Inadequacy of Foreclosure Notice


Rosser v. Federal Nat. Mtg. Assoc., et al., [Ms. 2180917, Oct. 30, 2020], ___ So. 3d ___ (Ala. Civ. App. 2020). The court (Donaldson, J.; Thompson, P.J., and Moore and Hanson, JJ. concur; Edwards, J., concurs in part and concurs in the result in part) affirms in part and reverses in part the Jefferson Circuit Court’s summary judgment in favor of Fannie Mae and Bank of America in an ejectment action. The court reverses the summary judgment on Fannie Mae’s ejectment claim because the foreclosure notice did not strictly comply with the requirements set out in the mortgage. The court notes “failure to provide proper notice under the mortgage is a ground for challenging a foreclosure sale within an ejectment action, and a lack of proper notice renders a foreclosure sale void.” Ms. *12. The court holds “use of ‘may’ in reference to the right to initiate a court action does not unequivocally refer to an unconditional right under the mortgage. Therefore, Fannie Mae failed to establish that it was entitled to a judgment as a matter of law with respect to its ejectment claim.” Ms. * 18.

The court affirms the dismissal of Rosser’s breach of contract counter claim. “[T]he elements of a breach-of-contract claim in Alabama are (1) the existence of a valid contract binding the parties in the action, (2) [the plaintiff’s] own performance under the contract, (3) the defendant’s nonperformance, and (4) damages.” Ms. *20. The court holds Rosser “has not argued on appeal that she performed her obligations under the mortgage. Therefore, Rosser has not demonstrated that the summary judgment denying her claim of breach of contract should be reversed.” Ms.**20-21.

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