Steven Chess v. Wade Burt.

87 So. 3d 1201, 2011 Ala. Civ. App. LEXIS 328, 2011 WL 6004626
CourtCourt of Civil Appeals of Alabama
DecidedDecember 2, 2011
Docket2100838
StatusPublished
Cited by2 cases

This text of 87 So. 3d 1201 (Steven Chess v. Wade Burt.) 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
Steven Chess v. Wade Burt., 87 So. 3d 1201, 2011 Ala. Civ. App. LEXIS 328, 2011 WL 6004626 (Ala. Ct. App. 2011).

Opinion

BRYAN, Judge.

Steven Chess appeals from an order granting the summary-judgment motion of Wade Burt.1 We reverse and remand.

Factual Background and Procedural History

On March 17, 2008, Richard A. Gram-mer (“Richard”) and S. Diane Grammer (“Diane”) mortgaged a parcel of real property in Chilton County (“the property”) to Peachtree Bank to secure the payment of a promissory note in the principal amount [1203]*1203of $214,387.63. On January 28, February 4, and February 11, 2010, Peachtree Bank published a notice that the property would be sold at a foreclosure sale on February 18, 2010.

On February 16, 2010, Diane executed a document titled “Assignment of Statutory Right of Redemption from Foreclosure” (“the February 16, 2010, assignment”). In pertinent part, the February 16, 2010, assignment stated:

“This Assignment of Statutory Right of Redemption from Foreclosure ... is made and entered into by and between [Diane] and [Chess] on this the 16th day of FEBRUARY, 2010.
“RECITALS
“WHEREAS, [Diane] owns [the property]; and
“WHEREAS, [the property] is encumbered by a mortgage and is now subject to foreclosure, and [Diane] desires to assign their [sic] statutory right of redemption to [Chess].
“NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other good and valuable consideration, in hand paid to [Diane] by [Chess], [Diane] does hereby grant, bargain, sell, assign, transfer and set over unto [Chess] all of [Diane’s] right of redemption from foreclosure of that certain mortgage executed by RICHARD GRAMMER AND S. DIANE GRAMMER to PEACHTREE BANK on the 17 day of MARCH, 2008 ... together with all other right, title and interest of [Diane] in and to the property...

(Capitalization in original; emphasis added.)

On February 18, 2010, Peachtree Bank held a foreclosure sale. Burt, who bid $300,000, was the highest bidder at the foreclosure sale, and the auctioneer executed a foreclosure deed conveying the property to Burt.

On March 17, 2010, Chess sued Burt, seeking to redeem the property. Chess’s complaint alleged that, by virtue of the February 16, 2010, assignment, Chess was a transferee of Diane’s right to redeem the property and, therefore, had a right to redeem the property under § 6-5-248(a)(5), Ala.Code 1975.2 Chess’s complaint further alleged that he had demanded that Burt provide him with a written statement of the charges to redeem the property and that Burt had failed to respond to that demand within 10 days. In addition, Chess’s complaint alleged that Burt’s failure to respond to Chess’s demand for a written statement of the lawful charges to redeem the property within 10 days had relieved Chess of the obligation to tender payment of the amount required to redeem the property when he filed his complaint and had effected a forfeiture of Burt’s right to compensation for any permanent improvements made to the property since the foreclosure sale.3

[1204]*1204Answering, Burt denied that Chess had a right to redeem the property, denied that Burt had failed to provide Chess with a written statement of lawful charges within 10 days after Burt received Chess’s demand, averred that Burt had provided Chess with a written statement of lawful charges within 10 days after Burt received Chess’s demand, and averred that Chess had not responded to that written statement of lawful charges within the time allowed by Alabama law.

On September 8, 2010, Chess amended his complaint (1) to allege that Burt was claiming that certain charges constituted improvements to the property for which he was entitled to compensation as a condition of redemption and (2) to claim that Burt was not entitled to compensation for those charges.

On December 13, 2010, Chess moved for a summary judgment determining that he was entitled to redeem the property for a total of $800,783.76, which consisted of the $300,000 Burt had paid to purchase the property at the foreclosure sale and recording fees and property taxes Burt had paid. Chess asserted that Burt had forfeited his right to compensation for any permanent improvements made to the property since the foreclosure sale by failing to provide Chess with a written statement of lawful charges within 10 days after Burt had received Chess’s demand for such a statement. Chess supported his summary-judgment motion with his affidavit and an excerpt from Burt’s deposition. Chess’s affidavit stated:

“I am the Plaintiff, Steven Chess, in the above styled case. This matter is a redemption of real estate. I have purchased and obtained the right of redemption from former owner Diane Grammer. I emailed to Wade Burt on March 2 and hand-delivered to his home (accepted by a lady that answered the door) the demand for lawful charges. Further, I sent by certified mailed [sic] a demand for lawful charges to Wade Burt which was signed for on March 3, 2010.4
“I did not receive a response until March 18 which is more than 10 days after my delivery.
“In deposition Mr. Burt states that he went to attorney Bill Latham to prepare a response, and then was sent to attorney Jackson and he signed a letter and left. He did not know when the letter was mailed. Attached hereto as Exhibit ‘A’ to my affidavit is the envelope which was received by me on March 18.
“The purpose of this affidavit is to establish that I did not receive a response to my demand for lawful charges in ten (10) days as provided by law.”

In the excerpt from Burt’s deposition submitted in support of Chess’s motion, Burt testified that he did not receive a letter from Chess at his house and that, because he lived alone, there was no one at his house who could have accepted Chess’s letter in his absence. Burt further testified that his secretary had signed for a letter from Chess that was delivered to Burt’s business address, that he took the letter to an attorney, and that the attorney [1205]*1205prepared and mailed a letter to Chess responding to Chess’s letter. Burt further testified that sometime after he received Chess’s letter he saw Chess at a restaurant and asked him if he would sell his right to redeem the property to Burt. The excerpt from Burt’s deposition does not contain any testimony indicating the date when Burt received Chess’s letter from his secretary.

On January 10, 2011, Burt amended his answer to assert as a defense that the February 16, 2010, assignment was invalid because Diane’s statutory right of redemption did not exist until the mortgage was foreclosed on February 18, 2010, two days after Diane had executed the February 16, 2010, assignment.

On January 14, 2011, Burt filed a pleading in opposition to Chess’s summary-judgment motion in which he asserted that he had responded to Chess’s demand for a written statement of lawful charges on March 10, 2010, and that a genuine issue of material fact existed regarding whether Chess had a right to redeem the property.

On January 18, 2011, the trial court held a hearing regarding Chess’s summary-judgment motion; however, the trial court did not rule on the motion at that time.

On February 7, 2011, Burt filed a counterclaim against Chess.

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Cite This Page — Counsel Stack

Bluebook (online)
87 So. 3d 1201, 2011 Ala. Civ. App. LEXIS 328, 2011 WL 6004626, Counsel Stack Legal Research, https://law.counselstack.com/opinion/steven-chess-v-wade-burt-alacivapp-2011.