Circuit Court, CV-12-903740; Court of Civil Appeals, 2150320
PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL
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., [Ms. 2150320, September 30, 2016] ___ So.3d
___ (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
and Procedural History
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, ___ So.3d at ___.
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, ___ So.3d at ___. Ultimately, the trial
court entered a summary judgment in favor of Wells Fargo, and