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Possession By Mortgagor Not Averse To Mortgagee - Laches

Brackett v. Central Bank, [Ms. 2190212, Dec. 11, 2020], ___ So. 3d ___ (Ala. Civ. App. 2020). The court (Hanson, J.; Thompson, P.J., and Moore, Donaldson, and Edwards, JJ., concur) affirms the Colbert Circuit Court’s judgment declaring that Central Bank owned certain real property and related boat slips pursuant to a foreclosure deed. The court rejects an adverse possession claim asserted by the mortgagor’s transferees and explains

[A]ny acts of possession by the transferees before the foreclosure sale of Lot 22 in June 2010 were not adverse as to the mortgagee in the absence of evidence of an explicit disclaimer of possession in subordination to the recorded June 2007 mortgage. Accord Courtney [v. Boykin, 356 So. 2d 162, 166 (Ala. 1978)](holding that trial court erred in considering possessory acts occurring before issuance of foreclosure deed to a mortgagee in determining issue of adverse possession asserted by claimant). Because 10 years had not elapsed since the date of the foreclosure sale at the time the mortgagee brought its action against the transferees, we conclude that the trial court did not err in rejecting the transferees’ defense of adverse possession.

Ms. **13-14. The court also rejected the transferees’ argument that the bank waited too long to sue the transferees for possession

[T]he mortgagee brought its own declaratory-judgment claim against the transferees within the10-year statute-of-limitations period applicable to actions for recovery of land. “‘[W]hen a party asserts that a claim is barred by laches in a case where the action is not barred by the statute of limitations, mere delay is not sufficient for the defense of laches’”; rather, “‘[s]pecial facts must appear which make the delay culpable.’” Williams v. Mertz, 549 So. 2d 87, 88 (Ala. 1989) (quoting Thomaston v. Thomaston, 468 So. 2d 116, 121 (Ala. 1985)). Here, the transferees have not shown any such special facts that would have made the mortgagee’s eight-year delay culpable: in light of the adversity principles we have discussed, we perceive no advantage that could have inured to the transferees by way of their calling former employees of the mortgagee as witnesses. Thus, the trial court did not err in entering a judgment favorable to the mortgagee notwithstanding the decision to wait for several years to bring the action.

Ms. **16-17.

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