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REL: 09/17/2010

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SUPREME COURT OF ALABAMA
SPECIAL TERM, 2010 ____________________ 1090891 ____________________ Ex parte M & F Bank PETITION FOR WRIT OF MANDAMUS (In re: M & F Bank v. First American Title Insurance Company) (Jefferson Circuit Court, CV-08-903787)

PER CURIAM. M & F Bank ("M & F") petitions this Court for a writ of mandamus compelling the Jefferson Circuit Court to vacate its

1090891 order setting aside a previous order in which it had granted M & F's motion to strike and/or quash subpoenas issued by the respondent, First American Title Insurance Company ("First American"), petition. I. Facts and Procedural History to depose certain individuals. We deny the

On December 19, 2006, a plat for a subdivision referred to as Old Towne Station was recorded in the office of the Judge of Probate of Lee County. The plat showed lots numbered On December 28,

1 through 94; it did not show a lot 95. 1

2006, The Shoppes at Old Towne Station, LLC ("the debtor"), executed a note in favor of M & F evidencing an indebtedness of $2,855,000; the note purportedly was secured by a mortgage on "lot 95" of Old Towne Station. On January 24, 2007, First

American, through its agent, Blue Title, LLC, issued a titleinsurance policy ("the policy") to M & F insuring M & F's purported interest as mortgagee in lot 95.

According to an affidavit from Chris Eckroate, the project engineer for the Old Towne Station subdivision development, and as conceded by M & F's attorney in a hearing on the motion below, a lot apparently was labeled "Lot 95" on the plat after it was recorded. 2

1

1090891 The debtor subsequently defaulted on the loan. As a

result of the "title work" performed in preparation for a foreclosure on the mortgage, M & F discovered that lot 95 was not included on the recorded plat. On October 29, 2008, M &

F notified First American that it was making a claim under its title-insurance represented by policy. attorney On Burt November Newsome 19, -2008, filed M an & F --

action

against Blue Title and First American in the Jefferson Circuit Court, alleging breach of contract. 2 On April 27, 2009, M & F

amended its complaint to include claims of negligence and bad faith against First American. After being served with process in the action filed by M & F, First American hired attorney Mark Davis to file an action in the name of M & F seeking a reformation of the mortgage held by M & F and insured by First American; Davis filed the action in the Lee Circuit Court on March 20, 2009, naming as defendants the debtor and certain purported

lienholders.

First American purported to take this action in

2

Blue Title has since been dismissed from this action. 3

1090891 accordance with what it contends were stipulations in the policy it had issued to M & F. 3 On March 13, 2009, the debtor filed a petition in the United States Bankruptcy Court for the Northern District of Alabama ("the bankruptcy court") declaring bankruptcy under The debtor

Chapter 7 of the United States Bankruptcy Code.

hired attorney Steven Altman to represent it in the bankruptcy proceedings. The bankruptcy court appointed Andr

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