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.