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Rowan v. GE Capital Mortgage Services5/26/2000
Larry E. Rowan and Kimberly J. Rowan filed a proposed class action against GE Capital Mortgage Services, Inc., in the Shelby Circuit Court. They have petitioned for a writ of mandamus directing Judge D. Al Crowson to vacate his orders disallowing statewide discovery in that action. The Rowans filed their action to recover the statutory penalty provided by Ala. Code 1975, § 35-10-30, for GE Capital's failure to file a satisfaction of their mortgage within 30 days after receiving payment in full accompanied by a written request that it make an entry in the Shelby County probate records showing that the mortgage was satisfied. Because discovery concerning mortgages recorded in counties other than Shelby County would not lead to relevant evidence, we deny the writ.
I.
The Rowans had borrowed money from GE Capital to purchase their Shelby County home, and the loan was secured by a mortgage on that home. In July 1996, the Rowans sold the home. The loan was paid in full from the proceeds of the sale, and the Rowans asked GE Capital to make an entry in the Shelby County probate records showing that the mortgage was satisfied and the lien released. GE Capital did not file the satisfaction within 30 days, as is required by Ala. Code 1975, § 35-10- 27.
The Rowans, on their own behalf and on behalf of a putative class of others similarly situated, sued GE Capital, seeking to recover the $200 penalty established by § 35-10-30 for failure to record a satisfaction within 30 days after the mortgagor asks the mortgagee to do so. In order to support the bringing of a statewide class action, the Rowans sought discovery from GE Capital concerning its failure to file records of satisfaction of mortgages recorded in other counties. GE Capital refused to comply with the Rowans' discovery request, and the Rowans filed a motion to compel GE Capital to provide the requested information. The trial court denied that motion, holding that the Rowans were entitled to discovery only of failures to satisfy mortgages recorded in Shelby County. The court reasoned that pursuant to Ala. Code 1975, § 35-10-30(b), it could hear only those causes of action involving failures to satisfy mortgages recorded in Shelby County. The Rowans then filed this petition for a writ of mandamus, arguing that the trial court abused its discretion in disallowing statewide discovery, because, they argue, § 35-10-30(b) is merely a venue provision, and, because venue is proper as to them, it is proper as to the entire putative class.
II.
A writ of mandamus is an extraordinary remedy, issued only upon the showing of: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty on the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court. See Ex parte Conference America, Inc., 713 So. 2d 953, 955 (Ala. 1998) (citing Ex parte Edgar, 543 So. 2d 682, 684 (Ala. 1989)). The Rowans would be entitled to a writ of mandamus only if it were clear that they are entitled to statewide discovery.
The right the Rowans seek to enforce exists only because of a statute, § 35-10-30(a). It did not exist at common law. That statute, establishing the right to bring an action to recover the penalty and strictly limiting where such an action may be brought, is a "statute of creation." See Cofer v. Ensor, 473 So. 2d 984 (Ala. 1985) (holding that Alabama's wrongful-death statute, Ala. Code 1975, § 6-5-410, was a statute of creation and that the two-year limitation set forth in that statute on the time allowed to bring an action alleging wrongful death was integral to the substantive right created by
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