Bullard v. Elgin Fed. Savs. & Loan Ass'n

Evidence that the defendant approved the co-defendant's decision to foreclose the plaintiff's mortgage created a genuine issue as to whether the defendant was vicariously libel for the allegedly wrongful foreclosure.

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In this case’s first appearance this Court affirmed the superior court’s grant of defendant West Star Financial Corporation’s “West Star” motion to set aside default judgment for lack of service of process.1 Thereafter, appellant-plaintiff Sparkle Bullard “plaintiff” amended her complaint against West Star, AFI Mortgage Corporation “AFI” and Beal Banc, S.A. “Beal” to add appellee-defendant Elgin Federal Savings & Loan Association “Elgin” and Wendover Funding Corporation “Wendover” as parties. As amended, plaintiff’s complaint sought damages for wrongfully threatening foreclosure of her home on behalf of Elgin as owner of an interest in the deed to secure debt on plaintiff’s home. The superior court granted Elgin’s motion for summary judgment on the issue of vicarious liability, and this appeal followed. Subsequently, plaintiff voluntarily dismissed her complaint, as amended, against West Star, Beal Banc, and Wendover without prejudice, leaving only AFI and Elgin in her lawsuit. Elgin later moved to dismiss the appeal as moot, arguing that plaintiff’s claim against Elgin did not survive plaintiff’s dismissal of Elgin’s alleged agents in wrongful foreclosure because it rested upon the doctrine of respondeat superior alone. Held:

1. We decline to grant Elgin’s motion to dismiss appeal, noting that while plaintiff has voluntarily dismissed her cause of action against all of Elgin’s alleged subagents less AFI, she has not done so as to Elgin. This result is not inconsistent with the recent decision of our Supreme Court in Miller v. Grand Union Company2 in which the Supreme Court held that neither a covenant not to sue nor a release in favor of an employee is sufficient to discharge an employer who is alleged to be vicariously liable for the tortious acts or omissions of such employee, “unless the instrument names the employer.”3 Plaintiff named Elgin in the voluntary dismissal she filed in the case sub judice only to state that “by this pleading she did not dismiss her Complaint against AFI or her Complaint or appeal against Elgin.”

Bullard v. Elgin Fed. Savs. & Loan Ass'n

Evidence that the defendant approved the co-defendant's decision to foreclose the plaintiff's mortgage created a genuine issue as to whether the defendant was vicariously libel for the allegedly wrongful foreclosure.

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