122 So. 3d 1253
Ala.2013Background
- Promissory note of $2,550,000 (increased to $2,938,718) secured by a mortgage on two Baldwin County parcels, guaranteed by appellants and others.
- Wachovia Bank assigned its interest in the note/mortgage to RCH Mortgage Fund IV; Wolf Bay Partners defaulted; foreclosure occurred.
- Foreclosed property purchased at foreclosure by RCH for $2,000,000; RCH sought deficiency of $1,046,572.31 plus daily interest.
- Trial court excluded evidence of mortgage assignment and set aside the foreclosure/sale, finding wrong party conducted the foreclosure; remanded following this Court’s reversal in RCH IV-WB.
- On remand, the trial court ruled that selling the two parcels en masse impaired redemption but that the mortgage gave sole discretion to sell as an entirety or separately; judgment entered for RCH for $1,046,572.31 plus interest.
- Hackel and Yarbrough moved to alter, amend, or vacate; appeal filed; this Court held the appeal timely and addressed due process concerns under remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of the appeal after remand | RCH argues the appeal was untimely due to a Rule 59(e) filing timing. | Appellants contend the April 4, 2012 Rule 59(e) motion tolled the time; filing continued under remanded docket. | Appeal timely; tolling satisfied. |
| Need for a new trial after remand | RCH asserts judgment on remand was proper without a new trial. | Defendants argued remand required a new trial to follow the appellate mandate. | Judgment on remand proper; no new trial required. |
| Validity of selling both parcels en masse under the mortgage terms | Sale as a single unit complied with mortgage discretion and did not violate due process. | Sale of separate parcels en masse impaired debtor redemption and was improper. | Ruling upholds sale as within mortgagee's discretion; no reversible error on this ground. |
| Due process notice and opportunity to be heard post-remand | Appellants had notice and opportunity to argue post-remand; not denied due process. | Appellants lacked proper procedure and delay denied full opportunity. | Due process satisfied; actions consistent with mandate and notice provided. |
Key Cases Cited
- Ex parte Edwards, 727 So.2d 792 (Ala. 1998) (trial court must follow appellate mandate; no new trial without express authorization)
- Alabama Republican Party v. McGinley, 893 So.2d 337 (Ala.2004) (due process requires notice and meaningful opportunity to be heard)
- Dillard v. Southern States Ford, Inc., 541 So.2d 483 (Ala.1989) (opportunity to argue post-remand decisions; failure to act does not negate notice)
- Ex parte Plumbline Construction, Inc., 992 So.2d 746 (Ala.Civ.App.2008) (Rule 40 notice issues; context for remand proceedings)
- Coker v. Farmers Mutual Exchange, 425 So.2d 489 (Ala.Civ.App.1983) (notice requirements in appeals and post-remand contexts)
- RCH IV-WB, LLC v. Wolf Bay Partners, L.L.C., 78 So.3d 395 (Ala.2011) (remand and assignment issues governing foreclosure and deficiency claims)
- Matthews Bros. Construction Co. v. Stonebrook Development, L.L.C., 854 So.2d 573 (Ala.Civ.App.2001) (notes on remand and trial procedures after appellate decisions)