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Alabama Supreme Court Rules in Homeowners’ Favor in Case where LSA appears as Amicus

By Michael Forton and Joseph Abrams

In a recent decision announced Sept. 1, the Alabama Supreme Court held that mortgage companies are in fact, required to comply with the requirements of mortgage contracts before they can foreclose on Alabama homeowners. This case was the result of years of litigation, including an amici curiae brief filed this year by two Legal Services Alabama attorneys Joseph Abrams, and Michael Forton, Director of Advocacy. In our brief, LSA argued the legal, economic and social justifications of preserving homeowners’ rights, and requiring mortgage companies to strictly comply with their own rules.

The case began in February 2012, when Wells Fargo sold the Turners’ home and then sought to eject them from their home.  In the trial, the Turners contended that Wells Fargo did not advise them of their rights, as required by the mortgage, before foreclosing on their home.  The Turners further contended that the notice they did receive, was actually misleading. The Turners lost the case and appealed.

After several years in the appellate court system, including a negative decision from the Alabama Court of Civil Appeals, the Alabama Supreme Court agreed to consider the case this past February. The following month, Legal Services Alabama, along with attorneys for the National Consumer Law Center, filed a brief on behalf of Alabama’s low income homeowners and Alabama’s consumers.

On September 1, 2017, the Court released its decision in Turner v. Wells Fargo Bank. In the Court's opinion, they stated that the Turners argued Alabama law "requires strict compliance, not merely substantial compliance. We agree."  The Court went on to say, "Wells Fargo failed to provide the Turners with proper notice under the mortgage. Accordingly, because Wells Fargo failed to comply with the requirements of the mortgage; the mortgage sale conducted on February 27, 2012, failed.”

Mr. and Mrs. Turner were represented during the process by the firm of Hood and Lay in Birmingham. Kenneth Lay, the attorney for the Turners who filed the petition to the Supreme Court, stated:

“This is a great win for all Alabama homeowners. This decision by the Alabama Supreme Court means that the huge mortgage companies will be held to the same rules and laws as regular Alabama citizens,” Lay said. “To me, this issue was always very clear, that they should follow the principles set out in their own contract, but I’m very glad today that the Supreme Court has agreed. This decision means that Alabama homeowners will not have their homes taken away without the legal protections that they deserve, and to which they are entitled.”

Lay went on to say, “I am very thankful for this result. I’m very glad for the help of the National Consumer Law Center and Legal Services Alabama. I asked them both to join me in this case. I believe that together we can work for the betterment of all Alabamians.”

Joseph Abrams, Staff Attorney with LSA’s Tuscaloosa office and member of LSA’s High Impact Litigation Unit, stated that this decision is especially important in Alabama, since banks are not required to go to court before foreclosing.

“In judicial foreclosure states, banks must petition the court and obtain approval before selling a person’s home,” Abrams said. “In a non-judicial foreclosure process, such as Alabama, these protections are not available.  That shifts the burden from the bank to the family trying to keep their home. That is why this decision is so important: it puts the burden back where it belongs.”

This decision will mean that all Alabama homeowners will receive the rights offered by their mortgage contracts before their homes can be taken. For the Turners, and many others, it means another chance at The American Dream. LSA is very proud to have been involved in this case.

 

  • LSC

    LSA is a grantee of the Legal Services Corporation.