from Jefferson Circuit Court (CV-14-901195)
Denault and Carol Denault have appealed from separate
September 18, 2017, orders entered by the Jefferson Circuit
Court ("the trial court") that (1) entered a
summary judgment in favor of Federal National Mortgage
Association ("FNMA") regarding its claim against
the Denaults "in the nature of an action in
ejectment," Ala. Code 1975, § 6-6-280(b); (2)
entered a summary judgment in favor of Seterus, Inc.,
regarding the Denaults' third-party claims against
Seterus alleging, among other things, wrongful foreclosure;
and (3) entered a summary judgment in favor of Bank of
America, N.A., regarding the Denaults' third-party claims
against Bank of America alleging, among other things,
wrongful foreclosure. While the appeal was pending, the
Denaults entered into a pro tanto settlement with Bank of
America, and the appeal has been dismissed with regard to the
third-party claims against Bank of America.
dismiss the Denaults' appeal from the September 2017
orders in favor of FNMA and Seterus because a final judgment
has not been entered in this case.
and Procedural History
February 17, 2006, Thomas Denault executed a promissory note
in the principal amount of $156, 000 ("the promissory
note") to America's Wholesale Lender. America's
Wholesale Lender is allegedly a trade name of Countrywide
Home Loans, Inc. The promissory note was to be repaid in
monthly installments of $947.87, due on the first day of each
month beginning on April 1, 2006, with the final payment due
on March 1, 2036. The promissory note specifically states
that it would be secured by a mortgage dated the same date as
the promissory note.
February 17, 2006, the Denaults executed a mortgage
("the mortgage") on their home in Trussville as
security for the promissory note. The mortgage was recorded
in the Jefferson Probate Court, and the mortgage states that,
after recording, it was to be returned to "Countrywide
Home Loans, Inc." Also, the mortgage states that
Mortgage Electronic Registration Systems, Inc.
("MERS"), was the mortgagee, but that MERS was
acting solely as nominee for America's Wholesale Lender
and its successors and assigns. The mortgage granted MERS,
its successors and assigns, a power of sale in conjunction
with its right to foreclose the mortgage. The mortgage also
stated that the promissory note and mortgage could be sold
without prior notice to the Denaults and that such a sale
might result in a change in the entity servicing the
loan servicer for Countrywide Home Loans, Inc., eventually
merged into Bank of America. It is undisputed that Bank of
America, or its predecessors in interest, was the servicer of
the Denaults' loan from its inception until October 1,
Denaults made each monthly installment payment due under the
terms of the promissory note and mortgage until July 6, 2012.
The Denaults did not make any monthly installment payments
after July 6, 2012. On July 17, 2012, MERS executed an
assignment purporting to assign the mortgage "together
with the note(s) and obligations therein described" to
Bank of America. The assignment reflected America's
Wholesale Lender as the original lender and referenced the
Denaults and the original loan principal amount of $156, 000.
The assignment to Bank of America was recorded in the
Jefferson Probate Court.
October 1, 2012, Bank of America transferred servicing of the
Denaults' loan to Seterus. The Denaults did not have any
contact with Bank of America after October 1, 2012.
October 4, 2012, Bank of America executed an assignment
purporting to assign the mortgage "together with the
note(s) and obligations therein described" to FNMA. The
assignment reflected America's Wholesale Lender as the
original lender and referenced the Denaults and the original
principal loan amount of $156, 000. The assignment further
states: "Contact [FNMA] for this instrument c/o Seterus
..., which is responsible for receiving payments." The
assignment to FNMA was recorded in the Jefferson Probate
13, 2013, Seterus contacted Thomas Denault to discuss the
status of the loan, but Seterus and Thomas Denault were
unable to agree on any payment arrangement for the loan.
August 29, 2013, Seterus sent a letter to the Denaults that
"RE: Loan number ... serviced by Seterus.
"Your loan is in default, due to the non-payment of the
"Amount Due: $15, 744.72
"Amount Due By: October 03, 2013 ('Expiration
"We hereby demand that you bring your loan up-to-date
('cure this default') by payment of the amount shown
above. In addition, your regular payment may become due by
the Expiration Date. The delinquent amount of principal
continues to accrue interest.
"IF THE DEFAULT IS NOT CURED ON OR BEFORE THE EXPIRATION
DATE, THE LOAN OWNER AND WE INTEND TO ENFORCE THE LOAN
OWNER'S RIGHTS AND REMEDIES AND MAY PROCEED WITHOUT
FURTHER NOTICE TO COMMENCE FORECLOSURE PROCEEDINGS.
ADDITIONAL FEES SUCH AS FORECLOSURE COSTS AND LEGAL FEES MAY
BE ADDED PURSUANT TO THE TERMS OF THE LOAN DOCUMENTS.
"If you have any questions, please contact us at
[telephone number omitted]. For borrowers having difficulty
making their payments, we have loan specialists available
Monday-Thursday 5 a.m. to 9 p.m., Friday 5 a.m. to 6 p.m.,
and Saturday 9 a.m. to 12 p.m. (Pacific time). Saturday hours
to the trial court's orders, the August 2013 letter
complied with the pre-foreclosure requirements of the
mortgage and informed the Denaults of the availability of
assistance for borrowers who were having difficulty making
January 14, 2014, Seterus's counsel sent the Denaults a
"Notice of Acceleration of Promissory Note and
Mortgage." The January 2014 notice states, in pertinent
"Our Client: Seterus, Inc., as servicer for [FNMA]
"Loan No. ....
"YOU ARE HEREBY NOTIFIED that the terms of the
Promissory Note and Mortgage for the above referenced loan
dated the 17th day of February, 2006, are in default. By
virtue of default in the terms of said Note and Mortgage,
[FNMA] hereby accelerates to maturity the entire remaining
unpaid balance of the debt, including attorney's fees,
accrued interest, and other lawful charges. The amount due
and payable as of the date of this letter is $160, 441.97.
This payoff amount will change on a daily basis. If you wish
to pay off your mortgage, please call our office at
[telephone number omitted] to obtain an updated figure.
Additionally, if you are interested in foreclosure
alternatives, please contact your servicer, Seterus, Inc. at
[telephone number omitted].
"We are at this time commencing foreclosure under the
terms of the Mortgage, and enclosed is a copy of the
foreclosure notice. Please note that the foreclosure sale is
scheduled for February 26, 2014. For further information
regarding this matter, please call [telephone number
January 14, 2014, Seterus's counsel sent the Denaults an
additional letter and a copy of the publication notice for
the foreclosure sale, which was to be published on January
15, January 22, and January 29, 2014. It is undisputed that
the notice was properly published on those dates. The
additional letter from Seterus's counsel states, in
"RE: Loan Number: ....
"Your mortgage loan servicer, Seterus, Inc., has
referred your loan to us for foreclosure. However, you may
still have foreclosure prevention alternatives available to
"If you are interested in avoiding foreclosure, you
should contact your servicer about your situation so that
they can determine whether you qualify for temporary or
long-term relief. Your servicer may have previously sent you
a letter advising you of possible alternatives to
foreclosure, along with the documents for you to complete and
return to them to be evaluated for these alternatives. If you
did not receive or no longer have the documents, ...