Edith Cooper v. Federal National Mortgage Association.

96 So. 3d 102, 2011 WL 2573462, 2011 Ala. Civ. App. LEXIS 171
CourtCourt of Civil Appeals of Alabama
DecidedJune 30, 2011
Docket2090983
StatusPublished
Cited by2 cases

This text of 96 So. 3d 102 (Edith Cooper v. Federal National Mortgage Association.) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Edith Cooper v. Federal National Mortgage Association., 96 So. 3d 102, 2011 WL 2573462, 2011 Ala. Civ. App. LEXIS 171 (Ala. Ct. App. 2011).

Opinion

BRYAN, Judge.

Edith Cooper (“Edith”) appeals from a summary judgment in favor of the Federal National Mortgage Association (“Fannie Mae”) in an ejectment action. We affirm.

On November 24, 2003, Edith’s father, Mason Dee Cooper (“Mason”), a widower who owned a house located on Dartmouth Avenue in Bessemer (“the house”), mortgaged the house to Wells Fargo Home Mortgage, Inc. Mason was the sole owner of the house when he executed the mortgage, and he was the only person named as a “Borrower” in the mortgage. Subsequent to the execution of the mortgage, Wells Fargo Bank, N.A. (“the lender”), became the successor by merger to Wells Fargo Home Mortgage, Inc.

The mortgage is a reverse mortgage. Reverse mortgages are designed to enable elderly homeowners to convert the equity in their homes to monthly streams of income or lines of credit. See U.S. Department of Housing and Urban Development, Home Equity Conversion Mortgage Handbook, Dir. No. 4235.1 REV-1 (Nov. 18, 1994) (“HUD Handbook”) at ch. 1-2. “Unlike a traditional ‘forward’ residential mortgage, which is repaid in periodic payments, a reverse mortgage is repaid in one payment, after the death of the borrower, or when the borrower no longer occupies the property as a principal residence.” HUD Handbook at ch. 1-3B. Consequently, Paragraph 9 of the mortgage provided:

“(a) ... Lender may require immediate payment in full of all sums secured by this [mortgage] if:
“(i) A Borrower dies and the [house] is not the principal residence of at least one surviving Borrower; or
“(ii) All of a Borrower’s title in the [house] ... is sold or otherwise transferred .... ”

Although the mortgage required the lender to give Mason notice of default if his title in the house were sold or otherwise transferred, it did not require the lender to give anyone notice of default if Mason died and the house was no longer the principal residence of at least one surviving borrower.

On April 10, 2008, Mason executed a quitclaim deed with respect to the house, which named Edith, who is his sole heir, as the grantee. However, Mason continued to live in the house until he died on May 6, 2008. After Mason’s death, Edith began living in the house.

On January 9, 2009, the lender held a foreclosure sale at the Jefferson County Courthouse in Birmingham. Fannie Mae was the highest bidder at the foreclosure sale, and the auctioneer who conducted the sale executed a foreclosure deed conveying the house to Fannie Mae.

[104]*104On April 2, 2009, Fannie Mae sued Mason, stating a claim of ejectment and seeking possession of the house. Subsequently, Fannie Mae amended its complaint to add Edith as an additional defendant. Answering, Edith denied the allegations of the complaint and, as affirmative defenses, asserted that Fannie Mae was not entitled to possession of the house because it did not own legal title to the house because of “defective notice,” “defective sale,” and “wrongful foreclosure.”

Fannie Mae moved for a summary judgment on the ground that it owned legal title to the house by virtue of the foreclosure deed. Opposing the summary-judgment motion, Edith asserted, among other things, that Fannie Mae was not entitled to possession of the house because, she said, the foreclosure was wrongful because, she said, (1) the lender had failed to give her the notice of default required by Paragraph 9 of the mortgage and (2) the foreclosure notice published in the newspaper stated that the foreclosure sale would be held at the Jefferson County Courthouse in Birmingham rather than the Jefferson County Courthouse in Bessemer. In addition, she asserted that Fannie Mae was not entitled to a summary judgment because, she said, a genuine issue of material fact existed regarding whether Fannie Mae was entitled to possession of the house.

Following a hearing, the trial court entered a summary judgment in favor of Fannie Mae with respect to its claim against Edith and dismissed the claim against Mason. Thereafter, Edith moved to vacate the judgment, and the trial court denied that motion. Edith then timely appealed to this court. Due to lack of jurisdiction, we transferred the appeal to the supreme court, which transferred the appeal back to this court pursuant to § 12-2-7(6), Ala.Code 1975.

“We review a summary judgment de novo. American Liberty Ins. Co. v. AmSouth Bank, 825 So.2d 786 (Ala.2002).

“ ‘We apply the same standard of review the trial court used in determining whether the evidence presented to the trial court created a genuine issue of material fact. Once a party moving for a summary judgment establishes that no genuine issue of material fact exists, the burden shifts to the non-movant to present substantial evidence creating a genuine issue of material fact. “Substantial evidence” is “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” In reviewing a summary judgment, we view the evidence in the light most favorable to the nonmovant and entertain such reasonable inferences as the jury would have been free to draw.’
“Nationwide Prop. & Cas. Ins. Co. [v. DPF Architects, P.C.], 792 So.2d [369] at 372 [ (Ala.2001) ] (citations omitted), quoted in American Liberty Ins. Co., 825 So.2d at 790.”

Potter v. First Real Estate Co., 844 So.2d 540, 545 (Ala.2002).

Edith first argues that the trial court erred in entering a summary judgment in favor of Fannie Mae because, she says, the trial court held that she lacked standing to challenge the propriety of the foreclosure sale. First, we note that the trial court did not hold that she lacked standing to challenge the propriety of the foreclosure sale; rather, the trial court held that, because she was not a party to the mortgage, the mortgage did not require the lender to send her the individual notice of the foreclosure sale ■ that the mortgage required the lender to send a borrower who was a [105]*105party to the mortgage. In pertinent part, the judgment of the trial court stated:

“4. The Court does not find persuasive the arguments of [Edith] that [the lender] did not comply with all requirements of the Mortgage in conducing the foreclosure sale. It appears to the Court that [Fannie Mae] has produced sufficient evidence to prove that all proper notices were provided as required by the Mortgage.... [Edith] was not a party to the Mortgage, or underlying promissory note, but only presents herself before this court as an heir to the mortgagee, who is now deceased. According to the terms of the Mortgage, [Edith] therefore did not have any right to notice under the Mortgage that the sale was about to take place. (Mortgage at [Paragraphs] 16, 20.) The foreclosure sale was properly noticed in a newspaper of general circulation in Jefferson County, Alabama. Constantine v. First Alabama Bank of Birmingham, 465 So.2d 419, 422 (Ala.Civ.App.1984) (It has been held that publication of a foreclosure notice in [the Alabama Messenger] is valid.’)- All proper notices having been given, the sale was proper and conducted in accordance with the terms of the Mortgage.”

(Emphasis added.)

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Cite This Page — Counsel Stack

Bluebook (online)
96 So. 3d 102, 2011 WL 2573462, 2011 Ala. Civ. App. LEXIS 171, Counsel Stack Legal Research, https://law.counselstack.com/opinion/edith-cooper-v-federal-national-mortgage-association-alacivapp-2011.