Unless You Received The Proper Notification, Your Alabama Foreclosure Is Illegal

Unless You Received The Proper Notification, Your Alabama Foreclosure Is Illegal.

The Alabama Supreme Court  does not often speak to foreclosure issues, but it did recently in Jackson v. Wells Fargo which clearly establishes certain rights you have and obligations of the mortgage company before it can foreclose on you.

This is a very helpful opinion to Alabama homeowners who are facing foreclosure.

For a number of years we have argued that the banks are not giving proper foreclosure as required by the simple language of the note and mortgage.

They have been dismissive of these arguments as they were so confident the Alabama Supreme Court would protect them.

In this well reasoned opinion, a united Alabama Supreme Court rejected these arguments and said, in effect, “Hey guys — you wrote the contract (mortgage) — you have to follow it.  You can’t make up stuff as you go along.”

(Congratulations and thanks to Earl Underwood and Ken Riemer of Mobile for handling this case!)

You can read the opinion here in a pdf format and we will copy some of it below with our comments.

In Jackson, Wells Fargo foreclosed on the property but the homeowners said this was an improper foreclosure.

The most important part of the initial financing transaction (note/mortgage) is paragraph 22 of a standard Fannie Mae or Freddie Mac mortgage:

“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 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….”

Wells Fargo sent an acceleration letter but did not send a letter notifying the homeowners in compliance with paragraph 22 quoted above.

At this stage in the litigation, there remains a
fundamental failure of communication between the parties as to
the function and effect of the acceleration letter. Although
the Jacksons maintain that the acceleration letter was not the
notice of intent to accelerate the debt required by the
mortgage, the bank and the trustee tout it as evidence that
they satisfied their duty under the contract. We agree with
the Jacksons.
The parties’ confusion centers on the difference between
notice of actual acceleration and notice merely of intent to

After going through a good bit of legal analysis of cases in and out of Alabama, here is what the court held that is very helpful to Alabama homewoners:

The “Fannie Mae/Freddie Mac Uniform Instrument” mortgage
form in this case contained the species of provisions
referenced in the excerpt from Real Estate Finance Law quoted
above. Specifically, paragraph 22 of the form required the
bank to give the Jacksons a notice — before acceleration
that it was considering an acceleration, upon the failure of
certain conditions, in “not less than 30 days” following the
date of the notice. In other words, the debt could not be
accelerated until at least 30 days had passed and the Jacksons
were still in default. Under the language of this mortgage,
without proper notice of intent to accelerate, acceleration
fails and, consequently, so does the foreclosure sale. See
Sharpe v. Wells Fargo Home Mortg. (In re Sharpe), 425 B.R.
620, 643 (N.D. Ala. 2010).

The acceleration letter is just that — a notice that the
debt had been accelerated, not a notice of intent to
accelerate. The only option it contemplates is payment of the
entire debt, an approach in direct contravention of paragraph
22. Thus, the Jacksons have provided substantial evidence
that essential notice under the mortgage was not given,
resulting in failure of the acceleration, and, consequently,
failure of the foreclosure sale conducted on August 15, 2008.
The trial court’s judgment, to the extent it summarily
disposed of the breach-of-contract claim, was improper.

Here is the bottom line for Alabama homeowners who have faced a foreclosure, or facing a foreclosure:  you must look at your note and mortgage.

See what the mortgage companies have promised to do and not do.

They buy and sell so many of these loans that often they aren’t concerned with the details but the details control you, and whether the banks like it or not, the details control them.

Does your mortgage contain a similar requirement to give you notice before accelerating the note?

Did you get that notice?

If the note wasn’t received, and there has been a foreclosure, you may have rights to file suit against the mortgage company.

If you did not get the notice and a foreclosure is planned, you may have the right to sue before the foreclosure and see if the mortgage company will stop the foreclosure.

Contact Us.

You can find lots of articles and videos on our website here under the Alabama foreclosure area.

If we can provide you any information, please call us at 205-879-2447 or contact us through our website and we will get right back to you.

We look forward to chatting with you.

Have a great day!

-John G. Watts


  1. bobby eubanks says:

    I got a letter saying I owe the full balance of my loan, they are going to forclose on my home in 30 days if I don’t pay the balance of the loan in full and attorney fees, the vendor sent this letter to me by her attorney certified mail, the letter says that I owe $2085.00 default payments and I only owe $1000.00, the letter come about one week after I made two payments. I called the attorney she used and she said it did not matter that the amount that I owe is wrong and it did not matter if I catch my payment up in full, she said my client is going to sell the property on the courthouse steps and there is nothing I can do, then she hung up the phone. I then called my lender and told her of the mistake and that I am sending the money to catch up my payments, she said she would not accept the money, do not send, she hung up, I purchased my property 3 years ago and all my tax are current and I got every money order where I paid my notes, I never missed a payment for 2 years and the 3ed year I got slack on work and got behind a few times but always cought my payments up, she worked with me and it always been paid in a lump sum, my payments are $502.17 per month, I never got any notice or letter of demand or anything saying I had to catch up in 30 days or we will begin foreclosure, I got this letter from her lawyer with false amount that I owe behind payment and she is demanding $35,000 balance, there is no way I can pay this, I got a wife and 3 kids, one of my daughters is disabled and my wife is disabled, this is our only home and we got nowhere to go, we live in grand bay al, can she do this to us, we are berry worried and can not lose our home, we got no problem paying our note and I just sent her two payments a week before getting the letter from her attorney, if she would of sent me a letter saying if you do not catch up your payments in 30 days we are gonna foreclose I would of paid it, I did not get any notice. Can I send my payment to her and stop this and keep paying my payments, or is she illegally foreclosing,
    I got the letter on Feb 28, 2013 , and it says I gotta pay my loan in full, I never heard of such, can you please help,
    Call me anytime, thanks 251 643 8100

    • John Watts says:


      Sorry you are in this situation. The first thing you need to do in my judgment is to look at your Note and your Mortgage. These documents should tell you the “rules” of what you must do and what will happen if you get behind on your payments.

      See if what the lender is doing fits with what the documents say — if so then you may have a hard time fighting it. But, as often is the case, if the lender is violating the Note and Mortgage, then the lender will have problems.

      Feel free to call my office and ask to speak to Randi — she is my paralegal over foreclosure issues.

      Best wishes

      John Watts

  2. greta belser says:

    I am in communication with Wells Fargo and I am glad I found this site. I am in foreclosure and a sales date is scheduled for September 11th. I have received a Notice of Accel. and a Notice to occupant of pending Acq. However I am not sure that I received a notice of intent to Accelerate after my last modification. Also as of yesterday my preservationist sent me an email stating they were waiting on documents to further consider me for modification yet I am in active foreclosure. Basically the email was about 2 months late. Meaning I did not and still is not getting proper notifications

    • John Watts says:


      Thanks for your comment.

      If you live in Alabama, call us at 205-879-2447 and ask for Randi. She’ll get your critical information and then we can help you come up with a strategy to save your home.

      What you are describing is very frustrating having to deal with the modification process.

      If you don’t live in Alabama, get with a foreclosure defense lawyer ASAP as time is running short. You are less than 30 days from the sale date.

      Best wishes and we look forward to hearing from you.

      John Watts
      205-879-2447 (ask to speak to Randi)

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