Allen v. Baker

99 So. 3d 324, 2012 Ala. Civ. App. LEXIS 155, 2012 WL 2161629
CourtCourt of Civil Appeals of Alabama
DecidedJune 15, 2012
Docket2101188
StatusPublished
Cited by1 cases

This text of 99 So. 3d 324 (Allen v. Baker) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allen v. Baker, 99 So. 3d 324, 2012 Ala. Civ. App. LEXIS 155, 2012 WL 2161629 (Ala. Ct. App. 2012).

Opinion

BRYAN, Judge.

Monty Allen (“Monty”) and Heather Allen (“Heather”) appeal from a summary judgment in favor of Jim Baker; Charles Lanza; South First Limited One d/b/a RE/ MAX Huntsville (“RE/MAX Huntsville”); Tommy Adams; Victor Englert; Rise Real Estate, Inc. (“Rise”); and Rise Real Estate, Inc., Parkway Plaza Branch (“Rise Parkway”). We affirm.

Factual Background

On March 30, 2006, Joey L. Harrison and Teresa D. Harrison mortgaged a house (“the house”) in Florence. Thereafter, the mortgage was assigned to The Bank of New York Trust Company, N.A., as successor to JP Morgan Chase Bank N.A., as Trustee (“The Bank of New York”). A pooling-and-servicing agreement (“the psa”) existed between The Bank of New York and Homecomings Financial, LLC (“Homecomings”), and, pursuant to the psa, Homecomings began servicing the mortgage when it was assigned to The Bank of New York. Thereafter, the Harrisons defaulted in the payment of the mortgage, and Homecomings initiated foreclosure proceedings on behalf of The Bank of New York in November 2006. The Bank of New York was the highest bidder at the foreclosure sale on December 14, 2006, and the auctioneer executed a foreclosure deed conveying legal title of the house to The Bank of New York.

In the psa, Homecomings had agreed to market the house if The Bank of New York purchased it at a foreclosure sale. Homecomings contracted for Coldwell Banker to assist Homecomings in marketing the house. It appears that Homecomings was an affiliate of GMAC Mortgage, LLC (“GMAC”), and that GMAC may also have participated in marketing the house.

Coldwell Banker, pursuant to authority delegated to it by Homecomings, employed Baker, a licensed real-estate agent who was then with RE/MAX Huntsville, to list the house for sale. Lanza is a licensed real-estate broker with RE/MAX Huntsville.

[327]*327In April 2007, Monty and Heather, who are married, made an offer to purchase the house for $119,000. Monty is an experienced purchaser and seller of real estate. He has held a real-estate license since 1995 or 1996 and was affiliated with RE/ MAX Elite as a real-estate agent from 2002 to 2007. In 2007, he obtained a real-estate broker’s license and became the qualifying and managing broker at RE/ MAX Xperts. By 2007, he had purchased numerous houses that had been the subject of foreclosure sales and were still subject to the mortgagors’ redemption rights when he purchased them. When he and Heather made their April 2007 offer, Monty knew that the house had been purchased by The Bank of New York at a foreclosure sale and that it would be subject to the Harrisons’ right of redemption for a year after the December 14, 2006, foreclosure sale. Monty and Heather’s April 2007 offer stated that Monty “is a licensed realtor in Alabama,” and Monty acted as his and Heather’s real-estate agent in their efforts to purchase the house.

Homecomings did not accept Monty and Heather’s April 2007 offer. Instead, Homecomings made a counteroffer to sell Monty and Heather the house for $125,000, which Monty and Heather accepted. Monty signed a written contract (“the May 2007 contract”) to purchase the house from The Bank of New York on May 17, 2007; Heather did not sign the May 2007 contract. Monty delivered earnest money in the amount of $3,000 to RE/MAX Huntsville; RE/MAX Huntsville deposited the $3,000 in its trust account. Patrick McClain, one of Homecomings’ vice presidents, signed the May 2007 contract on behalf of The Bank of New York on May 24, 2007. The May 2007 contract required that the sale be closed by June 14, 2007, and the closing was scheduled for June 14.

On June 4, 2007, Baker and RE/MAX Huntsville received a letter from Lion & Lamb Investment Recovery, LLC (“Lion & Lamb”), indicating that it had been assigned the Harrisons’ right of redemption and that it intended to redeem the house. That same day, Baker reported to Donna Arrington, an employee of Coldwell Banker who was his contact regarding the house, that Lion & Lamb had given notice that it intended to redeem the house and asked for instructions.

On June 14, 2007, as he was driving to the closing attorney’s office for the closing, Baker learned in a telephone conversation with Arrington that Homecomings had decided to cancel the closing due to Lion & Lamb’s expressing its intent to redeem the house. Homecomings’ Rule 30(b)(6), Ala. R. Civ. P., representative testified in his deposition that it was Homecomings that made the decision to cancel the June 14, 2007, closing, that Baker did not participate in making that decision, and that Homecomings decided to cancel the closing because Lion & Lamb had expressed its intent to redeem the house.

After learning that Homecomings had decided to cancel the closing, Baker proceeded to the closing attorney’s office where the closing attorney informed Monty that Homecomings had canceled the closing because Lion & Lamb had indicated that it intended to redeem the house. Monty responded by stating that he was aware that the house could be redeemed when he signed the May 2007 contract, that it was unlikely that Lion & Lamb would actually redeem the house, and that, if the sale was closed, Lion & Lamb could still redeem the house by redeeming it from him. Monty testified that the closing attorney “finally said, “What if we offer you an extension?’ ” and that Monty had said, “ ‘Okay. That’s fine.’ ” Monty and [328]*328Heather signed a written addendum to the May 2007 contract that provided that “[t]he new closing date shall be 6-26-07,” and Baker signed the addendum as a witness to Monty’s and Heather’s signatures. However, Homecomings’ Rule 30(b)(6) representative testified in his deposition that Homecomings did not accept Monty’s offer to extend the June 14, 2007, deadline for the closing specified in the May 2007 contract, and there is no evidence in the record indicating that the addendum was ever signed by anyone on behalf of The Bank of New York.

Monty testified in his deposition that, a couple of days before June 26, 2007, he telephoned Baker and asked him to schedule another closing and that Baker told him that the seller had not signed the addendum extending the closing. Monty further testified that Baker told him that the house would be sold to him as soon as the right of redemption expired. However, Monty testified that he was aware that, when a real-estate agent represents a property owner who is selling property, it is the property owner rather than the real-estate agent who decides whether to sell the property to a particular purchaser and that the real-estate agent cannot compel the property owner to sell the property to a particular purchaser. Moreover, he admitted that he was not relying on Baker for advice in his efforts to purchase the house.

Monty also testified that Baker told him that the house was going to be taken off the market due to Lion & Lamb’s expressing its intent to redeem the house, that Monty subsequently checked the Multiple Listing Service (“the MLS”), a database of properties listed for sale, to see if the listing for the house had been removed, and that the listing had indeed been removed. After Lion & Lamb expressed its intent to redeem the house, Homecomings coded the house as a “special-marketing” house in its internal records, which meant that the house was not being marketed and that no offers to purchase it would be considered until the special-marketing code was changed.

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99 So. 3d 324, 2012 Ala. Civ. App. LEXIS 155, 2012 WL 2161629, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allen-v-baker-alacivapp-2012.