Barnes v. U.S. Bank Nat. Assoc., [Ms. 2180699, June 26, 2020] __ So. 3d __ (Ala. Civ. App. 2020). The court
(Thompson, P.J.; Moore and Donaldson, JJ., concur; Edwards, J., concurs
in the result) reverses the Jefferson Circuit Court’s judgment in
favor of the mortgagee in an ejectment action. Citing
Ex parte Turner, 254 So. 3d 207 (Ala. 2017), the court holds that the foreclosure notice
failed to strictly comply with the notice required by the mortgage. Paragraph
22 of the mortgage stated in pertinent part that “[t]he notice shall
further inform 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 of the mortgaged
property.” Ms. *3.
The servicer of the loan, Ocwen Loan Servicing, LLC, sent a foreclosure
notice stating that “You may have the right to assert in court the
non-existence of a default or any other defense to acceleration or foreclosure.”
Ms. *4. The court holds the notice did not meet the strict compliance
standard of
Ex parte Turner:
Contrary to the trial court’s conclusion, and U.S. Bank’s appellate
argument, Ocwen’s default notice does not “strictly comply”
with paragraph 22 in at least two respects. First, … Ocwen’s
notice contains no reference to a right to affirmatively seek relief in
a court action directly challenging the foreclosure …. Second,
the reference in Ocwen’s notice is not unequivocal because it refers
to what rights Barnes “may” have….”
Ms. *18.