on
the
application
of
the
party
aggrieved
so
as
to
express
that
intention,
insofar
as
this
can
be
done
without
prejudice
to
rights
acquired
by
third
persons
in
good
faith
and
for
value.”3
As
the
Sis
3
If
the
mortgage
release
does
not
qualify
as
a
“mortgage
under
Ala.
Code
§
35-‐4-‐153,
it
would
certainly
qualify
as
an
“other
conveyance”
because,
when
valid,
a
mortgage
release
materially
alters
title
to
the
subject
property.
See
e.g.
Ala.
Code
§
35-‐10-‐26
(“The
payment
or
satisfaction
of
the
real
property
mortgage
debt
divests
the
title
passing
by
the
mortgage.”)
3
Affidavit
makes
clear,
the
Release
at
issue
is
clearly
a
fraudulent
document
that
Staley
filed
in
an
(unsuccessful)
effort
to
thwart
the
foreclosure
of
her
home.
Indeed,
the
Release
makes
several
false,
inaccurate
and
misleading
statements,
including
that
Green
Tree
had
“received
satisfaction”
of
the
mortgage
indebtedness
and
that
“the
debt
is
hereby
cancelled”
and
“discharged.”
In
fact,
Staley
had
not
paid
the
balance
owed
on
the
Note
and
Mortgage,
nor
had
Green
Tree
agreed
to
release
the
Mortgage
or
the
Mortgage
lien.
(Sis
Aff.).
Staley
also
worded
the
Release
(“duly
executed,”
“[p]repared
by:
[Staley]
for
Green
Tree,”
etc.)
in
such
a
manner
that
a
third
party
seeing
the
release
would
believe
that
Green
Tree
had
consented
or
participated
in
it
being
filed,
when,
in
truth,
Green
Tree
had
not
consented
or
participated.
(Id.)
Based
on
the
clear
testimony
from
Green
Tree
that
it
did
not
consent
to,
and
played
no
role
in,
the
filing
of
the
Release,
this
Court
will
grant
summary
judgment
in
favor
of
Green
Tree.
See
Ala.
Code
§
35-‐4-‐153;
Ala.
Code
§
6-‐6-‐220,
et
seq.4,
28
U.S.C.
§
2201,
et
seq.;
Wells
Fargo
Bank,
N.A.
v.
Sharma,
642
F.
Supp.,
2d
242
(S.D.N.Y.
2009)
(district
court
had
authority
to
rescind
or
terminate
an
agreement
under
the
Declaratory
Judgment
Act).
The
Court
further
finds
that,
at
the
very
least,
the
Release
is
invalid
because
Staley
failed
to
follow
the
requirements
under
Alabama
law
for
filing
a
release
of
mortgage,
something
that
can
only
be
accomplished
by
the
4
Ala.
Code
§
6-‐6-‐223
provides:
“[a]ny
person
interested
under
a
deed,
will,
written
contract,
or
other
writings
constituting
a
contract
or
whose
rights,
status,
or
other
legal
relations
are
affected
by
a
statute,
municipal
ordinance,
contract,
or
franchise
may
have
determined
any
question
of
construction
or
validity
arising
under
the
instrument,
statute,
ordinance,
contract,
or
franchise
and
obtain
a
declaration
of
rights,
status
or
other
legal
relations
thereunder.”
4
mortgagor
or
a
satisfaction
agent
–
which
Staley
clearly
was
not.
See
e.g.
Ala.
Code
§
35-‐10-‐27
and
Ala.
Code
35-‐10-‐90,
et
seq.
Based
on
the
clear
testimony
from
Green
Tree
that
it
did
not
consent
to,
and
played
no
role
in
the
filing
of
the
fraudulent
Release,
this
Court
will
grant
Green
Tree’s
motion
for
summary
judgment.
The
subject
Release
of
Mortgage
recorded
in
the
Mobile
County
Probate
Office
is
rescinded,
null,
void,
and
of
no
effect.
DONE
and
ORDERED
this
the
26th
day
of
January,
2015.
s/Charles
R.
Butler,
Jr.
Senior
United
States
District
Judge
5
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