Turner v. Wells Fargo Bank, N.A. (Ex parte Turner)
| Decision Date | 01 September 2017 |
| Docket Number | 1160212 |
| Parties | EX PARTE Trenton TURNER, Jr., and Donna Turner (In re: Trenton Turner, Jr., and Donna Turner v. Wells Fargo Bank, N.A., as Trustee for Carrington Mortgage Loan and Trust 2006–NC2 Asset-backed Pass-through Certificates) |
| Court | Alabama Supreme Court |
254 So.3d 207
EX PARTE Trenton TURNER, Jr., and Donna Turner
(In re: Trenton Turner, Jr., and Donna Turner
v.
Wells Fargo Bank, N.A., as Trustee for Carrington Mortgage Loan and Trust 2006–NC2 Asset-backed Pass-through Certificates)
1160212
Supreme Court of Alabama.
September 1, 2017
Kenneth James Lay of Hood & Lay LLC, Birmingham, for petitioners.
S. Keith Eady of RCO Legal, P.S., Atlanta, Georgia, for respondent.
Michael Forton, and Joseph Abrams, Legal Services Alabama, Huntsville; and Bradford W. Botes, Reese & Shinn, P.C., Birmingham, Counsel for the National Consumer Law Center, for amici curiae Legal Services Alabama and the National Consumer Law Center, in support of the petitioners.
PARKER, Justice.
Trenton Turner, Jr., and Donna Turner petitioned this Court for a writ of certiorari to review the Court of Civil Appeals' decision affirming a judgment entered by the Jefferson Circuit Court in favor of Wells Fargo Bank, N.A., as trustee for Carrington Mortgage Loan and Trust 2006–NC2 Asset-backed Pass-through Certificates ("Wells Fargo"), ejecting the Turners from real property located in Jefferson County ("the property"). See Turner v. Wells Fargo Bank, N.A., 254 So.3d 194 (Ala. Civ. App. 2016). We granted certiorari review to consider whether the Court of Civil Appeals' decision conflicts with this Court's decision in Jackson v. Wells Fargo Bank, N.A., 90 So.3d 168 (Ala. 2012). See Rule 39(a)(1)(D), Ala. R. App. P. For the following reasons, we conclude that the Court of Civil Appeals' decision in
this case does conflict with Jackson, and we reverse its judgment.
Facts and Procedural History
The Court of Civil Appeals set forth the relevant facts and procedural history in Turner, supra, as follows:
"In 2006, the Turners financed the purchase of the property by executing a promissory note ('the note') in favor of New Century Mortgage Corporation ('New Century'). Contemporaneously with the execution of the note, the Turners executed a mortgage in favor of New Century on the property as security for repayment of the note. The mortgage was recorded in the Jefferson Probate Court ('the probate court').
"The mortgage contained the following provisions that are pertinent to this appeal:
" ‘1. ... [I]f any check or other instrument received by Lender as payment under the Note or this Security Instrument is returned to Lender unpaid, Lender may require that any or all subsequent payments due under the Note and this Security Instrument be made in one or more of the following forms as selected by Lender: (a) cash; (b) money order; (c) certified check, bank check, treasurer's check or cashiers check ...; or (d) Electronic Funds Transfer.
" ‘....
" ‘22. Acceleration Remedies. Lender shall give notice to Borrower prior to acceleration following Borrower's breach of any covenant or agreement in this Security Instrument.... The notice shall specify (a) the default; (b) the action required to cure the default; (c) a date not less than 30 days from the date the notice is given to Borrower by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument and sale of the Property. The notice shall further inform the 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. If the default is not cured on or before the date specified in the notice, Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may invoke the power of sale and any other remedies permitted by Applicable Law.’
"According to affidavit testimony, on July 1, 2007, New Century transferred and assigned the note and the mortgage to Wells Fargo. Carrington Mortgage Services, LLC (‘Carrington’), served as the loan servicer for Wells Fargo.... The assignment of the note and the mortgage was ultimately executed on February 1, 2012, and recorded in the probate court on February 15, 2012."
Turner, 254 So.3d at 197.
There was subsequently a dispute concerning the Turners' obligation under the mortgage, and Wells Fargo sought to foreclose on the property. The Court of Civil Appeals set forth the remaining pertinent facts:
"On November 30, 2011, Carrington sent a letter to the Turners notifying them of its intent to foreclose on the property, stating that the loan was in default ... and informing the Turners that the default could be cured by the Turners' tendering certified funds in the amount of $4,545.36. The letter further stated that
" ‘[f]ailure to cure the delinquency within 30 days of the date of this letter may result in acceleration of the sums secured by the Deed of Trust or Mortgage and in the sale of the property.
" ‘You have the right to reinstate your loan after legal action has begun. You also have the right to assert in foreclosure, the non-existence of a default or any other defense to acceleration and foreclosure.’
"No evidence was presented showing that the Turners responded to the letter.
"On January 31, 2012, Trustee Management Company (‘TMC’), on behalf of Wells Fargo, sent the Turners a notice of foreclosure sale stating that Wells Fargo had elected to accelerate the debt and notifying the Turners that the foreclosure sale was scheduled for February 27, 2012. The notice of the foreclosure sale was published in the Alabama Messenger newspaper on February 4, 2012, February 11, 2012, and February 18, 2012.
"The foreclosure sale was conducted on February 27, 2012, and Wells Fargo was the highest bidder. On the same day, a foreclosure deed was executed conveying title to the property to Wells Fargo, and a corrected foreclosure deed correcting a typographical error was executed the same day. The foreclosure deed was recorded in the probate court on October 16, 2012. The Turners did not vacate the property after the foreclosure sale.
"On November 14, 2012, Wells Fargo filed a complaint for ejectment against the Turners in the trial court. The Turners filed an answer on November 27, 2012, denying the ejectment claim and asserting certain defenses, including wrongful and unlawful foreclosure and that the notice of the foreclosure sale was defective."
Turner, 254 So.3d at 197–98. Ultimately, the trial court entered a summary judgment in favor of Wells Fargo, and the Turners appealed.
Standard of Review
"Questions regarding the legal effect of unambiguous contractual provisions are questions of law, which are reviewed de novo. Bon Harbor, LLC v. United Bank, 53 So.3d 82, 91 (Ala. 2010)." Jackson v. Wells Fargo Bank, N.A., 90 So.3d at 171.
Discussion
The Turners argue that the Court of Civil Appeals' decision is in conflict with Jackson. The particular portion of the Court of Civil Appeals' decision that the Turners argue conflicts with Jackson states:
"The Turners contend that Wells Fargo failed to give the Turners proper notice of foreclosure that is required pursuant to Section 22 of the mortgage, which states, in part, that such notice shall ‘inform the 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.’ The Turners contend that the November 30, 2011, notice of intent to accelerate sent by Carrington failed to include this explicit language. They contend that, because they did not receive proper notice required by the mortgage, Wells Fargo was precluded from foreclosing on the property and that the foreclosure sale is void.
"The November 30, 2011, notice stated, in pertinent part, that ‘[y]ou have the right to reinstate your loan after legal action has begun. You also have the
right to assert in foreclosure, the non-existence of a default or any other defense to acceleration and foreclosure.’
" ‘Substantial performance of a contract does not contemplate exact performance of every detail but performance of all important parts.’ Mac Pon Co. v. Vinsant Painting & Decorating Co., 423 So.2d 216, 218 (Ala. 1982). The November 30, 2011, notice substantially complied with the notice requirement of Section 22, and, therefore, Wells Fargo, through Carrington, substantially complied with the requirements of that section of the mortgage by sending the notice that included the aforementioned language. Therefore, there was no genuine issue of material fact before the trial court to support the Turners' claim that the notice was defective."
Turner, 254 So.3d at 203.
The Turners argue that the notice they received did...
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