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Alabama Supreme Court Finds Homeowner's Arguments Against Foreclosure Null - Ware v. Deutsche Bank National Trust Co.

July 20, 2011

As Ontario foreclosure defense attorneys, we frequently represent clients who are challenging foreclosures against them, for substantial reasons as well as technical ones. Technical challenges to foreclosures can work, especially when the lender has a history of submitting false paperwork to the court, but they require plaintiffs to make sure their arguments are solid. That may have been the problem for the homeowner in Ware v. Deutsche Bank National Trust Co. The Alabama Supreme Court ruled in this case that borrower Monica Ware may not reopen her lawsuit against Deutsche Bank, which alleged that it did not have the right to foreclose her family's home.

Ware and her husband, Gerald Ware, bought a home in 2005 and later fell into default. The debt was originally owed to Option One Mortgage Corp., but later assigned and transferred to HSI Asset Securitization Corp., with Deutsche Bank serving as trustee. In mid-May of 2008, a notice of foreclosure sale for the home was published in an Alabama newspaper by Deutsche Bank "as trustee for HSI Asset Securitization Corporation." A later notice said the home was sold by Option One to Deutsche Bank, acting as trustee for HSI. In August, Deutsche Bank sued the Wares to remove them from the home. The following June, Monica Ware filed an answer denying the bank's allegations but raising no defenses, and Deutsche Bank moved for summary judgment in September.

Ware's answer to that motion alleged that the foreclosure was invalid because Option One, not HSI or Deutsche Bank, was the owner of record when Deutsche Bank published the foreclosure sale notice. The court granted summary judgment anyway. Ware then filed a motion to vacate the judgment and asked for a hearing. The court declined to rule on this motion or hold a hearing, and Alabama court rules eventually deemed the motion denied. Ware also filed a counterclaim that was stricken because it was filed after the statute of limitations. She appealed both the summary judgment and the court's refusal to rule on her motion to vacate.

On appeal, Ware argued that summary judgment was inappropriate because there was a genuine issue to decide: whether the foreclosure notice was published by the correct entity. If Deutsche Bank was the correct entity to publish the notice, she argued, Option One could not foreclose; and if not, they had violated Alabama law on notices. However, the Supreme Court said, Ware had never raised those issues in trial court, and thus they were waived on appeal. Furthermore, the court said, the issue Ware did raise in court, that the foreclosure was null and void because of the publication mistake, was absent from her appeal and therefore also waived. Because both sides conceded that the summary judgment issue was the heart of the case, the Supreme Court declined to discuss the counterclaim. And while the trial court may have erred in refusing to rule on Ware's request for a hearing, the Supreme Court found that this was harmless because Ware's arguments were likely without merit. Thus, the high court upheld all of the trial court's rulings.

This case is a good reminder that without an experienced Orange County foreclosure defense lawyer, even a strong claim may fail. The Alabama Supreme Court, and the trial court before it, never had to rule on whether the Wares' foreclosure notice was issued correctly. Because their case was late and did not plead its issues well enough, it was dismissed and the bank almost certainly took possession. This may have been fine if the Wares just wanted to stay in their home longer, but it ultimately did not save their home, and likely cost a lot of money in legal fees. For the best possible chance of saving your home in a court case, it pays to get the help of an experienced Gardena foreclosure defense attorney early in the process.

If you're considering legal action to keep your home out of an unfair or avoidable foreclosure, you should call Howard Law PC for help. For a free, confidential case evaluation, you can send us an email or call 1-800-872-5925.

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