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Foreclosure Notice

Barnes v. U.S. Bank Nat. Assoc., [Ms. 2180699, June 26, 2020] __ So. 3d __ (Ala. Civ. App. 2020). The court (Thompson, P.J.; Moore and Donaldson, JJ., concur; Edwards, J., concurs in the result) reverses the Jefferson Circuit Court’s judgment in favor of the mortgagee in an ejectment action. Citing Ex parte Turner, 254 So. 3d 207 (Ala. 2017), the court holds that the foreclosure notice failed to strictly comply with the notice required by the mortgage. Paragraph 22 of the mortgage stated in pertinent part that “[t]he notice shall further inform Borrower of the right to reinstate after acceleration and the right to bring a court action to assert the non-existence of a default or any other defense of Borrower to acceleration and sale of the mortgaged property.” Ms. *3.

The servicer of the loan, Ocwen Loan Servicing, LLC, sent a foreclosure notice stating that “You may have the right to assert in court the non-existence of a default or any other defense to acceleration or foreclosure.” Ms. *4. The court holds the notice did not meet the strict compliance standard of Ex parte Turner:

Contrary to the trial court’s conclusion, and U.S. Bank’s appellate argument, Ocwen’s default notice does not “strictly comply” with paragraph 22 in at least two respects. First, … Ocwen’s notice contains no reference to a right to affirmatively seek relief in a court action directly challenging the foreclosure …. Second, the reference in Ocwen’s notice is not unequivocal because it refers to what rights Barnes “may” have….”

Ms. *18.

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