Sandra Maiden v. Federal National Mortgage Association.

86 So. 3d 368, 2011 WL 6117938, 2011 Ala. Civ. App. LEXIS 340
CourtCourt of Civil Appeals of Alabama
DecidedDecember 9, 2011
Docket2100881
StatusPublished
Cited by1 cases

This text of 86 So. 3d 368 (Sandra Maiden 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
Sandra Maiden v. Federal National Mortgage Association., 86 So. 3d 368, 2011 WL 6117938, 2011 Ala. Civ. App. LEXIS 340 (Ala. Ct. App. 2011).

Opinion

THOMPSON, Presiding Judge.

Sandra Maiden appeals from a judgment of the Jefferson Circuit Court denying her motion to set aside a default judgment the court had entered in favor of the Federal National Mortgage Association (“FNMA”). For the reasons set forth herein, we reverse the trial court’s judgment.

This is the second time this case has been before this court. See Maiden v. Federal Nat’l Mortg. Ass’n, 69 So.3d 860 (Ala.Civ.App.2011). In the opinion issued in the first appeal, we set forth the following factual and procedural background:

“On December 16, 2009, FNMA filed an ejectment action against Jerry Hardy and Patricia Hardy. It alleged that Jerry Hardy had executed a mortgage, which, after being assigned to another mortgage company, had been foreclosed. FNMA stated that the real property securing the mortgage (‘the property’) had been conveyed to it by a special warranty deed. It asserted that it had served the Hardys with a written demand for possession of the property but that they had failed to vacate the property. FNMA sought an order ejecting the Hardys from the property. It attached to its complaint a foreclosure deed indicating that Everhome Mortgage Company (‘Everhome’) had been assigned the mortgage from the original mortgagee, that Everhome had foreclosed on the mortgage because of default in the payment of the debt the mortgage secured, and that Everhome had purchased the property at the foreclosure sale on November 19, 2009. FNMA also attached to its complaint a copy of a special warranty deed, executed on August 14, 2009, conveying the property from Everhome to FNMA. The Hardys and Sandra Maiden are listed on the deed as ‘mortgagors.’ Finally, FNMA attached to its complaint a copy of an unsigned letter, dated November 19, 2009, sent on behalf of Everhome and addressed to the estate of Jerry Hardy, who had died, Patricia Hardy, and Sandra Maiden. The letter, titled ‘Demand for Possession,’ informed the Hardys and Maiden that Everhome had purchased the property at a foreclosure sale, and it demanded that the Hardys and Maiden vacate the property.
“On December 29, 2009, FNMA filed an amended complaint adding Maiden as a defendant on the basis that she currently resided on the property. The record reflects that Maiden was served with process on January 6, 2010.
“Maiden did not file an answer to the amended complaint, and, on February 11, 2010, FNMA filed an application for the entry of a default judgment against her. FNMA also filed a motion to dismiss Jerry Hardy and Patricia Hardy on the ground that they no longer occupied the property. On February 23, 2010, the trial court entered the requested default judgment against Maiden, awarding possession of the property to FNMA, and it granted FNMA’s motion to dismiss Jerry Hardy and Patricia Hardy from the action.
“On March 22, 2010, Maiden filed a motion to set aside the default judgment. In her motion, she asserted that she had a meritorious defense to FNMA’s action in that ‘there was an improper foreclosure of the property,’ although she stated that, without discovery, she would ‘not be able to fully discern the exact extent to which the foreclosure was improper.’ She also stated that she had a defense on the basis of ‘estoppel due to misrepresentation.’ Maiden asserted that FNMA would not be prejudiced by the setting aside of the default judgment because the judgment had been entered less than 30 days be[371]*371fore Maiden filed her motion and, as a result, that the automatic stay of proceedings to enforce the judgment provided by Rule 62, Ala. R. Civ. P., was still in force. Thus, she argued, FNMA had ‘not wasted any time or resources initiating collections efforts.’ Finally, she asserted that the default judgment did not result from culpable conduct on her part. She stated that she had been ‘under the honest impression that she would be unable to be heard in court because she had been unable to receive or relay any information to the servicer of the mortgage account prior to the foreclosure date’ and that, once she realized the default judgment had been entered, she retained counsel. Maiden argued that, under Alabama law, cases should be decided on the merits whenever practicable and that, because of her financial situation, failure to set aside the default judgment would leave her ‘homeless and without any resources.’ Maiden supported her motion with an affidavit in which she stated, in pertinent part:
“ T have lived at [the property] since March 3, 2003. I was willed the property after my fiance’s death in October 2005. Since that date, I have maintained my monthly mortgage payment. I attempted to speak regularly with [Everhome], but was unable to do so because my name was not on the account. I attempted, numerous times, to send the documents necessary to add me to the account, but I could never get anyone at [Everhome] to verify receipt of documents or let me know what other documents needed to be sent.
“ T received notice of the pending lawsuit on January 6, 2010. I sincerely thought that because the mortgage company would not speak to me, neither would the court. I was without legal counsel at that time. After I was given authorization to receive information about the account at [Ever-home], I learned that there was a default judgment against me. I notified an attorney and retained counsel immediately.’
“The trial court set Maiden’s motion for a hearing.
“On April 5, 2010, after the hearing on Maiden’s motion, the trial court entered an order that provided:
“ ‘This matter comes before the court on Defendant Maiden’s motion to set aside entry of default judgment. The court, having considered [Maiden]’s motion under the criteria established by the [Supreme] Court in Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So.2d 600 (Ala.1988), and being satisfied that due to [Maiden]’s not being privy to the real estate mortgage, the foreclosure of which precipitated [FNMAJ’s ejectment action, and therefore being satisfied of [Maiden]’s inability to secure evidence with regard to the existence, or not, of a default in the said mortgage prior to the time that [Maiden] came into possession of the said parcel of real property necessary to meet the meritorious defense prong of the Kirtland analysis, the following is hereby ordered:
“ ‘1. [Maiden]’s motion to set aside entry of default in this matter is hereby continued;
“ ‘2. [FNMA] shall produce for an in camera inspection the account history of the said real estate mortgage for the court’s determination of whether or not the said loan was in default prior to the time that [Maiden] allegedly commenced making monthly installment payments thereunder;
[372]*372“ ‘3. The said in camera inspection shall take place on a date within the next two weeks to be determined by the court and set by separate order to be issued by the court.
“ ‘4. Following an in camera inspection, the court shall then rule on [Maiden]’s motion to set aside entry of default.’
“Although the record is silent on the issue, the parties agree in their appellate briefs that FNMA did not produce the account history relative to the foreclosed mortgage for inspection by the trial court. The trial court took no further action on Maiden’s motion.

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Bluebook (online)
86 So. 3d 368, 2011 WL 6117938, 2011 Ala. Civ. App. LEXIS 340, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sandra-maiden-v-federal-national-mortgage-association-alacivapp-2011.