(251) 299-0101

Ore Tenus Standard - Assignment of Note - Postjudgment Motion - Waiver

Ayers v. Mays, [Ms. 2170639, Apr. 5, 2019] __ So. 3d __ (Ala. Civ. App. 2019). The court (Moore, J.; Thompson, P.J., and Donald, Hanson, JJ., concur; Edwards, J., concurs in part and dissents in part) affirms in part and reverses in part a judgment of the Randolph Circuit Court in a dispute regarding the foreclosure of a mortgage. The court noted that in reviewing the judgment, it must assume that the trial court made those findings necessary to support its judgment and that “[u]nder the ore tenus rule, all implicit findings of fact necessary to support a trial court’s judgment carry a presumption of correctness and will not be held to be erroneous unless they are plainly and palpably wrong.” Ms. *17-18.

The court affirmed the trial court’s judgment that Ayers’s counterclaim seeking to enforce a deficiency under the note was barred pursuant to § 7-3-118(a), Ala. Code 1975, because it was filed more than six years after the due date stated in the note. Ayers asserted for the first time in his postjudgment motion that § 6-8-84, Ala. Code 1975, preserved his counterclaim to enforce a deficiency under the note despite the statute of limitations. Section 6-8-84 provides:

“When the defendant pleads a counterclaim to the plaintiff’s demand, to which the plaintiff replies the statute of limitations, the defendant is nevertheless entitled to his counterclaim, where it was a legal subsisting claim at the time the right of action accrued to the plaintiff on the claim in the action.”

Ms. *23. The court declined to address the merits of this issue holding “[g]iven the lack of any explanation for the tardy assertion of the argument asserting the applicability of § 6-8-84, we conclude that the trial court did not exceed its discretion in refusing to grant Ayers’s post-judgment motion insofar as it requested that the trial court amend its ruling that the statute of limitations barred its counterclaim.” Ms. *27.

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