                                                           [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________           FILED
                                                  U.S. COURT OF APPEALS
                               No. 09-14901         ELEVENTH CIRCUIT
                                                       MARCH 16, 2010
                         ________________________
                                                         JOHN LEY
                                                          CLERK
                    D. C. Docket No. 07-02254-CV-2-RBP

CS ASSETS, LLC,


                                                              Plaintiff-Counter-
                                                            Defendant-Appellee,

                                    versus

WEST BEACH, LLC,
MATTHEW PIELL,

                                                           Defendants-Counter-
                                                          Claimants-Appellants,

ALBERT L. WEBER, et al.,

                                                            Defendants-Counter-
                                                                     Claimants.


                         ________________________

                  Appeal from the United States District Court
                     for the Northern District of Alabama
                        _________________________

                               (March 16, 2010)
Before HULL, WILSON and FARRIS,* Circuit Judges.

PER CURIAM.

       This case involves a default by investors who held waterfront property in

Orange Beach, Alabama. The lender exercised a power of sale to conduct its own

foreclosure on the mortgaged property. A lawyer for the lender ran the auction and

made the only bid. A representative of the investors attended the auction but did

not participate. The lender bought the property. Then, the lender sued the

investors for the balance of the loan. The investors protested, claiming that the

purchase price was only a fraction of the property’s fair market value, thereby

needlessly inflating the loan deficiency.

       This case poses a question Alabama courts have wrestled with for more than

a century: when is the price paid by the lender to buy property in a foreclosure

under a power of sale, in the absence of any indicia of fraud, bad faith, or lack of

notice, low enough to shock the judicial conscience and, without more, require a

court to set aside the sale? Because we are a federal court sitting in diversity

jurisdiction, and the question is one of Alabama law, we can only offer our best

Erie guess. In this case, we decline to set aside the sale. See Mt. Carmel Estates,

Inc. v. Regions Bank, 853 So. 2d 160, 168 (Ala. 2002); Breen v. Baldwin County


*
   Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.

                                                2
Fed. Sav. Bank, 567 So. 2d 1329, 1333 (Ala. 1990); Hayden v. Smith, 113 So. 293,

295 (Ala. 1927); Harmon v. Dothan Nat’l Bank, 64 So. 621, 624–25 (Ala. 1914);

Ward v. Ward, 19 So. 354, 355–56 (Ala. 1896). In the case at issue, the lender

acquired the property for 20%, 30%, or 66% of its fair market value, depending on

the appraisal used. But the choice of percentage is not as determinative in the end

as the observation that no misconduct tainted the auction. The pleadings in the

district court created no genuine issue as to the propriety of the sale or the

adequacy of the notice. The investors concede they knew about the auction. (We

also note that the investors declined to exercise their statutory right of redemption

in the year following the sale.) In the absence of any issue of impropriety, this sale

must stand. The trial court did not err in concluding the sale price did not shock

the judicial conscience.

      We also reject the other arguments the investors raise on appeal. The lender

adequately proved the amount of its deficiency. The investors did not argue to the

district court their desire for multiple auctions, so we cannot now consider it. And,

the district court did not err in awarding attorneys’ fees, or in considering the

affidavit of the lender’s manager, and the appraisal attached to that affidavit.

      AFFIRMED.




                                            3
