Dixon v. Farm Credit Bank of Texas

689 So. 2d 135, 1996 Ala. Civ. App. LEXIS 926, 1996 WL 731883
CourtCourt of Civil Appeals of Alabama
DecidedDecember 20, 1996
Docket2950872
StatusPublished
Cited by1 cases

This text of 689 So. 2d 135 (Dixon v. Farm Credit Bank of Texas) 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
Dixon v. Farm Credit Bank of Texas, 689 So. 2d 135, 1996 Ala. Civ. App. LEXIS 926, 1996 WL 731883 (Ala. Ct. App. 1996).

Opinion

SAM A. BEATTY, Retired Justice.

The plaintiffs, William Albert Dixon and Myra Jean Dixon, appeal from a summary judgment entered in favor of the defendant Farm Credit Bank of Texas.1 The trial court made that summary judgment final pursuant to Rule 54(b), Ala. R. Civ. P., and in compliance with this court’s directive in Brown v. Whitaker Contracting Corp., 681 So.2d 226 (Ala.Civ.App.1996). Our supreme court transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975. We affirm.

The Dixons owned approximately 295 acres of land near Browns, Alabama. They lived on the land and used it for farming. The Dixons experienced financial difficulties in the early 1980’s and ultimately filed a bankruptcy petition pursuant to 11 U.S.C. § 1201 et seq. They were involved in bankruptcy proceedings for approximately five years before their case was dismissed as a result of a default in their reorganization plan. Ultimately, the Federal Land Bank, now known as the Farm Credit Bank of Texas (“the Bank”), foreclosed on the property. John W. Kelly III, a lawyer in Selma, conducted the foreclosure sale, at which he offered for sale one parcel of property representing all the land owned by the Dixons. David Pearce purchased the property at the foreclosure sale. Mr. Dixon attended the sale, but he did not participate, nor did he object to the manner in which Kelly conducted the sale.

After the foreclosure, the Dixons filed a complaint alleging that the Bank had improperly conducted the foreclosure sale by not first offering the property in parcels. They also alleged that Pearce had constructed unlawful improvements so as to prevent them from redeeming the property, but those allegations were dismissed. The Dixons appealed the dismissal of their complaint as to Pearce; our supreme court affirmed the dismissal. Dixon v. Pearce, 646 So. 2d 564 (Ala.1994). (Pearce is still involved in this case only because he is considered a necessary party.) The Bank later filed a third-party complaint against Kelly. Other counterclaims and cross-claims have been filed in this case; however, we need not discuss those claims in order to address the questions raised on appeal by the Dixons.

In entering the summary judgment for the Bank, the trial court held that the Dixons were not damaged by the property’s being offered in one parcel, because, it found, the foreclosure sale price was fair and reasonable and because the Dixons could not demonstrate to the court any particular manner in which the property should have been divided into parcels. The court also held that the Dixons were estopped from complaining about the foreclosure sale by their failure to object at the sale.

The Dixons contend that when property in foreclosure is capable of division, one conducting a foreclosure sale has a duty to divide the property into parcels and to offer the parcels for sale before offering the property in its entirety. They also contend that Mr. Dixon’s failure to object at the foreclosure sale was not a waiver of their present complaints about the manner in which the sale was conducted.

Our standard for reviewing a summary judgment is well settled. The summary judgment was proper if there was no genuine issue of material fact and the Bank was entitled to a judgment as a matter of law. Rule 56, Ala. R. Civ. P. The Bank had the burden to make a prima facie showing that no genuine issue of material fact existed and that it was entitled to a judgment as a matter of law. Long v. Jefferson County, 623 So.2d 1130, 1132 (Ala.1993). If the Bank made that showing, then the burden shifted to the Dixons to present evidence creating a genuine issue of material fact, so as to avoid the entry of a judgment against them. Id. In deciding whether there was a genuine issue of material fact, we view the evidence in the light most favorable to the nonmovant and [137]*137resolve all reasonable doubts against the movant. Id. The applicable standard of review is the “substantial evidence” rule. § 12-21-12, Ala.Code 1975. “Substantial evidence” is defined as “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).

The Dixons argue that their property was divided by paved roads into three separate parcels. The majority of the property, approximately 220 acres, lies between Alabama Highway 5 and Dallas County Road 21. Approximately 70 acres is located across County Road 21, and approximately 5 acres is located across Highway 5. The farmhouse, a barn, a workshop, and other outbuildings are located on the 70 acres. When the property was conveyed to the Dixons, the house and five adjoining acres were conveyed separately so that the grantors could defer income tax on the gain from the sale of their residence. When the Dixons mortgaged the property, however, they mortgaged all 295 acres as one parcel. A map of the propei’ty shows that it is one contiguous rectangular area and that none of the land is separated by anything other than the roads traversing it. The buildings and their adjoining acreage are not separated from the remainder of the property by any natural boundaries.

The Dixons argue that Alabama law imposes upon one holding a mortgage with a power of sale a duty to divide property into parcels where it is capable of division, so that the owner of the property may have a chance to redeem or retain a portion of the property. They cite Ames v. Pardue, 389 So.2d 927, 930-31 (Ala.1980) (“the parcels should be offered separately first in order to obtain the highest possible price for the property and to give the mortgagor a chance to retain some of his property”); Lee v. Macon County Bank, 233 Ala. 522, 172 So. 662 (1937), and Bank of New Brockton v. Dunnavant, 204 Ala. 636, 87 So. 105 (1920). The Dixons argue that their property was capable of division by using the roads traversing the property, and that the three resulting parcels should have been offered for sale first. Alternatively, they argue that a separate parcel should have been offered first, that parcel consisting of 5 or 10 acres containing their home and the outbuildings.

The Bank contends that the foreclosure sale was properly conducted and that the trial court properly entered the summary judgment. We agree.

The trial court noted that, according to Ames, before the Dixons can have the foreclosure sale voided, they must show that the trust imposed on the mortgagee has been abused and that they have'been injured by the sale. The Bank points out that Alabama follows the general rule that “the mortgagee, or those standing in his right, ordinarily, may sell the property as described in the mortgage.” Kelly v. Carmichael, 217 Ala. 534, 538, 117 So. 67, 71 (1928). As the trial court found, the subject property “was mortgaged as a single tract described by metes and bounds and title was so held by the Plaintiffs individually and as husband and wife.” Our supreme court has found exceptions to the general rule, but those cases applying exceptions involve platted subdivisions expressly recognized in the mortgage, separate and distinct lots or parcels, or a suggestion of fraudulent or abusive conduct on the part of the mortgagee against one who owned a small portion of a much larger piece of property. See, e.g., Garris v.

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Bluebook (online)
689 So. 2d 135, 1996 Ala. Civ. App. LEXIS 926, 1996 WL 731883, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dixon-v-farm-credit-bank-of-texas-alacivapp-1996.