Campbell v. Bank of Am., N.A.
Decision Date | 13 September 2013 |
Docket Number | 2100246. |
Citation | 141 So.3d 492 |
Parties | Brenda F. CAMPBELL and C.W. Campbell v. BANK OF AMERICA, N.A. |
Court | Alabama Court of Civil Appeals |
OPINION TEXT STARTS HERE
Alabama Supreme Court 1111284.
Kenneth J. Lay, Birmingham, for appellants.
John T. Bender, Mobile, for appellee.
On Application for Rehearing
This court's opinion of March 30, 2012, is withdrawn, and the following is substituted therefor.
Brenda F. Campbell and her son, C.W. Campbell, appeal from a judgment in favor of Bank of America, N.A. (“Bank of America”), in an ejectment action. We affirm.
The Jefferson Circuit Court's judgment recites the following facts:
Following a bench trial, the circuit court entered a judgment determining that the United States Department of Housing and Urban Development (“HUD”) loss-mitigation procedures were mandatory, that Bank of America had substantially complied with those procedures, and that Bank of America had established its right to eject the Campbells from the property. The Campbells filed a timely postjudgment motion and requested a hearing on that motion. The circuit court set a date for a hearing, but it denied the motion before the hearing was held. The Campbells timely appealed. The supreme court subsequently transferred the appeal to this court pursuant to Ala.Code 1975, § 12–2–7(6).
The Campbells argued in the circuit court and they now maintain on appeal that Bank of America's alleged noncompliance with HUD loss-mitigation alternatives to foreclosure constitutes a defense to a foreclosure action. An ejectment action following a nonjudicial foreclosure, however, is not a “foreclosure action,” and a defense in such an action asserting errors in the foreclosure process is a collateral attack on a foreclosure. See Dewberry v. Bank of Standing Rock, 227 Ala. 484, 493, 150 So. 463, 470 (1933) ( ). Accord Pinkert v. Lamb, 215 Ark. 879, 883, 224 S.W.2d 15, 17 (1949) ( ); Dime Sav. Bank, FSB v. Greene, 2002 Pa.Super. 392, 813 A.2d 893, 895 (2002) ( ).
In a direct attack on a foreclosure—that is, an action seeking declaratory and injunctive relief to halt the foreclosure sale before it occurs see, e.g., Ferguson v. Commercial Bank, 578 So.2d 1234 (Ala.1991); Bank of Red Bay v. King, 482 So.2d 274 (Ala.1985); and Woods v. SunTrust Bank, 81 So.3d 357 (Ala.Civ.App.2011), or an action to set aside the sale after it has occurred, see, e.g., Beal Bank, SSB v. Schilleci, 896 So.2d 395 (Ala.2004); Kelly v. Carmichael, 217 Ala. 534, 536, 117 So. 67, 69 (1928); and Browning v. Palmer, 4 So.3d 524 (Ala.Civ.App.2008)—any circumstance in the foreclosure process that would render the foreclosure sale void or voidable may be asserted. In a proceeding involving a collateral attack on a foreclosure, however, only those circumstances that would render the foreclosure sale void may be raised as an affirmative defense.
“[T]he true distinction between void and voidable acts, orders, and judgments, is, that the former can always be assailed in any proceeding, and the latter, only in a direct proceeding.” Alexander v. Nelson, 42 Ala. 462, 469 (1868). See, e.g., Carlton v. Owens, 443 So.2d 1227, 1231 (Ala.1983) ( ); City of Dothan v. Dale Cnty. Comm'n, 295 Ala. 131, 324 So.2d 772 (1975) ( ); 23 Am.Jur.2d Deeds § 162 (2002) ( ).
One commentator has identified three types of flaws in the foreclosure process: those that will render the foreclosure sale void; those that will render the sale merely voidable; and those that are insignificant.
“[W]hen the power [of sale in a mortgage] is exercised in violation of the laws or of the security instrument terms, questions arise as to whether compliance with the laws or instrument provisions is a prerequisite for the exercise of the power so that the purported sale is utterly void, or whether the violation is merely sufficiently egregious as to produce a voidable sale, or whether it is so insignificant as to have no impact on the sale.”
____________________
12 Thompson on Real Property §§ 101.04(c)(2) and 101.04(c)(2)(i) at 401–02 (Thomas ed.1994) (footnotes omitted).
Id., § 101.04(c)(2)(ii) at 403.
In Alabama, the following circumstances may render a foreclosure sale void: (1) when the foreclosing entity does not have the legal right to exercise the power of sale, as, for example, when that entity is neither the assignee of the mortgage, Sturdivant v. BAC Home Loans Servicing, LP, [Ms. 2100245, December 16, 2011] ––– So.3d –––– (Ala.Civ.App.2011), nor the holder of the promissory note, Perry v. Federal Nat'l Mortg. Ass'n 100 So.3d 1090 (Ala.Civ.App.2012), at the time it commences the foreclosure proceedings; (2) when “the debt secured by the mortgage was fully paid prior to foreclosure,” Lee v. Gaines, 244 Ala. 664, 666, 15 So.2d 330, 331 (1943); (3) when the foreclosing entity failed to give notice of the time and place...
To continue reading
Request your trial-
Adams v. Bank of Am., N.A.
...of Civil Appeals of Alabama was presented with a similar issue, albeit in a different procedural posture, in Campbell v. Bank of America, N.A. , 141 So.3d 492 (Ala. Civ. App. 2012). In Campbell , the court was tasked with determining whether a debtor, whose mortgage contract required the le......
-
Tidmore v. Citizens Bank & Trust, 2150834
...defenses to an ejectment action.’ " Pittman v. Regions Bank, 226 So.3d 193 (Ala. Civ. App. 2016) (quoting Campbell v. Bank of America, N.A., 141 So.3d 492, 499 (Ala. Civ. App. 2012) ). Among those irregularities are the following issues raised by Tidmore. See, generally, Pittman v. Regions ......
-
Stiff v. Equivest Fin., LLC
...ground for setting the sale aside,"' Hayden v. Smith, 216 Ala. 428, 430, 113 So. 293, 295 (1927)."Campbell v. Bank of America, N.A., 141 So. 3d 492, 494-96 (Ala. Civ. App. 2012). Drawing the analogy, I conclude that the defect here was, at worst, "'not so egregious as to make the sale utter......
-
Pittman v. Regions Bank
...would render the foreclosure sale void, may be raised as affirmative defenses to an ejectment action." Campbell v. Bank of America, N.A., 141 So.3d 492, 499 (Ala. Civ. App. 2012). In Campbell, this court explained: "An ejectment action following a nonjudicial foreclosure ... is not a ‘forec......