Rosser v. Fed. Nat'l Mortg. Ass'n
| Decision Date | 30 October 2020 |
| Docket Number | 2180917 |
| Citation | 345 So.3d 647 |
| Parties | Gena ROSSER v. FEDERAL NATIONAL MORTGAGE ASSOCIATION and Bank of America, N.A. |
| Court | Alabama Court of Civil Appeals |
Kenneth James Lay of Hood & Lay, LLC, Birmingham, for appellant.
R. Aaron Chastain and Stephen C. Parsley of Bradley Arant Boult Cummings LLP, Birmingham, for appellees.
Gena Rosser appeals from the summary judgment of the Jefferson Circuit Court ("the trial court") in favor of Federal National Mortgage Association ("Fannie Mae") and Bank of America, N.A. ("the Bank"), on Fannie Mae's ejectment claim against Rosser and on Rosser's counterclaim against Fannie Mae and Rosser's third-party claims against the Bank. We affirm the summary judgment in part, reverse it in part, and remand the cause.
In May 2007, Rosser purchased real property ("the property") located in Birmingham and executed a promissory note ("the note") and a mortgage agreement ("the mortgage") with a lender identified as "Countrywide Home Loans, Inc. d/b/a America's Wholesale Lender" in obtaining a loan for the purchase. On August 2, 2011, the Bank was purportedly assigned the mortgage. On March 2, 2016, the Bank purportedly foreclosed on the property, and Fannie Mae purportedly purchased the property at a foreclosure sale.
On May 24, 2016, Fannie Mae filed a complaint in the trial court seeking the ejectment of Rosser from the property, alleging that Rosser was still living on the property. Rosser filed an answer denying the ejectment claim and asserting certain affirmative defenses, including that Fannie Mae did not have proper title to the property because, she alleged, the Bank had failed to comply with preforeclosure loss-mitigation procedures in accordance with federal guidelines, that the Bank had lacked ownership of the note and the mortgage on the property at the time of the foreclosure, and that the Bank had failed to strictly comply with the notice requirements in the mortgage. Rosser added the Bank to the action as a third-party defendant and alleged a number of claims against Fannie Mae and the Bank, including a wrongful-foreclosure claim against the Bank and a breach-of-contract claim against Fannie Mae and the Bank. In her breach-of-contract claim, Rosser specifically alleged that the Bank had not sent notices in compliance with paragraph 22 of the mortgage and quoted from that provision. The Bank and Fannie Mae filed an answer denying Rosser's claims and asserting affirmative defenses to her claims.
On September 24, 2018, Fannie Mae and the Bank filed a motion for a summary judgment on Rosser's claims and on Fannie Mae's ejectment claim. Fannie Mae argued that it was entitled to summary judgment on its ejectment claim because it had superior legal title to the property through a foreclosure deed obtained after a foreclosure sale of the property in March 2016. Fannie Mae and the Bank presented arguments against all of Rosser's claims. Regarding her wrongful-foreclosure claim, the Bank argued, among other arguments, that Rosser had not claimed, or offered any evidence indicating that the Bank had foreclosed on the property for a purpose other than to secure the debt that she owed. Fannie Mae and the Bank also argued that Rosser could not prove all the elements of a breach-of-contract claim, specifically asserting that Rosser could not establish that she had performed her obligations under the mortgage.
In support of their motion for a summary judgment, Fannie Mae and the Bank attached a transcript of Rosser's deposition and a number of documents. Documents were also attached to Rosser's deposition transcript, such as a letter addressed to Rosser dated March 25, 2015, entitled "Notice of Intent to Accelerate." The March 25, 2015, letter stated, in part:
On January 18, 2019, the trial court entered a summary judgment in favor of Fannie Mae and the Bank on all claims. On February 17, 2019, Rosser filed a motion to alter, amend, or vacate the summary judgment, and Fannie Mae and the Bank filed a response. On April 26, 2019, the trial court entered an order vacating the January 18, 2019, summary judgment and allowing Rosser to respond to Fannie Mae and the Bank's motion for a summary judgment.
On May 3, 2019, Rosser filed a response to the motion for a summary judgment.
Regarding Fannie Mae's ejectment claim, Rosser contended that Fannie Mae had not established that it had a superior possessory interest in the property through a valid foreclosure deed because, she contended, the foreclosure sale on March 2, 2016, was defective for the following reasons: the Bank was not the holder of the note at the time of the foreclosure sale, the Bank did not comply with statutory and regulatory preforeclosure loss-mitigation procedures, and the Bank did not comply with notice requirements in the mortgage. Rosser quoted paragraph 22 of the mortgage and emphasized the following language in that paragraph in asserting that she did not receive the proper notices: "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." She further asserted:
In support of her response, Rosser submitted an affidavit in which she testified as follows:
Rosser also presented arguments regarding several of her claims, including her breach-of-contract and wrongful-foreclosure claims.
On May 3, 2019, Rosser filed a motion to strike the documents attached to the motion for a summary judgment. In her motion, Rosser argued that, although some of the documents attached to the transcript of her deposition, such as the note and the mortgage, had been properly authenticated by her testimony, the other documents submitted in support of the summary-judgment motion were not certified or authenticated as required in Rule 56, Ala. R. Civ. P. On May 21, 2019, the trial court entered an order denying Rosser's motion to strike.
On May 28, 2019, the trial court again entered a summary judgment in favor of Fannie Mae and the Bank on Rosser's claims and in favor of Fannie Mae on its ejectment claim against Rosser. On June 27, 2019, Rosser filed a motion to alter, amend, or vacate the May 28, 2019, judgment. Fannie Mae and the Bank filed a response to the postjudgment motion. On July 30, 2019, the trial court entered an order denying Rosser's motion to alter, amend, or vacate.
On August 9, 2019, Rosser filed a notice of appeal to this court. We transferred the appeal to the supreme court for lack of subject-matter jurisdiction. The appeal was transferred to this court by the supreme court pursuant to § 12–2–7(6), Ala. Code 1975.
Our review of the summary judgment is de novo; we do not accord any presumption of correctness to the decision of the trial court. Williams v. Deerman, 724 So. 2d 18, 20 (Ala. Civ. App. 1998).
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