February 9, 2014
Alabama Court of Civil Appeals Dismisses Homeowner Appeal for Filing Appeal Too Late
In Wolfe v. JPMorgan Chase Bank, N.A., the Alabama Court of Civil Appeals dismissed the appeal of joint homeowners Evan and Kelly Wolfe (“Plaintiffs”) in a foreclosure and attorney fee lawsuit for failing to file the appeal within the statutory time period of 42 days. In Wolfe, Plaintiffs defaulted on their home mortgage and JPMorgan Chase Bank, N.A. (“Chase”), a lienholder, purchased Plaintiffs’ home at a foreclosure sale in February 2010. Regions Bank (“Regions”), another lienholder, redeemed the property from Chase and subsequently filed an ejectment action in the trial court against Plaintiffs.
In March, 2011, the trial court entered a summary judgment in favor of Regions and ordered the Plaintiffs to vacate the property. Plaintiffs appealed and the Court of Civil Appeals affirmed the trial court’s grant of summary judgment in September 2011, and the Alabama Supreme Court denied Plaintiffs’ petition for writ of certiorari to hear their case in March 2012. In February 2012, while Plaintiffs’ certiorari petition was pending, Plaintiffs filed the current lawsuit pro se against Chase, MERS, and their former attorneys from Edith Pickett, Shapiro & Pickett, L.L.P., Beth Rouse, and McFadden, Lyon & Rouse, L.L.C. (“attorney defendants”) alleging claims of fraud and wrongful foreclosure, and they sought an award of damages and “full restoration of all property rights.” The attorney defendants counterclaimed against the Plaintiffs for attorney’s fees.
On September 10, 2012, the trial court granted summary judgment for Chase and the attorney defendants, and reserved jurisdiction to consider the attorney defendants attorney fee claim. Plaintiffs filed a post-judgment motion on October 10, 2012 that was denied on January 8, 2013 and Plaintiffs appealed the decision on February 28, 2013. However, Chase argued that Plaintiffs filed an untimely appeal. The Alabama Court of Civil Appeals agreed with Chase and dismissed Plaintiffs’ appeal as untimely. The Court found that statutory and case law authority required parties to file appeals within 42 days of denial of a motion on the law, such as the post-judgment motion in this case. In Wolfe, the Court found that Plaintiffs had 42 days to file an appeal from the January 8, 2013 denial of their post-judgment motion, which would have required them to file the appeal by February 19, 2013. Instead, Plaintiffs filed their appeal nine days later on February 28, 2013. The Court found that the Plaintiffs failed to comply with the mandatory 42 day filing period and therefore dismissed their appeal as untimely.| Permalink