Ware v. Deutsche Bank National Trust Co., 1100822 (Ala. 6-17-2011)

75 So. 3d 1163, 2011 Ala. LEXIS 91, 2011 WL 2420031
CourtSupreme Court of Alabama
DecidedJune 17, 2011
Docket1100822
StatusPublished
Cited by9 cases

This text of 75 So. 3d 1163 (Ware v. Deutsche Bank National Trust Co., 1100822 (Ala. 6-17-2011)) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ware v. Deutsche Bank National Trust Co., 1100822 (Ala. 6-17-2011), 75 So. 3d 1163, 2011 Ala. LEXIS 91, 2011 WL 2420031 (Ala. 2011).

Opinion

WOODALL, Justice.

Monica Ware appeals from a summary judgment in favor of Deutsche Bank National Trust Company, as trustee for HSI Asset Securitization Corporation 2006-OPT2 Mortgage Pass-Through Certificates, Series 2006-OPT2 (“the trustee”), in the trustee’s ejectment action against her. We affirm.

I. Factual and Procedural Background

The essential facts are undisputed. On May 17, 2008, and for two successive weeks thereafter, a notice was published in the Alabama Messenger, a newspaper published in Birmingham, stating, in pertinent part:

“NOTICE OF FORECLOSURE SALE
“Default having been made in payment in the payment of the indebtedness secured by that certain mortgage executed by Monica S. Ware and spouse, [1165]*1165Gerald James Ware,[1] to Option One Mortgage Corporation on July 29, 2005, said mortgage being recorded in the office of the Judge of Probate of Jefferson County, Alabama, in Instrument No. 200511/1622, and subsequently transferred and assigned to Deutsche Bank National Trust Company as trustee for HSI Asset Securitization Corporation 2006-OPT2 Mortgage Pass-Through Certificates, Series 2006-OPT2; Deutsche Bank National Trust Company as trustee for HSI Asset Securitization Corporation 2006-OPT2 Mortgage Pass-Through Certificates, Series 2006-OPT2, under and by virtue of the power of sale contained in said mortgage, will sell at public outcry to the highest bidder for cash in front of the main entrance of the Jefferson County Courthouse, in Birmingham, Alabama, on June 4, 2008, during the legal hours of sale, the following described real estate, situated in Jefferson County, Alabama. ...
“[Description of property.]
“... This sale is made for the purpose of paying the indebtedness secured by said mortgage, as well as the expense of foreclosure.
“Deutsche Bank National Trust Company as Trustee for HSI Asset Secu-ritization Corporation 2006-OPT2 Mortgage Pass-Through Certificates, Series 2006-OPT2, Transferee.”

(Emphasis added.)

On June 4, 2008, an instrument was executed reading, in pertinent part:

“FORECLOSURE DEED “KNOW ALL MEN BY THESE
PRESENTS, That whereas heretofore on July 29, 2005, Monica S. Ware and spouse, Gerald James Ware, executed a certain mortgage on the property hereinafter described to Option One Mortgage Corporation, which said mortgage was recorded in the Office of the Judge of Probate of Jefferson County, Alabama, as Instrument No. 200511/1622; and
“WHEREAS, in and by said mortgage the mortgagee was authorized and empowered in case of default in the payment of the indebtedness thereby secured according to the terms thereof, to sell said property before the Jefferson County Courthouse door in the City of Birmingham, Alabama, after giving notice of the time, place and terms of said sale in some newspaper published in said city by publication once a week for three consecutive weeks prior to said sale at public outcry for cash to the highest bidder, and said mortgage provided that in case of sale under the power and authority contained in same, the mortgagee or any person conducting said sale for the mortgagee was authorized to execute title to the purchaser at said sale; and it was further provided in and by said mortgage that the mortgagee may bid at the sale and purchase said property if the highest bidder therefor; and
“WHEREAS, default was made in the payment of the indebtedness secured by said mortgage, and the said Option One Mortgage Corporation did declare all of the indebtedness secured by said mortgage due and payable and did give due and proper notice of the foreclosure of said mortgage by publication in the Alabama Messenger, a newspaper published in Jefferson County, Alabama, and of general circulation in Jefferson County, Alabama, in its issues of May 17, May 24, and May 31, 2008; and
[1166]*1166“WHEREAS, on June 4, 2008, the day-on which the foreclosure was due to be held under the terms of said notice, between the legal hours of sale, said foreclosure was duly and properly conducted, and Option One Mortgage Corporation did offer for sale and sell at public outcry in front of the Jefferson County Courthouse in the City of Birmingham, Alabama, the property hereinafter described; and
“WHEREAS, Scott J. Humphrey was the auctioneer who conducted said foreclosure sale and was the person conducting said sale for the said Option One Mortgage Corporation; and
“WHEREAS, the highest and best bid for the property described in the aforementioned mortgage was the bid of Deutsche Bank National Trust Company, as Trustee for HSI Asset Securitization Corporation 2006-OPT2 Mortgage Pass-Through Certificates, Series 2006-OPT2, in the amount of $465,375.00, which sum of money Option One Mortgage Corporation offered to credit on the indebtedness secured by said mortgage, and the said Option One Mortgage Corporation, by and through Scott J. Humphrey, as auctioneer conducting said sale and as attorney-in-fact for Option One Mortgage Corporation, does hereby GRANT, BARGAIN, SELL AND CONVEY unto the said Deutsche Bank National Trust Company, as Trustee for HSI Asset Securitization Corporation 2006-OPT2 Mortgage Pass-Through Certificates, Series 2006-OPT2, the following described property situated in Jefferson County, Alabama, to-wit:
“SEE ATTACHED EXHIBIT ‘A’
“TO HAVE AND TO HOLD the above described property to Deutsche Bank National Trust Company, as Trustee for HSI Asset Securitization Corporation 2006-OPT2 Mortgage Pass-Through Certificates, Series 2006-OPT2, and its successors and assigns; subject, however, to the statutory right of redemption on the part of those entitled to redeem as provided by the laws of the State of Alabama.
“IN WITNESS WHEREOF, Monica S. Ware and Gerald James Ware, and Option One Mortgage corporation have caused this Instrument to be executed by and through Scott J. Humphrey, as auctioneer conducting said sale and as their attorney-in-fact, and Scott J. Humphrey, as auctioneer conducting said sale, has hereto set his hand and seal on this the 4th day of June, 2008.”

On August 29, 2008, the trustee filed a complaint seeking to eject the Wares from the property, pursuant to Ala.Code 1975, § 6-6-280. It claimed to be entitled to immediate possession of the property by virtue of its purchase pursuant to a foreclosure sale. Ware filed her answer to the complaint on June 1, 2009, containing a general denial of all allegations, but stating no affirmative defenses or counterclaims.

On July 9, 2009, the trustee filed a motion for a summary judgment. The motion was accompanied by a copy of the foreclosure deed and the affidavit of Connie White, assistant vice president of the trustee, who verified the deed. She stated that she was “in charge of the books and records of the [trustee] regarding the account made the basis of this action” and that she “ha[d] personal knowledge of the facts set forth in [the] affidavit.” She stated: “[The trustee] avers that by virtue of foreclosure on ... June 4, 2008, of that certain mortgage originally between [the Wares] and [Option One], [the trustee became] the owner of the ...

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Bluebook (online)
75 So. 3d 1163, 2011 Ala. LEXIS 91, 2011 WL 2420031, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ware-v-deutsche-bank-national-trust-co-1100822-ala-6-17-2011-ala-2011.