source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    Felicia WILLIAMS. v. WELLS FARGO BANK, N.A.
    2140890.
    Court of Civil Appeals of Alabama.
    April 15, 2016.
    Rehearing Denied June 10, 2016.
    Certiorari Denied Aug. 12,2016 Alabama Supreme Court 1151012.

      Kenneth James Lay of Hood <& Lay, LLC, Birmingham, for appellant.
    D. Keith Andress, Catherine Crosby Long, and Jade E. Sipes of Baker, Donel-son, Bearman, Caldwell & Berkowitz, P.C., Birmingham, for appellee.
   PITTMAN, Judge.

Felicia Williams appeals from a summary judgment entered in favor of Wells Fargo Bank, N.A. (“Wells Fargo”), by the Tuscaloosa Circuit Court (“the trial court”) in an ejectment action. We affirm.

Facts and Procedural History

In March 2005, Williams borrowed $135,945 from First Magnus Financial Corporation (“First Magnus”) in order to buy a parcel of real property located at 12340 South Pointe Drive, Moundville, which is in Tuscaloosa County (“the property”); executed a promissory note (“the note”) payable to the order of First Mag-nus in the principal amount of $135,945; and executed a mortgage (“the mortgage”) on the property naming Mortgage Electronic Registration Systems, Inc. (“MERS”), as nominee for First Magnus, as the mortgagee. The legal description of the property in the mortgage erroneously omitted the lot number of the property; however, the mortgage correctly identified the street address of the property as 12340 South Pointe Drive, Moundville. Sometime before April 21, 2005, First Magnus executed an indorsement on the note making it payable to the order of Wells Fargo, and on April 21, 2005, Wells Fargo acquired possession of the note.

Williams failed to make most of the payments that were due on the note before March 2009. Wells Fargo scheduled several foreclosure sales before January 2009 but canceled them. In March 2009, Wells Fargo scheduled a foreclosure sale for May 7, 2009, and published a notice of the May 7, 2009, foreclosure sale in a newspaper published in Tuscaloosa County once a week for three consecutive weeks before May 7, 2009. At the foreclosure sale on May 7, 2009, Wells Fargo bid $172,824.17 for the property, which was the highest bid, and the auctioneer executed a-foreclosure deed conveying the property to Wells Fargo. That same day, Wells Fargo’s counsel sent Williams a letter demanding possession of the property by certified mail; the letter was returned with a stamp indicating that it was being returned because it had been “unclaimed.”

On May 18, 2009, Wells Fargo sued Williams, stating a claim of ejectment and seeking possession of the property. When Williams failed to file an answer or otherwise defend, Wells Fargo sought and obtained an entry of default and a default judgment against Williams. Thereafter, Williams filed a motion asking the trial court to set aside the default judgment. In support of that motion, Williams filed an affidavit in which she gave the following testimony that is pertinent to the issues in this appeal:

“9. In January of 2009,1 signed a contract with FML Law Center out of Irvine, California to try to work out a loan modification agreement with my lender; I paid them a $1,000 down payment to do so.
“10. When I began receiving notices for the foreclosure I contacted FML Law Center with the understanding that they were attorneys representing my interests in [my] home.”

(Emphasis added.)

In response to Williams’s motion, the trial court entered an order setting aside the default judgment. Thereafter, Williams filed an answer to Wells Fargo’s complaint and a counterclaim. Her answer denied that Wells Fargo was entitled to possession of the property and asserted various affirmative defenses. Williams’s counterclaim stated several claims against Wells Fargo; however, only one of Williams’s claims, her breach-of-contract claim based upon Wells Fargo’s alleged breach of a contract to modify her loan, is pertinent to the issues in this appeal. Williams’s breach-of-contract claim alleged:

“19. A contract existed between [Wells Fargo] and Ms. Williams to modify her loan.
“20. Wells Fargo breached that agreement.
“21. As a result of said breach, Ms. Williams was damaged.”

After answering Williams’s counterclaim, Wells Fargo, in December 2011, filed a motion for a summary judgment with respect -to Williams’s counterclaim. In support of its motion, Wells Fargo filed an affidavit executed by Erin A. Hirzel Roesch. Roesch’s affidavit stated:

“1. My name is Erin A. Hirzel Roesch, and I am a Vice President of Loan Documentation for [Wells Fargo]. This affidavit is based upon my personal knowledge obtained from my investigation into the documents located within Wells Fargo’s loan file for [Williams].
“2. On March 29, 2005, Williams executed [the note] in favor of [First Magnus], which was secured by [the mortgage on the property]. True and correct copies of the [n]ote and [m]ort-gage are attached hereto as Exhibit A.
“3. [First Magnus] [i]ndorsed the [n]ote to Wells Fargo. See [n]ote contained in Exhibit A.
“4. Williams failed to make timely payments beginning with her July 2005 contractual due date. A true and correct copy of the [l]oan’s payment history, including all charges and debits to Williams’fe] account, is attached hereto as Exhibit B.
“5. Williams made no payments from July 1, 2005 through October 31, 2005. She made a payment on November 9, 2005, which was applied to her July 2005 payment. Williams made no payment in December 2005.
“6. Williams failed to make any payments in January, February, and March 2006. She made payments during April through July 2006. Following her July 5, 2006 payment, Williams was contractually due for her November 1, 2005 payment, meaning she was nine payments behind (exclusive of all other loan charges associated with delinquent payments).
“7. Due to Williams’[s] default, foreclosure was initiated during October 2006, with a scheduled sale date of December 7, 2006. However, this sale date was postponed due to an issue involving the [property's legal description.
“8. This issue was resolved, but when Williams failed to make any payments in 2007, the foreclosure process was resumed in December 2007. The new scheduled sale date was February 14, 2008.
“9. On February 7, 2008, the foreclosure sale was placed on hold in order to work -with Williams to try to keep her in the [property. ■ But when Williams failed to communicate with Wells Fargo, ■the foreclosure process was resumed February 25, 2008.
“10.' A new foreclosure sale date was ■'set for April 24, 2008. On April 10, .2008, this foreclosure sale was .placed on hold to again work with Williams for her to, keep the [pjroperty.. On June 26, ■2008, Williams’[s] loss mitigation was denied due ⅜ Williams’[s] failure to return required documents.
“11. Though the foreclosure sale was rescheduled for August 21, 2008, Wells Fargo instead agreed to modify ,Williams’[s] loan. Williams returned the required documents on October 13,2008, and the loan modification became effective October 15,2008.
“12. Williams paid no money to Wells Fargo for this modification. After her loan was modified, she never made a payment.
“13. Following this default, the [ljoan was accelerated on March 20, 2009. A true and correct copy of the [njotice of [ajcceleration is attached hereto as Exhibit C. A foreclosure sale date of May 7, 2009 was set, and public notices ran in ■the • Tuscaloosa ' News on March 24, March 31, and April 7, 2009. True and correct copies of the public notices are -.attached hereto as Exhibit D.
- “14, Williams failed to cure the default, and the foreclosure sale was held .on May 7, 2009. Wells Fargo purchased the [pjroperty at the sale. A true and correct copy of the [fjoreelosure [djeed is attached hereto as Exhibit E.
• “15. Wells Fargo sent a demand for possession to Williams on May 7, 2009, pursuant to Alabama Code section 6-5-251 (1975). A true and correct copy of the [djemand for [pjossession is attached hereto as Exhibit F.”

Williams filed a motion to strike Roesch’s affidavit and the documents attached to it on the grounds (1) that the affidavit failed to establish that Roesch had personal knowledge of the facts recited in it and (2) that the documents attached to her affidavit were not properly authenticated by her testimony in the affidavit. In addition, Williams filed an affidavit in which she stated:

“I have personal knowledge of the matters set forth in this affidavit, and I am competent to testify about the matters set forth herein.
“I bought the property .... on March 29, 2005. At that time, I executed a promissory note with [First Magnusj. I also signed a mortgage with [MERS] as nominee for [First Magnus]. The mortgage was recorded in the probate records of Tuscaloosa County Alabama. The payment for my principal and interest on the note is $795.64. Wells Fargo was acting as the servicer of my loan. However, as far as I know, the ownership of the note and mortgage has never changed. Although I was notified that Wells Fargo would be servicing my loan, I was never notified that the note and mortgage had ever been assigned or transferred to Wells Fargo Bank.
“On or about September 1, 2006, my husband and I separated. As a result of the separation, I had a reduction in income and began having difficulty making my mortgage . payments. I began contacting the servicer of my mortgagee, Wells Fargo Bank, in November 2006 about making payment arrangements. I stayed in contact with Wells Fargo through May 7, 2009 when the foreclosure sale took place.
“I spoke to the mortgage company numerous times from November 2006 through May 7, 2009 regarding a work out plan through the[ir] loss mitigation program which is required by [the United States Department of Housing and Urban Development (‘HUD’)] in order to save my home from foreclosure. They told me they would work with me and to send in a hardship letter. I sent the letter to them in December 2006; however I never heard from them. I was told by them that the foreclosure would not go forward as long as they were working with me through the loss mitigation program. I also applied several 'more time[s] for a loan modification through the loss mitigation program. I sent in all the required information, but Wells Fargo never gave me the loan modification it had promised.- Because of these communications with Wells Fargo, I was confused about the foreclosure procedure. Further, I relied upon these communications and believed that Wells Fargo was working with me to help me keep my home. I never heard from them until the day before the foreclosure sale when they advised me that the loan modification was denied. I was told' by them that the foreclosure would not go forward as long as they were working with me through the loss mitigation program only to be told the day before that I was not receiving a loan modification. Because of these communications with Wells Fargo, I believed that they were not going to foreclose until I had received the promised modification. Furthermore, I requested other assistance from them available through the loss mitigation program, but was denied any assistance at all. I was never offered a repayment plan, a moratorium, forbearance, deed in lieu of foreclosure, or a partial claim. Those programs are available through the HUD mandated loss mitigation program, but I was not offered any assistance from the mortgage company available pursuant to those programs.
“My mortgage contract prohibits the mortgage company from foreclosing against me if they violate HUD rules and regulations. They did not follow HUD rules and regulations by failing to work with me through the loss mitigation program. Specifically, the lender did not provide me with a copy of the HUD publication PA 426-H, May 19, 1997, How to Avoid Foreclosure[,] [a]s required by 24 CFR 203.602. In addition, [Wells Fargo] did not use reasonable means to address my delinquency, failed to inform me of available loss mitigation options and the availability of housing counseling within the second month of delinquency, and failed to utilize loss mitigation to avoid foreclosing on my home. I never received any letters from [Wells Fargo] about options to prevent foreclosure. Furthermore, the mortgage company never made any arrangement with me for an in person meeting nor gave me any reason why they could not meet with me to discuss my option to avoid foreclosure because of my mortgage delinquency.
“Moreover, I never was provided any notice of intent to accelerate, any actual acceleration notice, or notice of sale which were required by my mortgage agreement. I was not given the opportunity to cure the alleged default nor could I obtain the information necessary to cure the alleged default or said foreclosure sale. [Wells Fargo] wrongfully foreclosed and attempted to purchase for itself my property on May 7, 2009, without giving me a proper acceleration notice of the default and opportunity to cure that default.
“I have [a Federal Housing Administration ‘FHA’)] mortgage. My FHA mortgage contract prohibits the mortgage company from foreclosing against me if they violate HUD rules and regulations. They did not follow HUD rules and regulations by failing to work with me through the loss mitigation program. Specifically, the lender did not provide me with a copy of the HUD publication PA 426-H, May 19, 1997, How to Avoid Foreclosure[,] [a]s required by 24 CFR 203.602. In addition, [Wells Fargo] did not use reasonable means to address my delinquency, failed to inform me of available loss mitigation options and the availability of housing counseling within the second month of delinquency, and failed to utilize loss mitigation to avoid foreclosing on my home. I never received any letters from [Wells Fargo] about options to prevent foreclosure. Furthermore, the mortgage company never made any arrangement with me for an in person meeting nor gave me any reason why they could not meet with me to discuss my option to avoid foreclosure because of my mortgage delinquency.
“Failure to set aside this foreclosure sale would render a harsh result on me and my two children due to my financial situation. I want to keep this property.”

In addition, Williams submitted a brief in opposition to Wells • Fargo’s summary-judgment motion.

Wells Fargo filed a motion to strike Williams’s affidavit on the grounds (1) that it contained inadmissible hearsay and (2) that it contained testimony that violated the Statute of Frauds. See § 8-9-2, Ala. Code 1975. Thereafter, the trial court granted Wells Fargo’s summary-judgment motion, which, as noted, addressed only Williams’s counterclaim, without ruling on either Williams’s motion to strike Roesch’s affidavit or Wells Fargo’s motion to strike Williams’s affidavit. Williams then appealed; however, this court dismissed the appeal because the order appealed from was neither a final judgment nor an order that was appropriate for certification as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. Williams v. Wells Fargo Bank, N.A. (No. 2120160, April 16, 2014), 187 So.3d 813 (Ala.Civ.App.2014) (table).

In May 2014, Wells Fargo moved for a summary judgment with respect to its ejectment claim against Williams. Wells Fargo supported this second summary-judgment motion with the same affidavit of Roesch that it had filed in support of its first summary-judgment motion. Williams again filed a motion to strike Roesch’s affidavit and the same affidavit she had filed in opposition to the first summary-judgment motion. Wells Fargo again filed a motion to strike Williams’s affidavit on the grounds (1) that it contained hearsay and (2) that it contained testimony that violated the Statute of Frauds. See § 8-9-2. Williams filed a brief in opposition to Wells Fargo’s summary-judgment motion and requested an opportunity to depose Roesch before the trial court heard the summary-judgment motion. The trial court granted Williams’s request; thereafter, Williams deposed Roesch and filed the entire transcript of Roesch’s deposition in opposition to Wells Fargo’s summary-judgment motion without moving to strike any of the testimony in her deposition.

Following a hearing, the trial court granted Wells Fargo’s summary-judgment motion without ruling on Williams’s motion to strike Roesch’s affidavit or Wells Fargo’s motion to strike Williams’s affidavit. Williams then filed a postjudgment motion in which she requested an opportunity to present oral argument; however, the trial court denied Williams’s motion without holding a hearing. Williams then appealed, and the supreme court transferred her appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Standard of Review

“[An appellate court’s] review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). [An appellate court] applies] the same standard of review as the trial court applied. Specifically, [the appellate court] must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala.2004). In making such a determination, [the appellate court] must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce ‘substantial evidence’ as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); Ala. Code 1975, § 12-21-12. ‘[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assur. Co. of Fla., 547 So.2d 870, 871 (Ala.1989).”

Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004).

Analysis

On appeal, Williams raises nine issues, which we will address in the following order: (1) whether the trial court erred in failing to strike Roesch’s affidavit; (2) whether Wells Fargo had the right to exercise the power of sale in the mortgage; (3) whether Williams established a genuine issue of material fact regarding whether Wells Fargo failed to give Williams notice of default, notice of acceleration, and notice of the foreclosure sale; (4) whether Wells Fargo’s alleged failure to comply with federal loss-mitigation regulations constituted a defense to Wells Fargo’s ejectment claim; (5) whether Williams stated a claim of breach of contract based on Wells Fargo’s alleged failure to comply with federal loss-mitigation regulations; (6) whether Wells Fargo’s alleged misrepresentation that it would not foreclose until Williams had been notified of the results of her loss-mitigation application constituted a defense to Wells Fargo’s ejectment claim; (7) whether Williams had an estop-pel defense to Wells Fargo’s ejectment claim based on Wells Fargo’s alleged misrepresentation that it would not foreclose until Williams had been notified of the results of her loss-mitigation application; (8) whether the omission of the lot number of the property from its legal description in the mortgage rendered the foreclosure void; and (9) whether the trial court committed reversible error by denying Williams’s postjudgment motion without holding a hearing regarding that motion.

I. Whether the Trial Comt Erred in Failing to Strike Roesch’s Affidavit

As noted above, Williams filed Roesch’s deposition testimony in its entirety without moving to strike any of the testimony contained therein, which authorized the trial court to consider that testimony regardless of whether it would have been proper to strike it if a motion to strike had been filed. See Ex parte Secretary of Veterans Affairs, 92 So.3d 771, 777 (AIa.2012) (holding that a party must move to strike objectionable testimony in order to preclude its consideration by the trial court in ruling on a summary-judgment motion); and Ex parte Elba Gen. Hosp. & Nursing Home, Inc., 828 So.2d 308, 312 (Ala.2001). In Ex paite Elba General Hospital, our supreme court stated:

“On the question whether a trial court should consider a defective affidavit introduced in support of a motion for summary judgment and not objected to by the opposing party, we have consistently held that a failure to object constitutes a waiver of the right to object to the affidavit and that in the absence of an objection the trial court may properly consider such an affidavit, even if an objection alleging the particular defect would clearly have been proper.”

828 So.2d at 312 (emphasis added). In her deposition testimony, Roesch reiterated all the testimony contained in her affidavit. Because Williams waived any objection to Roesch’s deposition testimony by failing to move to strike any of it, she waived any objection she might have had to that testimony. See Ex parte Secretary of Veterans Affairs and Ex parte Elba General Hospital. Moreover, by allowing the trial court to consider Roesch’s deposition testimony, which reiterated all the testimony in her affidavit, Williams rendered harmless any error the trial court may have committed in failing to strike Roesch’s affidavit. See Rule 45, Ala. R.App. P. (providing that a judgment may not be reversed on the ground of the improper admission of evidence unless it injuriously affected the substantial rights of the party who opposed its admission). Accordingly, the trial court did not commit reversible error in failing to strike Roesch’s affidavit.

II. Whether Wells Fargo Had the Right to Exercise the Power of Sale

In her deposition, Roesch testified that Wells Fargo’s business records established that it acquired possession of the note on April 21, 2005, and that, when Wells Fargo acquired possession of the note on that date, it already bore First Magnus’s indorsement making the note payable to the order of Wells Fargo.

Under Alabama law, the note is a negotiable instrument, which makes it subject to Alabama’s version of the Uniform Commercial Code. See § 7-3-104, Ala.Code 1975; and Thomas v. Wells Fargo Bank, N.A., 116 So.3d 226, 233 (Ala.Civ.App.2012). In pertinent part, § 7-1-201(b)(21)(A), Ala.Code 1976, provides that the term “holder” means “[t]he person in possession of a negotiable instrument that is payable ... to an identified person that is the person in possession.,.. ” Thus, because Wells Fargo acquired possession of the note, which was made payable to Wells Fargo by First Magnus’s indorsement, on April 21, 2005, it became the holder of the note as of that date. Section 7-3-301, Ala.Code 1975, provides that a holder of a negotiable instrument is entitled to enforce it. Moreover, § 35-10-12, Ala.Code 1975, provides that any person entitled to the money secured by a mortgage is entitled to exercise the power of sale in the mortgage. See Perry v. Federal Nat’l Mortg. Ass’n, 100 So.3d 1090, 1095 (Ala.Civ.App.2012). Consequently, because Wells Fargo became the holder of the note as of April 21, 2005, and was still the holder of the note on the date of the foreclosure sale, it had the right to exercise the power of sale when the foreclosure sale was held.

III. Whether Williams Established a Genuine Issue of Material Fact Regarding Whether Wells Fargo Failed to Give Williams Notice of Default, Notice of Acceleration, and Notice of the Foreclosure Sale

In pertinent part, § 35-10-13, Ala. Code 1975, provides that “[njotice of all [foreclosure sales] shall be given by publication once a week for three successive weeks in a newspaper published in the county ... in which such land is located.” It is undisputed that Wells Fargo complied with this Code section. Neither the. Alabama Code nor the provisions of the mortgage at issue in this appeal required Wells Fargo to give Williams notice of default or of acceleration of the maturity of the debt, and Williams has not cited any legal authority standing for the proposition that a mortgagee is required to give a mortgagor notice of default and notice of acceleration in the absence of a provision in the mortgage requiring such notice. Therefore, any evidence tending to prove that Wells Fargo failed to give Williams notice of default and notice of acceleration would not have created a genuine issue of material fact precluding the granting of Wells Fargo’s summary-judgment motion. See Gilmore v. Shell Oil Co., 613 So.2d 1272, 1274 (Ala.1993) (“A ‘genuine issue of material fact’ is a disputed factual issue that is ‘outcome determinative.’ ‘A fact is outcome determinative if the resolution of that fact [before the trial court] will establish or eliminate a claim or defense....’” (quoting John J. Coleman III, Summary Judgment in Alabama: The Nuances of Practice Under. Rule 56, 20 Cumb. L.Rev. 1,5(1989))).

In addition to the statutory requirement that Wells Fargo give notice of the foreclosure sale by publication once a week for three successive weeks in a newspaper published in Tuscaloosa County, the mortgage required Wells Fargo to give Williams a copy of the notice of the foreclosure sale by mailing it to her at the address of the property. Although Williams testified in the affidavit she filed in opposition to Wells Fargo’s summary-judgment motions that she had not received notice of the foreclosure, that testimony directly contradicted her testimony in the affidavit she had filed in support of her motion to set aside the default judgment in which she stated that “[wjhen [she had begun} receiving notices for the foreclosure [she had] contacted FML. Law Center with the .understanding..that they were attorneys representing .[her] -interests in [her] home.” (Emphasis added.) The Alabama appellate courts have;held that a party may not avoid- a summary judgment by directly contradicting, prior sworn testimony. See, e.g., Hines v. Trinity Contractors, Inc., 154 So.3d 1014, 1021-23 (Ala.Civ.App.2014). Williams’s testimony in her affidavit in support of her motion to set aside the default judgment established that she had received notice of the foreclosure sale in accordance, with,the notice provision of the mortgage. Therefore, Williams failed to. establish a genuine issue of material fact regarding whether she was given notice of-.the foreclosure sale.

IV. Whether Wells Fargo’s .Alleged Failure to Comply with federal Loss-Mitigation Regulations Constituted, a Defense to Wells Fargo’s Ejectment Claim

• This court has specifically held that a mortgagee’s failure-to comply with federal loss-mitigation regulations cannot be. asserted as a defense in an ejectment action. In Campbell v. Bank of America, N.A., 141 So.3d 492, 494-96 (Ala.Civ.App.2012), this court stated:

“The Campbells argued: in the circuit court and they now maintain on appeal .-.that Bank .of America’s alleged noncompliance with [United States Department of Housing and Urban Development] loss-mitigation alternatives, to foreclosure constitutes a defense to a,foreclosure action. An ejectment action, following a nonjudicial foreclosure, however, is not a ‘foreclosure action,’ and. a defense in such an action asserting errors in the foreclosure .process is a collateral attack on a foreclosure. See Dewberry v. Bank of Standing Rock, 227 Ala. 484, 493, 150 So. 463, 470 (1933) (characterizing the action in Jones v. Hagler, 95 Ala. 529, 10 So. 345 (1891), in which the plaintiff sought possession of certain property he had purchased from a trustee, who had sold the property pursuant to a power of sale in a deed of trust, and in which the defendant had asserted irregularities in the sale, as ‘a statutory action in the nature of ejectment—an indirect or collateral attack upon the foreclosure of real and personal property sold by a trustee, under the power [of sale in a deed of trust]’ (some emphasis in original; some emphasis added)). Accord Pinkert v. Lamb, 215 Ark. 879, 883, 224 S.W.2d 15, 17 (1949) (stating that an ejectment action is a ‘collateral attack by appellees on the ... foreclosure decree and sale ..., and the burden [is] on them to prove such defects therein as would render the sale and decree void’); Dime Sav. Bank, FSB v. Greene, 2002 Pa.Super. 392, 813 A.2d 893, 895 (2002) (stating that ‘[a]n ejectment action is a proceeding collateral to that under which the land was sold’ and that, Vhere it is claimed that [an] underlying default judgment [in a judicial-foreclosure action] is merely voidable, that claim will not be entertained because such a judgment can not be reached collaterally’).
“In a direct attack on a foreclosure— that is, an action seeking declaratory and injunctive relief to halt the foreclosure sale before it occurs[,] see, e.g., Ferguson v. Commercial Bank, 578 So.2d 1234 (Ala.1991); Bank of Red Bay v. King, 482 So.2d 274 (Ala.1985); and Woods v. SunTrust Bank, 81 So.3d 357 (Ala.Civ.App.2011), or an action to set aside the sale after it has occurred, see, e.g., Beal Bank, SSB v. Schilleci, 896 So.2d 395 (Ala.2004); Kelly v. Carmichael, 217 Ala. 534, 536, 117 So. 67, 69 (1928); and Browning v. Palmer, 4 So.3d 524 (Ala.Civ.App.2008)—any circumstance in the foreclosure process that would render the foreclosure sale void or voidable may be asserted. In a proceeding involving a collateral attack on a foreclosure, however, only those circumstances that would render the foreclosure sale void may be raised as an affirmative defense.
“ ‘[T]he true distinction between void and voidable acts, orders, and judgments, is, that the former can always be assailed in any proceeding, and the latter, only in a direct proceeding.’ Alexander v. Nelson, 42 Ala. 462, 469 (1868). See, e.g., Carlton v. Owens, 443 So.2d 1227, 1231 (Ala.1983) (stating that ‘[t]he only remedy available to a defendant subject to a voidable judgment is a direct appeal from that judgment; a collateral attack is not allowed’); City of Dothan v. Dale Cnty. Comm’n, 295 Ala. 131, 324 So.2d 772 (1975) (holding that, because city’s annexation of county land was, at most, voidable, opponents could not attack the annexation in a collateral proceeding); 23 Am.Jur.2d Deeds § 162 (2002) (stating that ‘[a] voidable deed must be attacked, if at all, directly, but a deed that is void may be collaterally attacked by anyone whose interest is adversely affected by it’ (footnote omitted)).
“... Because an ejectment action following a nonjudicial foreclosure is not a judicial-foreclosure action, or an action for injunctive relief to forestall a foreclosure, or an action to set aside a foreclosure sale, the Campbells may not assert Bank of America’s alleged failure to comply with loss-mitigation procedures as a defense in an ejectment proceeding.”

(Last emphasis added.) See also Walker v. North American Sav. Bank, 142 So.3d 590, 598 (Ala.Civ.App.2013) (“[T]his court has determined that any alleged failure to comply with loss-mitigation procedures does not constitute a valid defense to an ejectment action following a nonjudicial foreclosure.”); Perry v. Federal Natl Mortg. Ass’n, 100 So.3d at 1101 (“‘[T]he failure of a foreclosing entity to comply with [United States Department of Housing and Urban Development] or [United States Department of Veterans Affairs] loss-mitigation requirements may not be raised as a defense to an ejectment action following a nonjudicial foreclosure.’ ” (quoting Coleman v. BAC Servicing, 104 So.3d 195, 206 (Ala.Civ.App.2012))). Thus, because any alleged failure of Wells Fargo to comply with federal loss-mitigation regulations would merely render the foreclosure voidable rather than void, Williams was precluded from asserting that alleged failure as a defense to Wells Fargo’s ejectment claim. Id.

V. Whether Williams Stated a Claim of Breach of Contract Based on Wells Fargo’s Alleged Failure to Comply with Federal Loss-Mitigation Regulations

Williams did not plead a breach-of-contract claim based on Wells Fargo’s alleged failure to comply with federal loss-mitigation regulations; the only breach-of-contract claim she pleaded was based on an allegation that Wells Fargo had breached a loan-modification agreement. Pleadings cannot be amended pursuant to Rule 15(b), Ala. R. Civ. P., based on arguments made in connection with a summary-judgment proceeding because a summary-judgment proceeding does not constitute a trial on the merits. See Rector v. Better Houses, Inc., 820 So.2d 75, 79 (Ala.2001). In Rector, our supreme court stated:

“Rule 15(b), Ala. R. Civ. P., states, in pertinent part:
“ ‘When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.... If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice the party in maintaining the party’s action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.’
“(Emphasis added.) The summary-judgment context is different from the situation where an unpleaded [claim] has been tried on the merits without objection, because, at the summary-judgment stage of litigation, there has been no trial before a fact-finder. A summary-judgment motion simply tests the merits of a case. See Champ Lyons, Jr., Alabama Rules of Civil Procedure Annotated, § 56.2 (3d ed.1996). If a court finds those merits lacking, then it properly adjudicates it. While such an adjudication under this scenario is an adjudication on the merits, the adjudication is not the product of a trial on the merits. Thus, where there is no trial, Rule 15(b) cannot apply. See Blue Cross & Blue Shield of Alabama v. Weitz, 913 F.2d 1544, 1549 (11th Cir.1990) (stating, in dictum, that Rule 15(b), Fed.R.Civ.P., the relevant portion of which is identical to Alabama’s Rule 15(b), is inapplicable at the summary-judgment stage because that stage does not involve a trial).”

820 So.2d at 79. Accordingly, Williams failed to state a breach-of-contract claim premised upon an alleged breach of the mortgage provisions requiring Wells Fargo to mitigate Williams’s loss because she did not plead such a claim.

VI. "Whether Wells Fargo’s Alleged Misrepresentation That It Would Not Foreclose Until Williams Had Been Notified of the Results of Her Loss-Mitigation Application Constituted a Defense to Wells Fargo’s Ejectment Claim

; In pertinent part, Alabama’s Statute of Frauds, § 8-9-2, Ala.Code 1975, provides:

“In the following • cases, every agreement is: void unless such agreement or some note or memorandum thereof expressing the consideration is in writing and • subscribed by . the party to be charged therewith or some other person by him thereunto lawfully authorized in writing:
: ,6i ■ '
■' “(7) Every agreement or commitment to lend money, delay or forbear repayment thereof or to modify the provisions of such an agreement or commitment except for consumer loans with a principal amount financed less than $25,000.”

(Emphasis added.).

Wells Fargo moved to strike Williams’s affidavit on the ground that it contained testimony that violated the Statute of Frauds. See § 8-9-2. Insofar as Williams testified in her affidavit regarding alleged- oral misrepresentations by Wells Fargo to the effect that Wells Fargo would not foreclose until'she had been notified of the results of her loss-mitigation application, her affidavit violated the Statute. of Frauds and, thus, that testimony was due to be stricken. See Coleman, 104 So.3d at 207. In Coleman, the mortgagee had-moved to strike testimony in the ^mortgagor’s affidavit in opposition to the. mortgagee?s summary-judgment motion regarding an alleged misrepresentation made1 by the mortgagee that the foreclosure would not go forward as long as the mortgagee was working with her through the loss-mitigation program. The Jefferson Circuit Court had granted the mortgagee’s summary-judgment motion without ruling on the mortgagee’s motion to strike. We stated:

“ ‘While the trial court did not rule on [BAC’s] motion to strike [Coleman’s] affidavit, [BAC] was entitled to an order striking [Coleman’s] ... statement.’ Kingvision Pay-Per-View, Ltd. v. Ayers, 886 So.2d 45, 57 (Ala.2003). See also Haygood v. Wesfam Rests., Inc., 675 So.2d 1312, 1314 (Ala.Civ.App.1996), overruled on other grounds, Rothenberger v. Cast Prods., Inc., 716 So.2d 1220, 1224 (Ala.Civ.App.1997) (stating, that ‘[t]he motion to strike was not ruled upon by the trial court; however, because the deficiencies of the affidavit were brought to that court’s attention, they are properly subject to our review’).”

104 So.3d at 207. Therefore, in the case now before us,, because Wells Fargo moved to strike Williams’s affidavit on the ground, among others, that it contained testimony that violated the Statute of Frauds and because that motion was due to be granted insofar as Williams testified that Wells Fargo had represented that it would not foreclose until Williams had been notified of the results of her loss-mitigation application, we will consider that portion of Williams’s affidavit stricken for purposes of our review of the trial court’s judgment. Id, With that testimony stricken, the record does not contain any evidence to support Williams’s argument that she has a misrepresentation defense to Wells Fargo’s ejectment action.

VII. Whether Williams Had an Estop-pel Defense to Wells Fargo’s Ejectment Claim

Williams argues that she had an estop-pel defense to Wells Fargo’s ejectment claim based on the same alleged misrepresentation upon which she bases her argument that she had a misrepresentation defense. However, because, as discussed above, we consider her testimony regarding that alleged misrepresentation to be stricken for purposes of our review of the trial court’s judgment, the record does not contain any evidence to support Williams’s argument that she had an estoppel defense to Wells Fargo’s ejectment claim. Id.

VIII. Whether the Omission of the Lot Number of the Property from Its Legal Description in the Mortgage Rendered the Foreclosure Void

Williams argues that the foreclosure was void because of an error in the legal description of the property in the mortgage. The legal description of the property in the mortgage was:

“Lot South Pointe, Phase 1, a map or plat of which is recorded at Plat Book 2003 at Page 116, in the Probate Office of Tuscaloosa County, Alabama, reference to which is hereby made in aid of and as a part of this description. Source of title: deed executed October 23, 2003 from Northport Builders Group, L.L.C. to J.T.L.L.C., as recorded in Deed Book 2003 at page 20138 in said probate office.”

Aside from the omission of the number “10” following the word “Lot,” the legal description is correct.

In Frazier v. Malone, 387 So.2d 145 (Ala.1980), Frazier had mortgaged his land to Malone to secure the payment of a note payable to Malone. When Frazier subsequently defaulted on the note, Malone held a foreclosure sale and bought Frazier’s land at the sale. Thereafter, Malone brought an ejectment action against Frazier and obtained a default judgment against him in that action. Frazier then brought an action seeking to have the default judgment in the ejectment action set aside on the ground, among others, that the legal description of the land in the mortgage was erroneous and, therefore, the mortgage, the foreclosure, and the ejectment were void. After the Jefferson Circuit Court entered a judgment in favor of Malone, Frazier appealed. Affirming the Jefferson Circuit Court’s judgment, our supreme court stated:

“Because of an alleged discrepancy between the description of the property in the mortgage and the description of it in the foreclosure deed, [Frazier] contends the mortgage and therefore the foreclosure and ejectment are invalid. According to Frazier the property he actually owned is described as follows:
“ ‘Lot 20, Block 46, according to the survey of East Birmingham, as recorded in Map Book 1, Page 7, in the Office of the Judge of Probate of Jefferson County, Alabama.’
“In the mortgage to Malone, and in the foreclosure deed, the real estate is described as follows:
“ ‘Lot 20, Block 46, according to the First Addition to East Birmingham, as recorded in the Office of the Judge of Probate of Jefferson County, Alabama.’
“In addition to this latter description, the complaint in the ejectment action stated the street address of Frazier’s property: 1101 Coosa Street, Birmingham, Alabama,
“In Mid-State Homes, Inc. v. Brown, 294 Ala. 242, 314 So.2d 83[6] (1975), this court articulated its reluctance to declare written instruments void because of misdescription where they can be made certain by reference to intention of the parties and surrounding circumstances.
“The evidence before the [Jefferson Circuit Court] was clearly sufficient to support the conclusion that the property description in the mortgage referred to Frazier’s property and was not invalid. Frazier testified 'that the description in the mortgage and note was of his house and that negotiations concerning the transaction involved his house. Under the circumstances the description is sufficient both in the mortgage and in the ejectment action. See Myers v. Ellison, 249 Ala. [3]67, 31 So.2d 353 (1947); Karter v. East, 220 Ala. 511, 125 So. 655 (1929).”

387 So.2d at 148-49.

In the action now before us, Williams never disputed that the property subject to the mortgage was the property with the street address of 12340 South Pointe Drive, Moundville. In addition to describing the land subject to the mortgage with a legal description, the mortgage described it with its street address of 12340 South Pointe Drive, Moundville. Moreover, the legal description in the mortgage provided the recording data of the deed from which Williams derived her title and from which the correct legal title could be ascertained. Accordingly, we conclude that the description of the property in the mortgage was sufficient and that the omission of the lot number from the legal description of the property in the mortgage did not render the mortgage or the foreclosure void. See Frazier.

IX. Whether the Trial Court Committed Reversible Error by Denying Williams’s Postjudgment Motion Without Holding a Hearing Regarding That Motion

Rule 59(g), Ala. R. Civ. P., provides that a posttrial motion “shall not be ruled upon until the parties have had opportunity to be heard thereon.” Although it is error for a trial court to deny a postjudgment motion without holding a hearing if the movant has requested a hearing, it is not necessarily reversible error. See Greene v. Thompson, 554 So.2d 376, 380-81 (Ala.1989).

“Harmless error occurs, within the context of a Rule 59(g) motion, where there is either no probable merit in the grounds asserted in the motion, or where the appellate court resolves the issues presented therein, as a matter of law, adversely to the movant, by application of the same objective standard of review as that applied in the trial court.”

Greene, 554 So.2d at 381. In this opinion, we have resolved all the issues presented in Williams’s postjudgment motion adversely to her as a matter of law. Therefore, the trial court’s error in denying Williams’s postjudgment motion without a hearing was harmless error. See Greene.

For the reasons discussed above, we affirm the judgment of the trial court.

AFFIRMED.

MOORE, J., concurs.

THOMPSON, P.J., and THOMAS, J., concur in the result, without writings.

DONALDSON, J., recuses himself.


author: THOMAS, Judge.

text:
    Edward J. ADLER III v. BANK OF NEW YORK MELLON.
    2150286.
    Court of Civil Appeals of Alabama.
    July 22, 2016.
    Rehearing Denied Sept. 9, 2016.

      L. Daniel Mims and Theresa N. Williamson of The Mims Firm, PC, Mobile, for appellant.
    Gregory C. Cook of Balch & Bingham LLP, Birmingham; and G. Lane Knight and Jacob C. Harper of Balch & Bingham LLP, Montgomery, for appellee.
   THOMAS, Judge.

Edward J. Adler III appeals, challenging the orders of the Baldwin Circuit Court (“the circuit court”) disposing of his claims against the Bank of New York Mellon, formerly known as the Bank of New York, as trustee for CHL Mortgage Pass-Through Trust 2003-11, Mortgage Pass-Through Certificates, Series 2003-11 (“BNYM2”), in favor of BNYM2 and disposing of BNYM2’s claims against Adler in favor of BNYM2. The evidentiary materials that the parties presented to the circuit court reveal the following facts.

On January 31, 2003, Adler and his wife executed a note, secured by a mortgage, for the purchase of real property (“the property”) located in a subdivision known as TimberCreek. The mortgage was executed in favor of Mortgage Electronic Registration Systems, Inc., acting as nominee for “First Alliance.” The note and mortgage were subsequently transferred and assigned to the Bank of New York Mellon, formerly known as the Bank of New York, as trustee for the Certificate Holders CWMBS, Inc., Asset-Backed Certificates, Series 2003-11 (“BNYM1”). BNYM1 subsequently transferred and assigned the note and mortgage to BNYM2; however, the documents evidencing that transaction were lost. An “affidavit of lost assignment” that was recorded in the Baldwin Probate Court (“the probate court”) on April 23, 2012, indicates that “the original assignment [from BNYM1 to BNYM2] was lost or misplaced before being recorded.”

When Adler and his wife divorced in 2009, Adler was made responsible for all the debts of the marriage, which included the note secured by the mortgage. By 2012, Adler was in default on the note. BNYM2 thereafter initiated foreclosure proceedings (“the 2012 foreclosure”), and BNYM2 purchased the property at a foreclosure sale (“the 2012 foreclosure sale”) on June 5, 2012. A foreclosure deed (“the 2012 foreclosure deed”) was recorded in the probate court on June 19, 2012. Adler, however, continued to occupy the property. In August 2012, BNYM2 filed a complaint in the circuit court, seeking to eject Adler from the property, in case .no. CV-12-901041 (“the 2012 ejectment action”). On October 9, 2012, the TimberCreek Property Owners Association, Inc. (“the POA”), filed a statement of lien in the probate court, in which it asserted that BNYM2— the record owner of the property—was liable for $990 plus interest to the POA for certain overdue fees, assessments, and charges.

On October 10, 2012, Adler filed a motion seeking a dismissal of or, alternatively, a summary judgment in the 2012 ejectment action, Adler’s sole argument—that the circuit court should dispose of the action because BNYM2 lacked standing to bring the action—rested on his contention that the affidavit of lost assignment had failed to demonstrate that BNYM2 had received a valid assignment of the note and mortgage. Adler relied on the reasoning of Cadle Co. v. Shabani 950 So.2d 277 (Ala.2006), and our reasoning in reliance on Cadle in Sturdivant v. BAC Home Loans Servicing, LP, 159 So.3d 15, 23-24 (Ala.Civ.App.2011)(concluding that BAC did not have standing to bring an ejectment action “because the record demonstrates that BAC did not have legal title to the property at the time it initiated its foreclosure action!; therefore], it cannot claim legal title to the property through the ... foreclosure sale and the resulting deed”), rev’d by Ex parte BAC Home Loans Servicing, LP, 159 So.3d 31 (Ala.2013), and by Ex parte GMAC Mortgage, LLC, 176 So.3d 845 (Ala.2013). See also Ex parte Rhodes, 144 So.3d 316, 318 (Ala.2013) (“In our recent decision of Ex parte BAC Home Loans Servicing, this Court expressly rejected the reasoning in Byrd [v. MorEquity, Inc., 94 So.3d 378 (Ala.Civ.App.2012)], Sturdivant, and Cadle.”). However, at the time that Adler filed his motion, both Sturdivmt and Ca-dle supported his argument/ Although BNYM2 argued that it was unlike the plaintiffs in Sturdivant and Cadle,, the circuit court entered a summary, judgment in favor of Adler in the 2012 ejectment action on January 16, 2013. Accordingly, Adler continued to occupy the property. The summary judgment in the 2012 ejectment action neither revealed the circuit court’s reasoning for entering the judgment nor declared that the 2012 foreclosure deed was void. The judgment reads, in its entirety: “Motion for Summary Judgment pursuant to Rule 56[, Alai R. Civ. P.,] filed by [Adler] is hereby granted.” BNYM2 did not file a notice of appeal in the 2012 ejectment action.

The events giving rise to this appeal began on March 25, 2014, when BNYM2 filed in the circuit court a complaint against Adler that was assigned case no. CV-14-900367 (“the 2014 action”). BNYM2 requested an order specifically setting aside the 2012 foreclosure deed and “reinstating] the mortgage.” Adler filed a motion to dismiss of for a more definite statement, in which he supplied certain additional facts. Adler’s motion reads, in pertinent part:

“On February 22, 2013, [the POA] conducted a foreclosure sale of the real property made the basis of the twtf actions filed by [BNYM2], and at that foreclosure sale, [Adler] was the highest and best bidder and acquired title to the property. A deed to the property, executed on February 28, 2013, was recorded on March 25, 2013, in the office of the Judge of Probate of Baldwin County, Alabama, at instrument ' nuinber 1389028. A copy of that deed is attached hereto and labeled as Exhibit T.’ The statutory right of redemption has now expired as it relates to the foreclosure of the real property by [the POAj’s foreclosure.”

Adler argued that BNYM2 had failed to present grounds upon which the 2012 foreclosure deed should be set aside or upon which the mortgage should be “reinstated” and that the 2014 action was barred by the doctrine of equitable estoppel. The circuit court denied Adler’s motion to dismiss, and, on January 21, 2015, Adler answered and counterclaimed, asserting that, because BNYM2 had failed to “ensure” that it had standing to bring the 2012 ejectment action, BNYM2 was now liable to Adler for damages for wrongful foreclosure, slander of title, negligence, and wantonness regarding the 2012 foreclosure and the 2012 ejectment action.

On March 30, 2015, BNYM2 filed a reply to Alder’s counterclaim, but it failed to assert any affirmative defenses in its reply. On May 22, 2015, BNYM2 filed a Rule 12(c), Ala. R. Civ. P., motion for a judgment on the pleadings, arguing that Adler’s counterclaim had referenced the 2012 ejectment action and that Adler’s claims were barred by the applicable statute of limitations or were barred as a matter of law because Alder’s claims were compulsory counterclaims that had not been raised in the 2012 ejectment action. That same day, BNYM2 also filed a motion for a summary judgment, seeking a judgment in its favor on its request for declaratory relief. See supra note 1. Adler filed responses. Specifically, Adler responded to BNYM2’s Rule 12(c) motion, arguing that BNYM2 had waived the statute-of-limitations defense, see Rule 8(c), Ala. R. Civ. P. (listing affirmative defenses), because it did not raise it as an affirmative defense in its reply to his counterclaim and instead did so for the first time in the Rule 12(c) motion.

The circuit court held a hearing on July 21, 2015, and it entered two orders on August 4, 2015: It entered a summary judgment in favor of BNYM2, declaring that the 2012 foreclosure deed was void and that the note secured by the mortgage had not been satisfied, and it entered a judgment on the pleadings in favor of BNYM2 on Adler’s claims.

On August 28, 2015, Adler filed a postjudgment motion, which the circuit court denied on October 20, 2015. On November 30, 2015, Adler filed a timely notice of appeal to the Alabama Supreme Court. The appeal was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975. On appeal, Adler argues that the circuit court erred by denying his postjudgment motion. The grant or denial of a postjudgment motion rests within the sound discretion of the trial court. Flagstar Enters., Inc. v. Foster, 779 So.2d 1220, 1221 (Ala.2000); Dare Prods., Inc. v. Alabama, 574 So.2d 847, 850 (Ala.Civ.App.1990). In his post-judgment motion, Adler had requested reconsideration of the order entering a summary judgment in favor of BNYM2 on its claims and of the order entering a judgment on the pleadings in favor of BNYM2 on Adler’s claims based upon, he claimed, certain newly discovered evidence that would demonstrate that BNYM2 was not a real pai’ty in interest and that BNYM2 lacked standing to maintain the 2014 action.

We first address whether BNYM2 lacked standing to sue Adler because a question of standing implicates subject-matter jurisdiction. Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 954 (Ala.2004). Adler contends that BNYM2 “lost its standing” and that the circuit court, therefore, lacked subject-matter jurisdiction over the 2014 action based upon his assertion that, after the orders had been entered, he learned that BNYM2 had transferred ownership of the note and mortgage to NRZ Pass-Though Trust V (“NRZ”) on June 25, 2015, which was before the orders were entered on August 4, 2015.

Adler has not raised a standing question but, instead, has raised a real-party-in-interest question. “‘[T]he question whether a party has standing to sue is distinct from whether [the party] is the real party in interest.’ ” Ex parte Sterilite Corp. of Alabama, 837 So.2d 815, 818 (Ala.2002)(quoting Battle v. Alpha Chem. & Paper Co., 770 So.2d 626, 634 (Ala.Civ.App.2000)). “ ‘[T]he real party in interest principle is a means to identify the [entity that] possesses the right sought to be enforced.’” Dennis v. Magic City Dodge, Inc., 524 So.2d 616, 618 (Ala.1988)(quoting 6 C. Wright & A. Miller, Federal Practice & Procedure § 1542 (1971)). Based on the evidence before the circuit court when it entered the orders, BNYM2 was the real party in interest because it was “the party ‘... who possessed] the substantive right being asserted under the applicable law....’” Frazer v. Alabama State Policemen’s Ass’n, Inc., 346 So.2d 959, 961 (Ala.1977) (quoting Wright & Miller, Federal Practice & Procedure: Civil § 1541 at 635).

Rule 25(c), Ala. R. Civ. P., provides, in pertinent part: “In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party.” Assuming that there was an assignment of the mortgage from BNYM2 to NRZ, Rule 25(c) provides that BNYM2 could properly continue to prosecute the 2014 action unless, “upon motion,” the circuit court ordered that NRZ be substituted or joined as a plaintiff in the 2014 action. If such a motion had been filed, the circuit court certainly could have substituted NRZ as the plaintiff or added NRZ as an additional plaintiff; however, it also could have properly refused to do either. Regardless, no such motion was ever filed; consequently, no such substitution or joinder of parties was ordered, and, therefore, BNYM2 had the right to continue to prosecute the action. See American Credit Co. of Alabama v. Bradford, 414 So.2d 119, 121 (Ala.Civ.App.1982)(citing 7A Wright and Miller, Federal Practice & Procedure § 1958, at p. 663).

“ ‘The most significant feature of Rule 25(c) is that it does not require that anything be done after an interest has been transferred. The action may be continued by or against the original party, and the judgment will be binding on his successor in interest even though he is not named. An order of joinder is merely a discretionary determination by the trial court that the transferee’s presence would facilitate the conduct of the litigation.’ ”

Bradford, 414 So.2d at 121 (quoting 7A Wright and Miller, Federal Practice and Procedure, § 1958, at p. 664). Adler’s argument that the circuit court lacked subject-matter jurisdiction is, therefore, mer-itless.

Next, Adler argues that the circuit court erred by failing to grant his post-judgment motion, in which he requested that the circuit court vacate .the order entering ' a summary judgment in favor of BNYM2 on its claims.

“‘‘The standard of review applicable to a summary judgment is the same as the standard for granting the motion.’ McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957, 958 (Ala.1992).
“‘A summary judgment is proper when there. is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and,that,it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party must present “substantial evidence” creating a genuine issue of material fact—“evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” Ala.Code 1975, § 12-21-12; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).’
“Capital Alliance Ins. Co. v. Thorough-Clean, Inc., 639 So.2d 1349, 1350 (Ala.1994). Questions of law are reviewed de .noyo. Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala.2004).”

Tiller v. YW Hous. Partners, Ltd., 5 So.3d 623, 628 (Ala.Civ.App.2008). Adler’s argument is premised on the conclusion that the 2012 foreclosure deed is valid because it was never specifically declared void. In other words, Adler seeks to have this court hold that, although the 2012 foreclosure sale was void based, on the circuit court’s summary judgment in the 2012 action, the 2012 foreclosure deed remains valid and the mortgage should not be “reinstated.” However, based on the circuit court’s ruling hr the 2012 ejectment action and under the law applicable at the time of the 2012 ejectment action, BNYM2 did not acquire “standing” to foreclose on the property; therefore, the summary judgment entered in favor of Adler in the 2012 ejectment action rendered the 2012 foreclosure sale invalid, and, consequently, the 2012 foreclosure deed never validly existed.

In Nelson v. Federal National Mortgage Association, 97 So.3d 770, 780 (Ala.Civ.App.2012), we explained that

“[t]he complete absence of any evidence indicating that [Flagstar Bank, FSB (‘Flagstar’) ], was the owner of the debt, i.e., the holder of the note, before June 5, 2009, when [Mortgage Electronic Registration Systems, Inc. (‘MERS’) ], as nominee for Flagstar, invoked the power of sale in the mortgage means that MERS did not convey legal title to itself by virtue of the foreclosure deed because MERS had no authority to initiate the foreclosure proceedings. Consequently, the special warranty deed that [Federal National Mortgage Association] received from MERS two days after the foreclosure sale, which depended for its efficacy upon the validity of the MERS foreclosure deed, see 11 Thompson on Beal Property § 94.07(b)(2)(I) at 390 (David A. Thomas 2d ed.2002), was also void.”

(Emphasis added.)

In the 2012 ejectment action, the circuit court determined that, based upon the law as it existed in 2012, BNYM2 lacked the authority to initiate the 2012 foreclosure sale because the evidence presented in the 2012 ejectment action failed to demonstrate that BNYM2 was the owner of the note secured by the mortgage on the day of the 2012 foreclosure sale. See Sturdivant, 159 So.3d at 15-18. Thus, the circuit court held, based on the law as it existed at that time, the 2012 foreclosure sale was void. The 2012 foreclosure deed, which depended upon the efficacy of the assignment from BNYM1 to BNYM2, was, therefore, also void. Therefore, we conclude that the circuit court did not err in the 2014 action by determining that Adler had failed to demonstrate the existence of any genuine issues of material fact regarding whether the 2012 foreclosure deed was void or by denying Adler’s postjudgment motion in which he had requested that the circuit court vacate its summary-judgment order.

Finally, Adler argues that the circuit court erred by failing to grant his postjudgment motion, in which he requested that the circuit court vacate .the order entering a judgment on the pleadings in favor of BNYM2 on his claims.

“When a motion for judgment on the pleadings is made by a party, ‘the trial court reviews the pleadings filed in the case and, if the pleadings show that no genuine issue of material fact is presented, the trial court will enter a judgment for the party entitled to a judgment according to the law.’ B.K.W. Enters., Inc. v. Tractor & Equip. Co., 603 So.2d 989, 991 (Ala.1992). See also Deaton, Inc. v. Monroe, 762 So.2d 840 (Ala.2000). A judgment ori the pleadings is subject to a de novo review. Harden v. Bitter, 710 So.2d 1254, 1255 (Ala.Civ.App.1997). A court reviewing a judgment on the pleadings accepts the facts stated in the complaint as true and views them in the light most favorable to the nonmoving party. Id. at 1255-56.”

Universal Underwriters Ins. Co. v. Thompson, 776 So.2d 81, 82 (Ala.2000). Adler filed a counterclaim against BNYM2, BNYM2 filed a reply in which it failed to specifically include affirmative defenses, see Rule 8(c) and Rule 12(b), Ala. R. Civ. P., and BNYM2 then filed a Rule 12(c), Ala. R. Civ. P., motion in which it specifically raised the affirmative defense that the applicable limitations periods on Adler’s claims had expired. Adler argued to the circuit court that BNYM2 had waived the statute-of-limitations defense by failing to include that defense in its reply, and that, therefore, BNYM2 could not properly raise that issue in its Rule 12(c) motion. The circuit court could have correctly concluded that, under the facts of this case, Adler’s argument was unavailing because “an affirmative defense that has not been pleaded may be revived if the defense appears on the face of the complaint,” or, in this case, on the face of Adler’s counterclaim. Hayes v. Payne, 523 So.2d 333, 334 (Ala.1987)(citing Wallace v. Alabama Ass’n of Classified Sch. Emps., 463 So.2d 135 (Ala.1984)). Accepting as true the facts as alleged by Adler in his counterclaim, Adler’s claims in this case accrued on June 5, 2012, which is the date of the 2012 foreclosure sale. Each of Adler’s claims is subject to a two-year limitations period, and Adler’s claims were asserted more than two years after June 5, 2012. Because the relevant limitations periods were apparent from the face of Adler’s counterclaim, BNYM2 did not waive the limitations defense by failing to include it in its reply to Adler’s counterclaim, and the defense was, therefore, properly raised in its Rule 12(c) motion.

Adler continues his argument by contending that, even if we conclude that BNYM2 did not waive the statute-of-limitations defense, that conclusion should not bar his claims because they are compulsory counterclaims. Adler cites, for the first time on appeal, Romar Development Co. v. Gulf View Management Corp., 644 So.2d 462, 471-73 (Ala.1994)(reasoning that a compulsory counterclaim is not subject to the defense of limitations). Because Adler failed to advance that argument below, this court will not hold the circuit court in error on a matter that was neither presented to nor decided by that court; our holding on this issue is especially necessitated in situations like the one presented in this appeal, when Adler is asserting that the circuit court’s alleged error amounted to an abuse of discretion. See Bevill v. Owen, 364 So.2d 1201, 1203 (Ala.1979). Thus, we conclude that Adler has failed to demonstrate that the circuit court erred by entering a judgment on the pleadings in favor of BNYM2 on his claims because, on its face, Adler’s counterclaim reflected that his claims had each been asserted after the applicable limitations period had expired, and, therefore, BNYM2 was entitled to judgment in its favor.

Based upon the foregoing, we conclude that the circuit court did not eiT by denying Adler’s postjudgment motion in which he requested that the circuit court vacate the orders it had entered in favor of BNYM2 in the 2014 action. Accordingly, we affirm.

AFFIRMED.

THOMPSON, P.J., and PITTMAN, MOORE, and DONALDSON, JJ., concur.

      . In other words, BNYM2 sought an order declaring the parties’ rights and responsibilities regarding the judgment in the 2012 ejectment action. ■ ■

      . We have not overlooked Adler’s assertion that the evidence regarding the assignment was newly discovered evidence; however, that argument mistakenly assumes that the alleged newly discovered evidence would impact BNYM2's right to maintain the 2014 action, a proposition that we have rejected.

      . We note that Adler’s position in the 2014 action is inconsistent with his position in the 2Q12 ejectment action. Presumably, Adler sought an order declaring that the 2012 foreclosure deed was valid because, when the POA initiated foreclosure proceedings against BNYM2 in 2013, Adler purported to purchase the property from the POA for $2,294.30.

      . Adler fails to present an argument alleging, or to cite authority indicating, error regarding whether "reinstatement” of the mortgage was proper after the circuit court determined that the 2012 foreclosure deed was void.
      " ‘Rule 28(a)(10), Ala. R.App. P., requires that arguments in an appellant’s ... brief contain “citations to the cases, statutes, [and] other authorities ... relied on,” ’ University of South Alabama v. Progressive Ins. Co., 904 So.2d 1242, 1247 (Ala.2004), and the effect of noncompliance with this rule is well established. ‘ "[W]here no legal authority is cited or argued, the effect is the same as if no argument had been made."’ Steele v. Rosenfeld, LLC, 936 So.2d 488, 493 (Ala.2005) (quoting Bennett v. Bennett, 506 So.2d 1021, 1023 (Ala.Civ.App.1987) (emphasis added in Steele)). This is so, because ‘it is neither this Court’s duty nor its function to perform an appellant's legal research,’ City of Birmingham v. Business Realty Inv. Co., 722 So.2d 747, 752 (Ala. 1998).”

        Walden v. Hutchinson, 987 So.2d 1109, 1120 (Ala.2007). Thus, the circuit court's holding reinstating of the mortgage is unchallenged on appeal.

      . Slander of title, negligence, and wantonness are each subject to two-year limitations periods. See Hosey v. Central Bank of Birmingham, Inc., 528 So.2d 843, 844 (Ala.1988)(con-cluding that "the statute of limitations for slander of title is two years, as presently provided by § 6—2—3 8 (k) ”); Mitchell v. Thomley, 98 So.3d 556, 559 (Ala.Civ.App.2012)(concluding that a negligence claim is subject to a two-year limitations period pursuant to § 6-2-38(1), Ala.Code 1975); and Ex parte Capstone Bldg. Corp., 96 So.3d 77, 88 (Ala.2012)(“reaffirm[ing] the proposition that wantonness claims are governed by the two-year statute of limitations now embodied in § 6-2-38(1)”). A claim for “wrongful” foreclosure can also be characterized as a claim for “negligent” foreclosure or "wanton” foreclosure. As already explained, claims of negligence and wantonness are each subject to two-year limitations periods. See Jackson v. Wells Fargo Bank, N.A., 90 So.3d 168, 171 (Ala.2012).