author: PITTMAN, Judge.

text:
    Brenda F. CAMPBELL and C.W. Campbell v. BANK OF AMERICA, N.A.
    2100246.
    Court of Civil Appeals of Alabama.
    June 22, 2012.
    Certiorari Denied Sept. 13, 2013 Alabama Supreme Court 1111284.

      Kenneth J. Lay, Birmingham, for appellants.
    John T. Bender, Mobile, for appellee.
   On Application for Rehearing

PITTMAN, Judge.

This court’s opinion of March 30, 2012, is withdrawn, and the following is substituted therefor.

Brenda F. Campbell and her son, C.W. Campbell, appeal from a judgment in favor of Bank of America, N.A. (“Bank of America”), in an ejectment action. We affirm.

Facts and Procedural History

The Jefferson Circuit Court’s judgment recites the following facts:

“The parties entered into a mortgagor/mortgagee relationship based on a mortgage and note, which originated on June 10, 1998. Subsequently, the [Campbells] experienced financial difficulties, and the loan was accelerated in 2004 as a result of default for nonpayment. Over the next two years, the evidence shows that [Bank of America] initiated a number of loss-mitigation procedures as well as other actions designed to help the [Campbells] avoid foreclosure. These actions were unsuccessful, and although [Bank of America] set a date for a foreclosure sale in late 2006, the [Campbells] stayed the sale by filing a Chapter 13 bankruptcy petition. Over the next two years, numerous bankruptcy petitions were filed, further delaying foreclosure proceedings. [Bank of America] was granted relief from the stay of the foreclosure sale in June of 2008, and notice of the sale was again given to the [Campbells]. The foreclosure sale took place on September 3, 2008, at which time [Bank of America] took title.
“At trial, the [Campbells] did not dispute the fact that they were in default; rather, they argued that [Bank of America] failed to comply with [United States Department of Housing and Urban Development] regulations regarding loss-mitigation procedures, and that the foreclosure sale was therefore wrongfully initiated. Specifically, the [Campbells] alleged that [Bank of America] was guilty of noncompliance by failing to both 1) offer all possible loss-mitigation programs to [them] before beginning foreclosure proceedings, and 2) reinitiate loss-mitigation efforts after the relief from stay was granted and before foreclosure proceedings were resumed.”

Following a bench trial, the circuit court entered a judgment determining that the United States Department of Housing and Urban Development (“HUD”) loss-mitigation procedures were mandatory, that Bank of America had substantially complied with those procedures, and that Bank of America had established its right to eject the Campbells from the property. The Campbells filed a timely postjudgment motion and requested a hearing on that motion. The circuit court set a date for a hearing, but it denied the motion before the hearing was held. The Campbells timely appealed. The supreme court subsequently transferred the appeal to this court pursuant to Ala.Code 1975, § 12-2-7(6).

Standard of Review

“ ‘ “Where evidence is presented to the trial court ore tenus, a presumption of correctness exists as to the court’s conclusions on issues of fact; its determination will not be disturbed unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence.” ’ Pollard v. Unus Props., LLC, 902 So.2d 18, 23 (Ala.2004) (quoting American Petroleum Equip. & Constr., Inc. v. Fancher, 708 So.2d 129, 132 (Ala.1997)). ‘However, as to issues of law, ... “ ... our review is de novo.” Padgett v. Conecuh County Comm’n, 901 So.2d 678, 685 (Ala.2004) (quoting Alfa Mut. Ins. Co. v. Small, 829 So.2d 743, 745 (Ala.2002)).”

Weeks v. Wolf Creek Indus., Inc., 941 So.2d 263, 268-69 (Ala.2006).

Discussion

I.

The Campbells argued in the circuit court and they now maintain on appeal that Bank of America’s alleged noncompliance with HUD loss-mitigation alternatives to foreclosure constitutes a defense to a foreclosure action. An ejectment action following a nonjudicial foreclosure, however, is not a “foreclosure action,” and a defense in such an action asserting errors in the foreclosure process is a collateral attack on a foreclosure. See Dewberry v. Bank of Standing Rock, 227 Ala. 484, 493, 150 So. 463, 470 (1933) (characterizing the action in Jones v. Hagler, 95 Ala. 529, 10 So. 345 (1891), in which the plaintiff sought possession of certain property he had purchased from a trustee, who had sold the property pursuant to a power of sale in a deed of trust, and in which the defendant had asserted irregularities in the sale, as “a statutory action in the nature of ejectment — an indirect or collateral attack upon the foreclosure of real and personal property sold by a trustee, under the power [of sale in a deed of trust]” (some emphasis in original; some emphasis added)). Accord Pinkert v. Lamb, 215 Ark. 879, 883, 224 S.W.2d 15, 17 (1949) (stating that an ejectment action is a “collateral attack by appellees on the ... foreclosure decree and sale ..., and the burden [is] on them to prove such defects therein as would render the sale and decree void”); Dime Sav. Bank, FSB v. Greene, 2002 Pa.Super. 392, 813 A.2d 893, 895 (2002) (stating that “[a]n ejectment action is a proceeding collateral to that under which the land was sold” and that, “where it is claimed that [an] underlying default judgment [in a judicial-foreclosure action] is merely voidable, that claim will not be entertained because such a judgment can not be reached collaterally”).

In a direct attack on a foreclosure — that is, an action seeking declaratory and injunctive relief to halt the foreclosure sale before it occurs see, e.g., Ferguson v. Commercial Bank, 578 So.2d 1234 (Ala.1991); Bank of Red Bay v. King, 482 So.2d 274 (Ala.1985); and Woods v. SunTrust Bank, 81 So.3d 357 (Ala.Civ.App.2011), or an action to set aside the sale after it has occurred, see, e.g., Beal Bank, SSB v. Schilleci, 896 So.2d 395 (Ala.2004); Kelly v. Carmichael, 217 Ala. 534, 536, 117 So. 67, 69 (1928); and Browning v. Palmer, 4 So.3d 524 (Ala.Civ.App.2008) — any circumstance in the foreclosure process that would render the foreclosure sale void or voidable may be asserted. In a proceeding involving a collateral attack on a foreclosure, however, only those circumstances that would render the foreclosure sale void may be raised as an affirmative defense.

“[T]he true distinction between void and voidable acts, orders, and judgments, is, that the former can always be assailed in any proceeding, and the latter, only in a direct proceeding.” Alexander v. Nelson, 42 Ala. 462, 469 (1868). See, e.g., Carlton v. Owens, 443 So.2d 1227, 1231 (Ala.1983) (stating that “[t]he only remedy available to a defendant subject to a voidable judgment is a direct appeal from that judgment; a collateral attack is not allowed”); City of Dothan v. Dale Cnty. Comm’n, 295 Ala. 131, 324 So.2d 772 (1975) (holding that, because city’s annexation of county land was, at most, voidable, opponents could not attack the annexation in a collateral proceeding); 23 Am.Jur.2d Deeds § 162 (2002) (stating that “[a] voidable deed must be attacked, if at all, directly, but a deed that is void may be collaterally attacked by anyone whose interest is adversely affected by it” (footnote omitted)).

One commentator has identified three types of flaws in the foreclosure process: those that will render the foreclosure sale void; those that will render the sale merely voidable; and those that are insignificant.

“[Wjhen the power [of sale in a mortgage] is exercised in violation of the laws or of the security instrument terms, questions arise as to whether compliance with the laws or instrument provisions is a prerequisite for the exercise of the power so that the purported sale is utterly void, or whether the violation is merely sufficiently egregious as to produce a voidable sale, or whether it is so insignificant as to have no impact on the sale.”
“Courts frequently speak of flaws in [nonjudicial-foreclosure] sales so serious that they produce a void sale.... What the courts mean in denominating a sale as void is that adversely affected parties may have a sale set aside even though the property passed into the hands of a bona fide purchaser. In this sense of the term, there are very few void sales. Most of the cases in which a sale to a bona fide purchaser was set aside involved sales by trustees or mortgagees who lacked the power to sell.”

12 Thompson on Real Property §§ 101.04(c)(2) and 101.04(c)(2)(i) at 401-02 (Thomas ed.1994) (footnotes omitted).

“Where a defect is not so egregious as to make the sale utterly void but not so inconsequential as to be overlooked, the sale will be voidable; that is, it can be set aside at the request of an injured party so long as the legal title has not moved to a bona fide purchaser. This follows from the traditional common law rule that a subsequent bona fide purchaser of a legal title takes free of hidden equities. The right of an injured party to set aside a deed because of flaws that produce only a voidable title is an equitable right cut off by transfer to a bona fide purchaser.”

Id., § 101.04(c)(2)(ii) at 403.

In Alabama, the following circumstances may render a foreclosure sale void: (1) when the foreclosing entity does not have the legal right to exercise the power of sale, as, for example, when that entity is neither the assignee of the mortgage, Sturdivant v. BAC Home Loans Servicing, LP, [Ms. 2100245, December 16, 2011] — So.3d - (Ala.Civ.App.2011), nor the holder of the promissory note, Perry v. Federal Nat’l Mortg. Ass’n 100 So.3d 1090 (Ala.Civ.App.2012), at the time it commences the foreclosure proceedings; (2) when “the debt secured by the mortgage was fully paid prior to foreclosure,” Lee v. Gaines, 244 Ala. 664, 666, 15 So.2d 330, 331 (1943); (3) when the foreclosing entity failed to give notice of the time and place of the foreclosure sale, Sanders v. Askew, 79 Ala. 433 (1885), but see Kelley Realty Co. v. McDavid, 211 Ala. 575, 577, 100 So. 872, 873-74 (1924) (stating that “a distinction must be made between cases where there is no sort of compliance with the requirement of advertisement or other notice of the sale, and cases where there is actually given some notice of the nature required, sufficient to give public information of the pendency and date of the sale, though it be ever so defective or incomplete,” and that “[i]n the latter class of cases the foreclosure sale will not be void, but voidable only to the election of the mortgagor, properly and seasonably asserted”); and (4) when the purchase price paid is “ ‘so inadequate as to shock the conscience, it may itself raise a presumption of fraud, trickery, unfairness, or culpable mismanagement, and therefore be sufficient ground for setting the sale aside,’ ” Hayden v. Smith, 216 Ala. 428, 430,113 So. 293, 295 (1927).

No court has ever held that a mortgagee’s failure to comply with HUD loss-mitigation procedures renders a foreclosure sale void. The courts of other jurisdictions have held either (1) that the HUD regulations are conditions precedent that must be complied with before a mortgagee has the right to foreclose on a HUD-insured property and, therefore, that the mortgagee’s noncompliance can be asserted as an affirmative defense to a judicial-foreclosure action, see, e.g., Lacy-McKinney v. Taylor, Bean & Whitaker Mortg. Corp., 937 N.E.2d 853, 864 (Ind.Ct.App.2010); or (2) that a mortgagee’s failure to comply with HUD regulations may be asserted as an equitable defense in a pre-foreclosure action seeking injunctive relief to forestall a foreclosure sale or in a post-foreclosure action to set aside the sale, see, e.g., Wells Fargo Home Mortg., Inc. v. Neal, 398 Md. 705, 922 A.2d 538 (2007) (holding that because foreclosure is an equitable remedy, a mortgagor may assert the equitable defense of the mortgagee’s failure to engage in the loss-mitigation procedures mandated by federal regulations and a court may prohibit a foreclosure sale until the mortgagee has complied with those regulations). Because an ejectment action following a nonjudicial foreclosure is not a judicial-foreclosure action, or an action for injunctive relief to forestall a foreclosure, or an action to set aside a foreclosure sale, the Campbells may not assert Bank of America’s alleged failure to comply with loss-mitigation procedures as a defense in an ejectment proceeding. We need not address whether the circuit court’s factual determination — that Bank of America had substantially complied with the HUD-mandated loss-mitigation procedures — is “clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence,” Weeks, supra. Instead, we affirm the circuit court’s judgment, as a matter of law, on another, more fundamental, basis: that the irregularity of which the Campbells complain, which irregularity might render the foreclosure sale merely voidable, may not be asserted as a defense to an ejectment action.

In Coleman v. BAC Servicing, 104 So.3d 195, 206 (Ala.Civ.App.2012), the mortgagor argued that the foreclosing entity’s failure to explore loss-mitigation measures was a defense to an ejectment action. This court stated:

“In support of her argument, Coleman cites a number of decisions from other jurisdictions indicating that the failure to explore loss-mitigation actions as an alternative to foreclosure is an equitable defense to a foreclosure action. The cases upon which Coleman relies do, in fact, contain such statements, but the statements are in the context of judi-daZ-foreclosure actions by mortgagees, or in pre-foreclosure actions by mortgagors seeking declaratory or injunctive relief, not in the context of nonjudicial-foreclosure actions pursuant to a power of sale in a mortgage instrument or post-foreclosure ejectment actions. See, e.g., Federal Nat’l Mortg. Ass’n v. Moore, 609 F.Supp. 194 (N.D.Ill.1985) (judicial foreclosure); ABN AMRO Mortg. Group, Inc. v. Tullar, 770 N.W.2d 851 (Iowa Ct.App.2009) (table) (decision without a published opinion) (judicial foreclosure); Wells Fargo Home Mortg., Inc. v. Neal, 398 Md. 705, 922 A.2d 538 (2007) (pre-foreclosure action by mortgagor seeking declaratory and injunctive relief); and Federal Land Bank of St. Paul v. Overboe, 404 N.W.2d 445, 449 (N.D.1987) (judicial foreclosure). ‘[I]t is generally recognized under Alabama law that a power of sale given under a mortgage affords the mortgagee an additional and more speedy remedy for recovery of the debt.’ Johnson v. Shirley, 539 So.2d 165, 168 (Ala.1988) (citing Paint Rock Props, v. Shewmake, 393 So.2d 982, 984 (Ala.1981)). In the absence of a statute or controlling authority from our supreme court to the contrary, we conclude that the failure of a foreclosing entity to comply with HUD or [United States Department of Veterans Affairs] loss-mitigation requirements may not be raised as a defense to an ejectment action following a nonjudicial foreclosure.”

104 So.3d at 206. In the present case, the Campbells cite the same authorities that were cited and distinguished in Coleman. Perhaps recognizing the distinction made in Coleman, the Campbells cite an additional, unreported California decision for the proposition that “a property owner facing a nonjudicial foreclosure [may] assert a lender’s failure to apply the mandatory loss mitigation procedures” as a defense. Ghervescu v. Wells Fargo Home Mortg., (No. E041809, March 13, 2008) (Cal.Ct.App.2008) (unpublished). Gherves-cu does not support the position that a loss-mitigation defense may be asserted in an ejectment action following a foreclosure. Ghervescu was not an ejectment action; the mortgagor in that case sought an injunction to restrain delivery of the trustee’s deed and to set aside a foreclosure sale. The California Court of Appeals stated:

“We see no reason that a property owner facing a nonjudicial foreclosure should not be able to assert a lender’s failure to apply the mandatory loss mitigation procedures defensively, either to preclude or to set aside a foreclosure sale. Where no sale has taken place, a court may preclude the sale until the lender complies with the [Federal Housing Administration’s] loss mitigation procedures. Or, if the sale has taken place, the court may set the sale aside.... ”

A. The Campbells contend that, unlike the mortgage instrument at issue in Coleman, their Federal Housing Administration (“FHA”) mortgage contract “has specific provisions incorporating the [HUD] regulations and specific provisions which prohibit foreclosure if federal law and regulations are not followed.” The Camp-bells’ mortgage contract states in ¶ 9(d):

“Regulations of HUD Secretary. In many circumstances, regulations issued by the Secretary will limit Lender’s rights, in the case of payment defaults, to require immediate payment in full and foreclose if not paid. This Security Instrument does not authorize acceleration or foreclosure if not permitted by regulations of the Secretary.”

In Wells Fargo Home Mortgage, Inc. v. Neal, supra, a leading ease on the issue of a mortgagor’s ability to assert the mortgagee’s noncompliance with HUD loss-mitigation regulations, Neal, the mortgagor, filed a pre-foreclosure action seeking in-junctive relief to block the foreclosure sale and damages for an alleged breach of contract based on the loan servicer’s asserted violation ¶ 9(d) of the FHA form mortgage contract (which paragraph is identical to the corresponding provision in the Camp-bells’ mortgage contract). Maryland’s highest court held that the mortgagor “may not advance, as an affirmative cause of action, a State law contract claim based on an asserted breach of the HUD regulations alluded to in his FHA form deed of trust, but may raise a violation of the regulations in pursuit of an injunction blocking foreclosure.” 398 Md. at 711, 922 A.2d at 541. In deciding that the mortgagor had no private cause of action against the mortgagee for a violation of ¶ 9(d), the Maryland court looked to 24 C.F.R. § 203.500, which “provides that noncompliance with the FHA mortgage servicing regulations empowers the Secretary of HUD to impose a ‘civil money penalty, ... or withdrawal of HUD’s approval of a mortgagee.’ ” 398 Md. at 719, 922 A.2d at 546. The court concluded that such an “enforcement scheme comports with the notion that the regulations enacted pursuant to the [National Housing Act of 1934, 12 U.S.C. § 1701 et seq.,] were intended to govern the relationship between the mortgagee and the government rather than, as Neal would have it, the mortgagee and the mortgagor.” Id. The court explained:

“The overall purpose of the FHA mortgage insurance program is to encourage leading lenders, in exchange for a government guarantee of the loan, to extend mortgages to those carrying higher credit risks. The regulations setting forth the rules and procedures for the program, including the loss mitigation regulations pointed to by Neal and alluded to in paragraph 9(d) of the deed, address how participating lenders are to conduct their activities. Thus, the regulations do not control directly the relationship between the mortgagor and mortgagee and may not be invoked by the mortgagor as a sword in an offensive cause of action against the mortgagee....
“The language of the regulations bear this out. With respect to mitigating losses, ‘[m]ortgagees must consider the comparative effects of their elective servicing actions, and must take those appropriate actions which can reasonably be expected to generate the smallest financial loss to the Department.’ 24 C.F.R. § 203.501. The emphasis on reducing the possible losses to HUD, rather than the mortgagor, demonstrates that the regulations exist primarily to govern the relationship between the government and the mortgagee. This is logical in light of the fact that HUD, by guaranteeing the mortgages under the program, has a considerable stake in the administration of the insured mortgages. Therefore, it uses the regulations to protect its interests and manage the program. Section 203.502(a) of Title 24 of the Code of Federal Regulations also illustrates this point by declaring that mortgagees and servicers are ‘fully responsible to the Secretary for proper servicing.’ Notably, the regulation does not address that the mortgagees’ and servicers’ are responsible to the mortgagors.”

398 Md. at 719-20, 922 A.2d at 546-47. Accord Moses v. Banco Mortg. Co., 778 F.2d 267, 272 n. 2 (5th Cir.1985); Hayes v. M & T Mortg. Corp., 389 Ill.App.3d 388, 391, 329 Ill.Dec. 440, 906 N.E.2d 638, 642 (2009).

Neal argued that he had no effective opportunity to assert a noncompliance defense in Maryland because, he said, the jurisdictions that had recognized such a defense had considered it an equitable one to be raised in a judicial-foreclosure proceeding and, he said, judicial foreclosures were rare in Maryland, with most foreclosures being based on the power-of-sale provisions in a mortgage instrument. The Maryland court rejected that argument, stating: “[W]e are of the opinion that the violations of the HUD mortgage servicing regulations alleged ... by Neal may be asserted effectively as an affirmative defense within the injunctive relief apparatus provided in Rule 14-209(b)(l), [Md. Rules, ‘Injunction to Stay Foreclosure’].” 398 Md. at 727, 922 A.2d at 551 (footnote omitted).

Neal had, in fact, utilized the very avenue of relief to which the Maryland court alluded. In the present case, the Camp-bells had the same avenue of relief available to them. As previously discussed, Alabama recognizes that an affirmative defense to an allegedly void or voidable foreclosure may be asserted in both pre-fore-closure actions to block a foreclosure sale see, e.g., Ferguson v. Commercial Bank, supra; Bank of Red Bay v. King, supra; and Woods v. SunTrust Bank, supra; and in post-foreclosure actions to set aside a foreclosure sale see, e.g., Beal Bank, SSB v. Schilleci, supra; Kelly v. Carmichael, supra; and Browning v. Palmer, supra. Alabama law does not, however, recognize that an affirmative defense to an allegedly voidable foreclosure sale may be asserted in a collateral proceeding such as an ejectment action.

B. The Campbells cite Berry v. Deutsche Bank National Trust Co., 57 So.3d 142 (Aa.Civ.App.2010), and Hawkins v. LaSalle Bank, N.A., 24 So.3d 1143 (Aa.Civ.App.2009), overruled on another ground, Berry, supra, as standing for the proposition that a mortgagor may raise irregularities in the foreclosure process as an affirmative defense to an ejectment action. Berry and Hawkins cannot be read so broadly. Not all irregularities in the foreclosure process, but only those irregularities that would render the foreclosure sale void, may be raised as affirmative defenses to an ejectment action.

In Berry, a majority of this court reversed a summary judgment in favor of the mortgagee, holding that there was a genuine issue of material fact as to whether “the foreclosure sale was invalid on the ground that the price realized at the foreclosure sale was so low in relation to the market value of the property as to shock the conscience, which would constitute an affirmative defense to [the mortgagee’s] ejectment claim.” 57 So.3d at 149. That holding is consistent with the general principle previously discussed that, if the purchase price is so inadequate as to shock the conscience and raise a presumption of fraud, the inadequacy is a circumstance that may render the foreclosure sale void in Aabama. See Hayden v. Smith, supra.

In Hawkins, this court held that there was a genuine issue of material fact as to whether the collective sale at foreclosure of three parcels of land hampered the mortgagor’s ability to redeem the one parcel on which he was residing. Our opinion analyzed a long line of Aabama cases (a) indicating that a sale in parcels or lots is desirable because it “ ‘opens a field to a greater number of bidders, is conducive to a better price, tends to prevent odious speculation upon the distress of the debtor, and enables him to redeem some of the property without being compelled to redeem it all,”’ Hawkins, 24 So.3d at 1149 (quoting J.H. Morris, Inc. v. Indian Hills, Inc., 282 Aa. 443, 455, 212 So.2d 831, 843 (1968)), and (b) holding, for the most part, that an en masse sale that causes injury to the mortgagor violates the mortgagee’s duty of fairness and good faith in executing the power of sale and is, therefore, sufficient to invalidate the sale and the foreclosure deed. But see Rudisill v. Buckner, 244 Ala. 653, 655, 15 So.2d 333, 334-35 (1943) (stating that, “[i]n the absence of [a] statute to the contrary, the effect of a sale of mortgaged property at foreclosure under the power of sale in the mortgage en masse or en bloc under circumstances where it is to the interest of the mortgagor debtor to have it sold in separate parcels or tracts, is not to render the sale void, but irregular and voidable on direct attack”). In Hawkins, we concluded that, if the foreclosure sale and foreclosure deed were invalid, then the mortgagee’s assignee had no standing to bring the ejectment action. In Berry, we overruled Hawkins to the extent that it held that the ejectment plaintiffs standing was implicated, and we determined that the alleged invalidity of the sale and the deed constituted an affirmative defense to the ejectment action. Berry, 57 So.3d at 149-50. Hawkins, therefore, is the most recent in a line of Alabama cases that appears to point toward there being a fifth circumstance that will render a foreclosure sale void in Alabama: when an en masse sale injures the mortgagor and violates the mortgagee’s duty of fairness and good faith in executing the power of sale. Accordingly, we conclude that Berry and Hawkins are consistent with the general principle that irregularities in the foreclosure process that would render the foreclosure sale void may be raised as affirmative defenses to an ejectment action.

II.

The circuit court’s failure to hold a hearing on the Campbells’ postjudgment motion was harmless error because the motion had no probable merit and this court has resolved the issues presented therein, as a matter of law, adversely to the Campbells. See Ware v. Deutsche Bank Nat’l Trust Co., 75 So.3d 1163, 1172 (Ala.2011) (citing Hollander v. Nichols, 19 So.3d 184, 197 (Ala.2009); Kitchens v. Maye, 623 So.2d 1082, 1088-89 (Ala.1993); and Greene v. Thompson, 554 So.2d 376, 381 (Ala.1989)).

The judgment of the Jefferson Circuit Court is affirmed.

APPLICATION GRANTED; OPINION OF MARCH 30, 2012, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

THOMPSON, P.J., and BRYAN, THOMAS, and MOORE, JJ., concur.

      . The opinion on original submission in Coleman was issued on February 3, 2012. Today, we are withdrawing the opinion on original submission in Coleman and substituting a new opinion. The holding and language relied upon from Coleman in this opinion has not changed.


source: Caselaw Access Project

license: Public Domain

text:
    Tobias Anjuan PAYNE v. CITY OF DECATUR.
    2110919.
    Court of Civil Appeals of Alabama.
    April 19, 2013.
    Rehearing Denied June 14, 2013.
    Certiorari Denied Sept. 13, 2013 Alabama Supreme Court 1121137.

      Joe M. Reed of Joe M. Reed & Associates, LLC, Montgomery, for appellant.
    Jon R. Sedlak, Decatur, for appellee.
   PITTMAN, Judge.

Tobias Anjuan Payne appeals from a summary judgment in favor of the City of Decatur (“the City”) in his quasi in rem action seeking the return of $36,030 seized from him by an officer of the Decatur Police Department (“the DPD”). We affirm.

Facts and Procedural History

On September 1, 2006, officer Archie Letson, a member of the DPD, participated in a raid organized by the Morgan County Drug Task Force at a residence in Decatur. Upon entering the residence, the members of the task force encountered Payne and other individuals. During a pat-down search of Payne, Morgan County sheriff’s deputies seized $3,605 from Payne’s pockets. Payne was detained in police custody while Officer Letson obtained a warrant from the Decatur Municipal Court to search Payne’s residence. Upon execution of that warrant, officers discovered evidence indicating cocaine trafficking and crack-cocaine production and $36,030 in cash. Officer Letson seized the cash and, several days later, transferred it to a United States marshal at the request of Special Agent Fred Gasbarro of the Drug Enforcement Administration (“the DEA”), who had also been investigating Payne for illegal drug activities.

On February 28, 2007, civil-forfeiture in rem proceedings were commenced in the United States District Court for the Northern District of Alabama against the $36,030 in cash discovered at Payne’s residence (“the property”). Payne was served with the forfeiture complaint on April 3, 2007. On September 16, 2009, Payne, acting through counsel, withdrew his claim to the property and consented to its forfeiture. On September 23, 2009, the federal district court entered a default judgment of forfeiture. On April 26, 2010, the United States marshal’s office made payments totaling $15,727.42 to the DPD, pursuant to “equitable sharing” programs of the DEA.

On November 9, 2011, Payne filed in the Morgan Circuit Court (“the trial court”) a complaint against the City, seeking the return of the property. Payne asserted that the property had been seized pursuant to § 20-2-93, Ala.Code 1975, and that he was entitled to the return of the property because no state forfeiture proceeding had been promptly initiated as required by § 20-2-93(c). The City moved to dismiss the complaint and attached to its motion documents relating to the in rem forfeiture proceeding in the federal district court.

Payne filed a response to the City’s motion, asserting that the federal court could not validly have assumed in rem jurisdiction over the property because, he insisted, the property was subject to the preexisting in rem jurisdiction of the state court by virtue of the warrant issued to search his residence. Payne attached to his response the search warrant, the affidavit for the warrant, and the return on the execution of the warrant.

The trial court notified the parties that, because they had presented, and it had considered, matters outside the pleadings, it would treat the City’s motion to dismiss as one for a summary judgment. Payne filed a cross-motion for a summary judgment. Following a hearing, the trial court granted the City’s motion for a summary judgment, denied Payne’s motion, and dismissed Payne’s complaint for lack of subject-matter jurisdiction, stating the following:

“[T]he court has reviewed the pleadings, the evidentiary materials, and the legal authorities submitted by the parties and also has considered the arguments of counsel. There are no genuine issues of material disputed fact. [Payne] filed this action for return of seized property (money) after a United States District Court had already acquired and exercised in rem jurisdiction and had entered an order that condemned and forfeited the property in question. As a matter of law, this court has no jurisdiction over the subject matter of this action.”
Standard of Review
“An order granting or denying a summary judgment is reviewed de novo, applying the same standard as the trial court applied. American Gen. Life & Accident Ins. Co. v. Underwood, 886 So.2d 807, 811 (Ala.2004). In addition, ‘[t]his court reviews de novo a trial court’s interpretation of a statute, because only a question of law is presented.’ Scott Bridge Co. v. Wright, 883 So.2d 1221, 1223 (Ala.2003). Where, as here, the facts of a case are essentially undisputed, this Court must determine whether the trial court misapplied the law to the undisputed facts, applying a de novo standard of review. Carter v. City of Haleyville, 669 So.2d 812, 815 (Ala.1995).”

Continental Nat’l Indem. Co. v. Fields, 926 So.2d 1083, 1084-35 (Ala.2005).

Discussion

In all material respects, this case is identical to Ervin v. City of Birmingham, 137 So.3d 901 (Ala.2013). Ervin’s cash was seized pursuant to a search warrant issued by a state court; the municipal police department transferred the cash to the DEA; the United States filed a complaint in federal district court seeking forfeiture of the cash; Ervin was served with notice of the federal forfeiture proceeding; Ervin moved to withdraw his claim for the cash and consented to its forfeiture; the federal district court entered a final judgment forfeiting the cash to the United States; the municipality ultimately received a share of the cash pursuant to DEA’s “equitable sharing” program; and Ervin subsequently filed a complaint in an Alabama circuit court seeking the return of the cash and advancing the same arguments that Payne has advanced here.

In Ervin, the circuit court entered a summary judgment in favor of the municipality, concluding “that the federal district court had ‘properly exercised jurisdiction’ over the cash because § 20-2-93 did not prohibit the City from transferring the cash to the United States in order to institute forfeiture proceedings.” 137 So.3d at 904. The Supreme Court of Alabama affirmed, stating that “Ervin’s action [seeking the return of the cash] amounts to a collateral attack in state court on a final judgment entered by a federal court.... As the successor in title to the forfeited property, the [municipality] is entitled to the res judicata benefit of that final judgment.” 137 So.3d at 905.

In rejecting Ervin’s arguments that the cash had been seized pursuant to a state search warrant and that municipal law-enforcement officials had improperly transferred the cash to federal officials, our supreme court stated:

“Even if all these contentions were correct, they amount only to an attack on the authority of the federal district court to exercise jurisdiction over the res in an in rem action, not an attack on the subject-matter jurisdiction of the federal court over a forfeiture action brought under federal law. As such, they come too late and are being advanced in the wrong court. See Porsche Cars North America, Inc. v. Porsche.net, 302 F.3d 248, 256 (4th Cir.2002) (distinguishing between objections to subject-matter jurisdiction and objections to a court’s exercise of jurisdiction over the res in an in rem action, and explaining that, as with in personam jurisdiction, ‘in ... civil forfeiture cases, for years courts have held that objections to in rem jurisdiction may be waived’ and citing cases in support); United States v. Nineteen Thousand Eight Hundred Fifty Five ($19,855.00) Dollars in United States Currency (Ms. 2:12-CV-146-WKW, Nov. 19, 2012) note 6 and accompanying text (M.D.Ala.2012) (not selected for publication in F.Supp.3d)(explaining that objections to in rem jurisdiction may be waived if not timely asserted).”

Ervin, 137 So.3d at 905 (emphasis added).

Based on the authority of Ervin, we affirm the judgment of the trial court. That court reached the right result, notwithstanding the fact that it mistakenly concluded that it had “no jurisdiction over the subject matter of this action” after “a United States District Court had ... acquired and exercised in rem jurisdiction and had entered an order that condemned and forfeited the property in question.”

“An appellate court may affirm the judgment of the trial court when the trial court has reached the. right result for the wrong reason. However, this rule should not apply where the ‘wrong reason’ prevented a party from properly presenting his case or prejudiced his rights.” Lloyd Noland Found., Inc. v. HealthSouth Corp., 979 So.2d 784, 796 (Ala.2007) (citation omitted). In the present case, the City argued the doctrine of res judicata as a basis for dismissing Payne’s action. Payne responded to that argument, and he was not prevented in any way from presenting his case; nor were his rights prejudiced.

We acknowledge that the trial court’s mistaken conclusion that it lacked subject-matter jurisdiction over Payne’s quasi in rem action was mostly likely prompted by this court’s decision in Ex parte Bingham, 129 So.3d 1017 (Ala.Civ.App.2012). In Bingham, we issued a writ of mandamus directing the Montgomery Circuit Court “to dismiss for lack of subject-matter jurisdiction,” 129 So.3d at 1021, the claimants’ action seeking the return of cash that had been seized from them, transferred to the DEA, and forfeited to the United States. We concluded that the circuit court had no subject-matter jurisdiction of the claimants’ quasi in rem action “[bjeeause a federal court had already acquired (and exercised) in rem jurisdiction over the claimants’ property at the time the claimants filed an in rem proceeding in the Montgomery Circuit Court,” Bingham, 129 So.3d at 1021.

As Ervin makes clear, however, this court employed an incorrect subject-matter-jurisdiction rationale for granting the petition and issuing the writ; the claimants’ action was due to be dismissed, instead, because the municipality was “entitled to the res judicata benefit” of the federal court’s final judgment of forfeiture. 137 So.3d at 904. Had this court employed the proper rationale, it would have concluded that the City of Montgomery had a clear legal right to dismissal of the claimants’ complaint on the basis of res judicata. “[A] petition for a writ of mandamus is an appropriate method by which to seek ... review of the denial of a motion to dismiss predicated on the doctrine of res judicata.” Ex parte LCS, Inc., 12 So.3d 55, 56 (Ala.2008). See also Ex parte Ocean Reef Developers II, LLC, 84 So.3d 900 (Ala.Civ.App.2011).

In order to reconcile our recent caselaw with the decision in Ervin, we disavow the rationale of Bingham and we accept the City’s invitation to overrule Alexander v. City of Birmingham, 99 So.3d 1251 (Ala.Civ.App.2012). In Alexander, the claimant filed an action in the Jefferson Circuit Court on March.26, 2011, seeking the return of cash that had been seized from him and transferred to the DEA by officers of the Birmingham Police Department. The claimant acknowledged that previously, on August 10, 2010, a federal district court had entered a final judgment forfeiting the cash to the United States, but, he argued, the federal court had no authority to exercise in rem jurisdiction because the state court had had preexisting in rem jurisdiction by virtue of its having issued the warrant for the search whose execution resulted in the seizure of the cash. The circuit court entered a summary judgment in favor of the City of Birmingham. A majority of this court concurred to reverse the judgment, concluding that the municipality had “failed to present sufficient evidence from which to find, as a matter of law, that the federal court had obtained jurisdiction over the money at issue or that the state court had been divested of jurisdiction.” 99 So.3d at 1256. That conclusion erroneously permitted the claimant’s “collateral attack in state court on a final judgment entered by a federal court” and did not give the City of Birmingham “the res judicata benefit” of the federal court’s final judgment of forfeiture. See Ervin, 137 So.3d at 904.

Conclusion

Based on the authority of Ervin, the judgment of the trial court is affirmed.

AFFIRMED.

THOMPSON, P.J., and THOMAS and DONALDSON, JJ., concur.

MOORE, J., concurs in the result, without writing.

      . "[T]he Attorney General of the United States is authorized to cooperate with local and state police departments in combating the traffic of controlled substances and in suppressing drug abuse. See 21 U.S.C. § 873. To facilitate such cooperation, the United States Department of Justice has established so-called 'equitable sharing programs' whereby local or state officials request that the DEA adopt the seizure of and commence federal forfeiture proceedings against property subject to forfeiture under 21 U.S.C. § 881. After the federal forfeiture process has been completed and the property forfeited to the United States, the DEA disburses a large portion of the forfeited property back to the local or state law enforcement authority, minus administrative expenses. See 21 U.S.C. § 881(e)(1)(A).”

        DeSantis v. State, 384 Md. 656, 660, 866 A.2d 143, 145-46 (2005).


author: MOORE, Judge.

text:
    R.J.G. v. MOBILE COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2111166 and 2120351.
    Court of Civil Appeals of Alabama.
    June 21, 2013.
    Pamela Millsaps, Mobile, for appellant.
    Luther Strange, atty. gen., and Sharon E. Ficquette, gen. counsel, and Elizabeth Hendrix, asst. atty. gen., Department of Human Resources, for appellee.
   MOORE, Judge.

In appeal no. 2111166, R.J.G. (“the mother”) appeals from a judgment of the Mobile Juvenile Court (“the juvenile court”) terminating her parental rights to M.G. (“the child”). In appeal no. 2120351, the mother appeals from an order of the juvenile court denying her motion, filed pursuant to Rule 60(b), Ala. R. Civ. P., seeking relief from that judgment.

Procedural History

On May 19, 2011, the Mobile County Department of Human Resources (“DHR”) filed a petition to terminate the parental rights of the mother and the unknown father of the child. On February 6, 2012, the juvenile court entered a permanency order establishing a permanency plan of adoption by the child’s foster parent. On July 2, 2012, the date the termination hearing was scheduled, the mother’s attorney requested a continuance because DHR had provided discovery responses to him that day. The mother’s attorney also stated that he had written the mother inquiring when she would be released from incarceration and that the mother had sent him a letter informing him that she would be released from incarceration in time to meet with him and prepare her case. He stated that he later learned, by checking on the Internet, that the mother was incarcerated in the South Mississippi County Jail on a charge of residential burglary. He stated that he had sent a letter to the mother, in care of her father’s address, as well as a letter to her father, and that neither of them had responded. He stated that Amy Turner, a DHR worker, had, on the morning of the termination hearing, shown him some letters she had received from the mother indicating that the mother would be released from incarceration, at the most, one or two months after May 18, 2012. The attorney stated that because of the conflicting information, he was uncertain when the mother would be released from incarceration. He stated that the mother had assured him that she would stay in touch with him but that he had not received any other correspondence from her since she responded to his letter inquiring as to when her incarceration would end. He requested that the juvenile court consider resetting the termination hearing to a date in August to allow him an opportunity to find out when the mother was going to be released from incarceration and, in the event she would still be incarcerated on the new hearing date, whether there was a way for her to attend the hearing. The juvenile court denied the motion for a continuance.

On July 19, 2012, the juvenile court entered a judgment terminating the mother’s parental rights. The mother filed her notice of appeal on July 18, 2012.

On December 3, 2012, the mother filed a motion, pursuant to Rule 60(b), Ala. R. Civ. P., seeking relief from the July 19, 2012, judgment terminating her parental rights. The mother alleged that she had been provided ineffective assistance of counsel. On December 4, 2012, the mother requested that this court grant her leave to file the Rule 60(b) motion; this court granted that request the same day. On January 2, 2013, the juvenile court entered an order denying the mother’s Rule 60(b)(2) motion and stating:

“The above styled case comes before the Court on RESPONDENT’S/MOTHER’S RULE 60(B) MOTION FOR RELIEF FROM ORDER TERMINATING RESPONDENT’S PARENTAL RIGHTS, with permission from the Court of Civil Appeals. The Court notes that the case is on appeal to the Court of Civil Appeals which court authorized the filing of the motion made the subject of this order.
“Upon review of the motion and the case law presented therein, the Court finds that the arguments presented by counsel in the 60(B) motion are dependent in large part upon a review of the court record to determine whether or not the facts contained within the record support the conclusions reached by counsel.
“The undersigned is of the opinion that those arguments can be most properly made before the Court of Civil Appeals as grounds for reversal, and therefore it is ORDERED, ADJUDGED, and DECREED by the Court that the motion under 60(B) is hereby denied.”

(Capitalization in original.) On January 4, 2013, the mother filed her notice of appeal from the juvenile court’s order denying her Rule 60(b) motion.

Discussion

In appeal no. 2120351, the mother argues that the juvenile court erred in denying her Rule 60(b) motion. We initially note that the juvenile court’s order indicates that it did not reach the merits of the mother’s motion; instead, the juvenile court mistakenly determined that this court should do so in the first instance. To the contrary, a motion alleging ineffective assistance of counsel must first be determined by the trial court. See, e.g., K.H. v. Jefferson Cnty. Dep’t of Human Res., 106 So.3d 420 (Ala.Civ.App.2012). “[I]t is generally the duty of a trial court to first consider all issues raised by the parties, and only after the trial court has done so is review by an appellate court possible.” Woodruff v. City of Tuscaloosa, 101 So.3d 749, 755 (Ala.2012). Accordingly, we reverse the juvenile court’s order entered on the mother’s Rule 60(b) motion, and we remand the cause for the juvenile court to enter an order on the merits of the mother’s motion.

Because we are reversing and remanding with regard to appeal no. 2120351, we pretermit discussion of the issues raised in appeal no. 2111166 addressed to the judgment terminating the mother’s parental rights. See, e.g., Congress v. U.S. Bank, N.A., 98 So.3d 1165, 1170 (Ala.Civ.App.2012). However, because the juvenile court’s actions on remand may affect the judgment terminating the mother’s parental rights, we remand that action to the juvenile court as well. The juvenile court shall make a return to this court within 42 days after the date of this opinion.

2111166—REMANDED.

2120351—REVERSED AND REMANDED.

THOMPSON, P.J., and PITTMAN, THOMAS, and DONALDSON, JJ., concur.

      . The mother’s notice of appeal was held in abeyance until the judgment was entered. See Rule 4(a)(4), Ala. R.App. P.


author: PER CURIAM.

text:
    Burnice T. DREDING, Jr. v. Frank KRUSE, as personal representative of the estate of David Velez, deceased.
    2120422.
    Court of Civil Appeals of Alabama.
    July 12, 2013.
    Rehearing Denied Aug. 30, 2013.

      Burniee T. Dreding, Jr., pro se.
    Submitted on appellant’s brief only.
   PER CURIAM.

This is the second time that these parties have been before this court. See Dreding v. Kruse (No. 2110465, July 13, 2012), — So.3d - (Ala.Civ.App.2013) (table). The background facts are as follows. On May 22, 2008, Viviana Castaneda, as personal representative of the estate of David Velez (“the estate”), filed a complaint against Burniee T. Dreding, Jr., and other fictitiously named parties, asserting a wrongful-death claim premised on various acts of alleged negligence and wantonness. The case-action-summary sheet indicates that Frank Kruse was substituted as the personal representative of the estate on January 31, 2011. On the same day, a jury sitting in the Mobile Circuit Court returned a verdict against Dreding, and in favor of Kruse, as personal representative of the estate, on the wrongful-death claim premised on Dreding’s negligence and wantonness. The jury further assessed damages in the amount of $5,000,000. The trial court also entered a judgment on the verdict on January 31, 2011.

Dreding filed a postjudgment motion styled as a “motion to appeal.” On February 17, 2011, he filed a motion to alter, amend, or vacate pursuant to Rule 59, Ala. R. Civ. P. The trial court scheduled a hearing on April 15, 2011, to address the postjudgment motions. The trial court issued an order on May 5, 2011, denying the motion to alter, amend, or vacate and reaffirming the amount of damages. Dreding then filed a timely appeal with this court, which was transferred to the Alabama Supreme Court for lack of subject-matter jurisdiction. The supreme court dismissed Dreding’s appeal on July 20, 2011, for failure to file the record on appeal within the time provided by Rule 31, Ala. R.App. P.

On January 12, 2012, Dreding filed a “motion for relief from judgment or order” pursuant to Rule 60(b)(4), Ala. R. Civ. P., asking the trial court to set aside as void the order denying the motion to alter, amend, or vacate. The trial court denied that motion on the same day. Dreding next filed a “motion for reconsideration of the order” on January 27, 2012, which the trial court again denied on the same day.

Dreding filed an appeal from the January 27, 2012, order with this court on February 14, 2012. In that appeal, Dred-ing argued that the trial court had erred and had abused its discretion by summarily dismissing his Rule 60(b)(4) motion because, he said, the original judgment was void. This court issued a no-opinion order of affirmance, citing Smith v. Cowart, 68 So.3d 802, 810 (Ala.2011), and McIntyre v. Satch Realty, Inc., 961 So.2d 185, 138 (Ala.Civ.App.2006), for the proposition that Dreding was not entitled to relief under Rule 60(b)(4) because his Rule 60(b)(4) motion had asserted the same grounds for relief asserted in his February 17, 2011, motion to alter, amend, or vacate. This court issued a certificate of judgment on August 23, 2012.

On October 15, 2012, Dreding again filed in the trial court a motion for relief from judgment or order pursuant to Rule 60(b)(4). In that most recent Rule 60(b)(4) motion, Dreding again regurgitates the same arguments from his previously filed Rule 59 and Rule 60(b)(4) motions, specifically that Castaneda did not have standing to initiate a cause of action against him and that Kruse was improperly substituted as the personal representative of the estate. The trial court denied Dreding’s second Rule 60(b)(4) motion on January 15, 2013. Dreding filed a notice of appeal with our supreme court on February 19, 2013. The appeal was transferred to this court pursuant to § 12-2-7(6), Ala.Code 1975.

The brief that Dreding has filed on appeal is by no means a model of clarity. However, because it is evident that Dreding continues to espouse the same arguments that he has raised in all of his postjudgment motions, we conclude that we lack jurisdiction over Dreding’s appeal.

“ ‘ “Alabama caselaw has placed a significant limitation upon the availability of relief under Rule 60(b) where a movant has previously sought relief under that rule. As stated by the Alabama Supreme Court in Ex parte Keith, 771 So.2d 1018 (Ala.1998), ‘[ajfter a trial court has denied a post-judgment motion pursuant to Rule 60(b), that court does not have jurisdiction to entertain a successive post-judgment motion to “reconsider” or otherwise review its order denying the Rule 60(b) motion.’ 771 So.2d at 1022 (emphasis added). In other words, a party who has previously filed an unsuccessful motion seeking relief under Rule 60(b) may not properly file a second motion in the trial court that, in effect, requests the trial court to revisit its denial of the first motion, such as by reasserting the grounds relied upon in the first motion. See Wadsworth v. Market Ins. Co., 906 So.2d 179, 182 (Ala.Civ.App.2005) (‘Successive Rule 60(b) motions on the same grounds are generally considered motions to reconsider the original ruling and are not authorized by Rule 60(b).’).” ’
“Williams v. Williams, 70 So.3d 332, 334 (Ala.Civ.App.2009) (quoting Pinkerton Sec. & Investigations Servs., Inc. v. Chamblee, 934 So.2d 386, 390-91 (Ala.Civ.App.2005)) (second emphasis added in Williams).”

Young v. Southeast Alabama Med. Ctr., [Ms. 2111258, Feb. 8, 2013] — So.3d -, -(Ala.Civ.App.2013).

The trial court lacked jurisdiction to entertain Dreding’s October 15, 2012, Rule 60(b) motion, which merely asked the trial court, once again, to reconsider its denial of his Rule 59 motion. See Wadsworth v. Market Ins. Co., 906 So.2d 179, 182 (Ala.Civ.App.2005) (“Successive Rule 60(b) motions on the same grounds are generally considered motions to reconsider the original ruling and are not authorized by Rule 60(b).”); see also Williams v. Williams, 70 So.3d 332, 334 (Ala.Civ.App.2009). This court has previously held that “[b]ecause a trial court has no jurisdiction to entertain a successive Rule 60(b) motion based upon the same grounds as an earlier Rule 60(b) motion, an order granting or denying such a successive motion ... is a nullity and will not support an appeal.” Pinkerton Sec. & Investigations Servs., Inc. v. Chamblee, 934 So.2d 386, 391 (Ala.Civ.App.2005). Thus, because the trial court lacked jurisdiction over Dreding’s most recent Rule 60(b) motion, we lack jurisdiction over Dreding’s appeal of the trial court’s order denying that motion, and, accordingly, we dismiss the appeal.

APPEAL DISMISSED.

THOMPSON, P.J., and PITTMAN, THOMAS, MOORE, and DONALDSON, JJ., concur.

      . This court transferred that appeal to the Alabama Supreme Court for lack of subject-matter jurisdiction; that court then transferred the appeal back to this court pursuant to § 12-2-7(6), Ala.Code 1975.

      . We note that, even if this court had jurisdiction over this appeal, Dreding’s attempts to relitigate the same issues of Castaneda’s standing and the trial court’s subject-matter jurisdiction are barred by the law-of-the-case doctrine.
      " 'Under the doctrine of the "law of the case," whatever is once established between the same parties in the same case continues to be the law of that case, whether or not correct on general principles, so long as the facts on which the decision was predicated continue to be the facts of the case.’ Blumberg v. Touche Ross & Co., 514 So.2d 922, 924 (Ala.1987). The law-of-the-case doctrine is ‘designed to avoid repeated litigation over an issue that has already been decided.’ Williams v. Williams, 91 So.3d 56, 62 (Ala.Civ.App.2012).”

        Davis v. Blaclcstock, [Ms. 2111244, April 5, 2013] - So.3d -, - (Ala.Civ.App. 2013).


author: JOINER, Judge. WINDOM, Presiding Judge,

text:
    Ronald Curry ADAMS v. STATE of Alabama.
    CR-11-1580.
    Court of Criminal Appeals of Alabama.
    June 7, 2013.

      Barr Duane Younker, Jr., Montgomery, for appellant.
    Luther Strange, atty. gen., and William D. Dill, asst. atty. gen., for appellee.
   JOINER, Judge.

Ronald Curry Adams appeals from an order revoking his probation. We reverse and remand with instructions. In March 2012, Adams pleaded guilty to second-degree assault, see § 13A-6-21, Ala.Code 1975, and first-degree robbery, see § 13A-8-41, Ala.Code 1975. Adams was sentenced to 10 years’ imprisonment for the second-degree-assault conviction; that sentence, however, was split, and Adams was sentenced to serve 6 months’ imprisonment, followed by 3 years’ probation. With respect to the first-degree-robbery conviction, Adams was sentenced to 20 years’ imprisonment; that sentence was suspended, and Adams was ordered to serve 5 years’ probation. The sentences were to run concurrently. (C. 12, 34.) In May 2012, Adams’s probation was revoked, and Adams now appeals.

On appeal, Adams argues, among other things, that his first-degree-robbery sentence is illegal and, thus, that the circuit court’s order purporting to revoke his probation relating to the first-degree-robbery conviction is without effect. (Adams’s brief, p. 5.) The State concedes that the first-degree-robbery case “should be remanded to the trial court for reconsideration of its revocation and the underlying plea agreement.” (State’s brief, p. 5.)

“The court shall have no power to suspend the execution of sentence imposed upon any person who has been found guilty and whose punishment is fixed at death or imprisonment in the penitentiary for more than 15 years.” § 15-22-50, Ala. Code 1975.

“This Court in Enfinger v. State, 123 So.3d 535 (Ala.Crim.App.2012), recently addressed the effect of probation revocation following the imposition of an illegal sentence. In Enfinger, Enfinger pleaded guilty to sexual abuse of a child under 12, see § 13A-12-69.1, Ala.Code 1975, and his sentence was split; En-finger’s probation was eventually revoked, and he appealed. On appeal, this Court first recognized that, because of the nature of Enfinger’s offense — ‘a criminal sex offense involving a child’— ‘the circuit court did not have the authority to either impose a split sentence or to impose a term of probation.’ Enfinger, 123 So.3d at 538. Therefore, this Court concluded that the circuit court’s purported probation-revocation order was unauthorized because the circuit court ‘had no authority to conduct a probation-revocation hearing and revoke Enfinger’s probation.’ Enfinger, 123 So.3d at 538.”

Scott v. State, [Ms. CR-10-1418, Feb. 15, 2013] — So.3d -, -(Ala.Crim.App.2013).

In this case, like in Enfinger v. State, 123 So.3d 535 (Ala.Crim.App.2012), and Scott, Adams’s “sentence [for first-degree robbery] is illegal and the circuit court was without jurisdiction to revoke [his] probation, see Enfinger; because the circuit court did not have the authority to revoke [his] probation, the circuit court’s order purporting to do so was without effect.” Scott, — So.3d at - (emphasis added). The remedy is to resentence Adams; however, as we did in Enfinger,

“we note that, although the record indicates that [Adams] was convicted ... as the result of a ‘plea bargain’ ..., the record is unclear as to whether [Adams’s] sentence was part of the plea bargain. Thus, ‘it is impossible for this Court to determine whether resentenc-ing [Adams] will affect the voluntariness of his plea.’ Austin [v. State ], 864 So.2d [1115] at 1119 [(Ala.Crim.App.2008)].”

Enfinger, 123 So.3d at 539.

Accordingly, the judgment of the circuit court sentencing Adams to 20 years’ imprisonment and purporting to suspend that sentence is reversed, and this case is remanded to the circuit court for proceedings consistent with this opinion, including resentencing and addressing any subsequent issues that might arise relating to the voluntariness of Adams’s plea. The circuit court shall take all necessary action to ensure due return to this Court at the earliest possible time and within 42 days after the release of this opinion. The return to remand shall include a detailed order and a transcript of the proceedings conducted on remand.

REVERSED AND REMANDED WITH INSTRUCTIONS.

WELCH, KELLUM, and BURKE, JJ„ concur. WINDOM, P.J., dissents, with opinion.

WINDOM, Presiding Judge,

dissenting.

The issue upon which this Court reverses the revocation of Ronald Curry Adams’s probation is moot. See Enfinger v. State, 123 So.3d 535, 542 (Ala.Crim.App.2012) (Windom, P.J., dissenting). Therefore, I respectfully dissent.

      . Initially, Adams’s appointed appellate counsel filed a no-merit brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and a motion to withdraw from representing Adams on appeal. Upon our review of the record, we noticed issues arguable on their merits that warranted further briefing, permitted Adams's initial appellate counsel to withdraw, and appointed new appellate counsel.

      . The State argues that this Court should remand only as to the first-degree-robbery conviction and address the revocation of probation relating to the second-degree-assault conviction. As the State concedes, however, "the record [in this case] is far from clear” (State's brief, p. 5), and it is unclear whether there is any connection between the second-degree-assault plea and the first-degree-robbery plea; accordingly, we remand this entire matter to the circuit court. For the same reason, we do not at this time address Adams’s second argument—namely, that his probation-revocation hearing did not comport with due-process requirements.