Cameron Givianpour v. Thomas J. Curtain, Sr.

Rel: 10/24/2014
Notice: This opinion is subject to formal revision before publication in the advance
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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2014-2015
____________________
1130098
____________________
Cameron Givianpour
v.
Thomas J. Curtain, Sr.
Appeal from Jefferson Circuit Court
(CV-12-900647)
PARKER, Justice.1
1
This case was originally assigned to another Justice on
this Court; it was reassigned to Justice Parker on September
9, 2014.
1130098
Cameron Givianpour appeals from the Jefferson Circuit
Court's dismissal of his complaint for the redemption of
certain real property. We reverse and remand.
I. Facts and Procedural History
At a foreclosure sale held on March 1, 2011, Thomas J.
Curtain, Sr., purchased the real property located on Caldwell
Mill Road, Mountain Brook, for $295,000 ("the property"). The
foreclosed mortgagors were Charles Givianpour and Concetta
Givianpour, Cameron Givianpour's parents.
It is undisputed that during their ownership of the
property, the Givianpours leased the property to Amy Newell.
After Curtain foreclosed on the property, he filed a complaint
against Newell in the Jefferson Circuit Court in which he
demanded possession of the property, as well as "damages for
wrongful retention of said real property." On July 15, 2011,
Newell filed a petition for Chapter 7 bankruptcy in the United
States Bankruptcy Court for the Southern Division of the
Northern District of Alabama ("the bankruptcy court"). On
July 29, 2011, Curtain filed in the bankruptcy court a motion
seeking a relief from the automatic stay; the bankruptcy court
on August 9, 2011, granted the motion and lifted the stay. On
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November 10, 2011, the Jefferson Circuit Court entered a
summary judgment in favor of Curtain, awarding him possession
of the property and damages. On December 14, 2011, the
bankruptcy court discharged Newell's debt, including any rent
owed for continued possession of the property.
On February 8, 2012, pursuant to § 6-5-252, Ala. Code
1975,2 Cameron Givianpour presented Curtain with a demand for
2
Section 6-5-252 provides:
"Anyone desiring and entitled to redeem may make
written demand of the purchaser or his or her
transferees for a statement in writing of the debt
and all lawful charges claimed by him or her, and
such purchaser or their transferees shall, within 10
days after such written demand, furnish such person
making the demand with a written, itemized statement
of all lawful charges claimed by him or her. The
redeeming party must then tender all lawful charges
to the purchaser or his or her transferee. If the
purchaser or his or her transferee fails to furnish
a written, itemized statement of all lawful charges
within 10 days after demand, he or she shall forfeit
all claims or right to compensation for
improvements, and the party so entitled to redeem
may, on the expiration of the 10 days, file his or
her complaint without a tender to enforce his or her
rights under this article and file a lis pendens
with the probate court.
"Tender or suit must be made or filed within one
year from foreclosure."
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lawful charges for the purpose of redeeming the property.3 On
February 13, 2012, Curtain presented Givianpour a statement in
the amount of $351,925.10, which amount included the purchase
price, interest, insurance, and ad valorem taxes on the
property. The statement also included a charge for payment of
rent on the property for tenant Newell in the amount of
$4,950: $450 per month from March 1, 2011, through January 31,
2012 ("the rent charge").
Givianpour did not tender the redemption funds to
Curtain. Instead, on February 29, 2012, Givianpour filed a
complaint in the Jefferson Circuit Court against Curtain
seeking to redeem the property. In his complaint, Givianpour
alleged that the rent charge constituted an illegal or
exaggerated charge for which no legal basis exists.
Givianpour stated that because of the allegedly unlawful
3
Cameron Givianpour had statutory authority to exercise
his parents' right of redemption pursuant to § 6-5-248(a)(7),
Ala. Code 1975, which states:
"(a) Where real estate, or any interest therein,
is sold the same may be redeemed by:
"....
"(7) Children, heirs, or devisees of
any debtor or mortgagor."
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charge he was "unable to ascertain the true amount of the
lawful charges owed" and that he "need[ed] the Court's
assistance to determine the amount of lawful charges properly
owed." Givianpour further stated that he was "ready to do
equity and pay all lawful charges to redeem the property."
Givianpour did not pay any of the redemption funds into the
circuit court as is generally done in accordance with § 6-5-
256, Ala. Code 1975,4 when a written statement of all debt and
charges is provided to the redemptioner.
On March 13, 2012, Curtain filed a "Motion to Dismiss for
Lack of Subject Matter Jurisdiction or for Judgment on the
Pleadings." The motion alleged, among other things, that the
circuit court lacked subject-matter jurisdiction under § 6-5-
256 because Givianpour had failed either to tender the amount
for redemption or to pay the amount for redemption into court
4
Section 6-5-256 provides:
"Upon the filing of any complaint as provided in
these sections and paying into court the amount of
purchase money and the interest necessary for
redemption and all lawful charges, if the written
statement thereof has been furnished or, if not
furnished, offering to pay such debt or purchase
price and all lawful charges, the circuit court
shall take jurisdiction thereof and settle and
adjust all the rights and equities of the parties,
as provided in this article."
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with the filing of his complaint. The motion asserted that
Givianpour was "only contesting the $4,950.00 claimed for rent
and therefore does not have a valid excuse for not tendering
money into the Court, but could have tendered the minimum
amount due for redemption." The motion further asserted that
because Givianpour had failed to comply "with all the
condition precedents to redemption," his complaint for
redemption was due to be dismissed.
On May 13, 2013, the circuit court entered an order
denying Curtain's motion for a judgment on the pleadings but
granting his motion to dismiss Givianpour's complaint for lack
of subject-matter jurisdiction. As to the former, the circuit
court denied the motion on the ground that the pleadings were
not "closed" as of March 13, 2012, the date the motion was
filed. As to the latter, the circuit court agreed with
Curtain that Givianpour's failure to pay the amount for
redemption into the court deprived the court of jurisdiction.
Specifically, the circuit court stated that "[p]er Ala. Code
1975, § 6-5-256, an Alabama Circuit Court is not vested with
jurisdiction over a disputed redemption amount claim unless
the redeemer/plaintiff simultaneously pays into Court the
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charges presented, or if disputed, the amount that is not
disputed." The circuit court further observed that Alabama
courts have held that strict compliance with § 6-5-256 is
"excused only where the redeemer/plaintiff can demonstrate a
valid excuse for not paying the full redemption amount."
Relying on this Court's decision in Moore v. Horton, 491 So.
2d 921 (Ala. 1986), the circuit court concluded that even
though the rent charge was "either improper, or questionable,
or both," it was "of easy verification." The circuit court
thus concluded that Givianpour "failed to exercise due
diligence to ascertain the proper amount to tender into court
on February 29, 2012, when he filed this action without
tendering the amount owed," and that he "has not demonstrated
any valid excuse" for that failure.
On June 11, 2013, Givianpour filed a motion to alter,
amend, or vacate the circuit court's judgment. In the motion,
Givianpour emphasized the fact that the parties disagreed as
to whether the rent charge was a "lawful charge" under §
6-5-253, Ala. Code 1975.5 Givianpour also argued, for the
5
Section 6-5-253 provides, in part:
"(a) Anyone entitled and desiring to redeem real
estate under the provisions of this article must
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also pay or tender to the purchaser or his or her
transferee the purchase price paid at the sale, with
interest at the rate allowed to be charged on money
judgments as set forth in Section 8-8-10[, Ala. Code
1975] (as it is now or hereinafter may be amended),
and all other lawful charges, also with interest as
aforesaid; lawful charges are the following:
"(1) Permanent improvements as
prescribed herein.
"(2) Taxes paid or assessed.
"(3) All insurance premiums paid or
owed by the purchaser.
"(4) Any other valid lien or
encumbrance paid or owned by such purchaser
or his or her transferee or if the
redeeming party is a judgment creditor or
junior mortgagee or any transferee thereof,
then all recorded judgments, recorded
mortgages and recorded liens having a
higher priority in existence at the time of
sale which are revived under Section
6-5-248(c)[, Ala. Code 1975].
"If the redemption is made from a
person who at the time of redemption owned
the debt for which the property was sold,
the redemptioner must also pay any balance
due on the debt, with interest as aforesaid
thereon to date.
"(5) Mortgagees of the purchaser, or
their transferees, are considered
transferees of the purchaser, and a party
redeeming must pay all mortgages made by
the purchaser or his or her transferee on
the land to the extent of the purchase
price.
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first time, that the charge for insurance had not been
"prorated" and that "[t]he statement of lawful charges does
not state the dates on which the premiums begin or end, nor
[does it] reflect the regularity of when they are paid or when
they are owed." The circuit court held a hearing on the
motion on June 26, 2013.
On September 6, 2013, the circuit court entered an order
denying Givianpour's motion to alter, amend, or vacate its
original judgment. In pertinent part, the order stated:
"If the purchaser's mortgages do not
exceed the amount of the purchase price,
the balance must be paid to the purchaser.
"(b) If the redeeming party is the debtor,
mortgagor, their respective spouses, children,
heirs, or devisees then, unless otherwise provided
herein, the judgments, mortgages, and liens revived
pursuant to 6-5-248(d)[, Ala. Code 1975,] are not
lawful charges as defined in subsection (a).
"(c) The purchaser shall be entitled to all
rents paid or accrued including oil and gas or
mineral agreement rentals to the date of the
redemption, and the rents must be prorated to such
date. The purchaser or his or her transferee and his
or her tenants shall have the right to harvest and
gather the crops grown by them on the place for the
year in which the redemption is made, but must pay
a reasonable rent for the lands for the proportion
of the current year to which such redemptioner may
be entitled."
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"In this case, the Court determined certain of
the charges claimed were easily computed and not in
dispute. The law does not preclude [Givianpour] from
paying undisputed charges, and, by his own
admission, Givianpour had the money to pay those
charges. While [Givianpour] is certainly entitled to
dispute the rents due and property insurance money
paid, the very nature of this statute is to 'pay the
amount' into Court, and then let the Court determine
proper charges due. As such, the Court agrees with
Curtain [that] the charges claimed included
undisputed amounts and/or amounts readily
ascertainable by Givianpour. Therefore,
[Givianpour's motion] is due to be denied."
Givianpour appeals the circuit court's judgment of May
13, 2013, dismissing Givianpour's complaint; he also
challenges its denial of his motion to alter, amend, or vacate
that order.
II. Standard of Review
"A ruling on a motion to dismiss is reviewed
without a presumption of correctness. Nance v.
Matthews, 622 So. 2d 297, 299 (Ala. 1993). This
Court must accept the allegations of the complaint
as true. Creola Land Dev., Inc. v. Bentbrooke
Housing, L.L.C., 828 So. 2d 285, 288 (Ala. 2002).
Furthermore, in reviewing a ruling on a motion to
dismiss we will not consider whether the pleader
will ultimately prevail but whether the pleader may
possibly prevail. Nance, 622 So. 2d at 299."
Newman v. Savas, 878 So. 2d 1147, 1148-49 (Ala. 2003).
III. Analysis
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Givianpour contends that the rent charge listed in the
statement provided by Curtain is not a "lawful charge" under
§ 6-5-253 and that the presence of such an unlawful charge in
the statement constitutes a valid excuse for his not tendering
any amount for redemption when he filed the complaint.
Curtain argues that the rent charge is a "lawful charge" under
§ 6-5-253(c) and that, even if it is not, the readily
ascertainable amount of the unlawful charge -- $4,950 -- means
that the charge does not qualify as a valid excuse for failing
to pay into court the amount not in dispute, i.e.,
$346,975.10.
We begin by determining whether the rent charge was a
"lawful charge" under § 6-5-253. That Code section expressly
lists five categories of lawful charges: permanent
improvements, taxes paid or assessed, insurance premiums paid
or owed by the purchaser, any other valid lien or encumbrance
paid or owned by the purchaser, and "all mortgages made by the
purchaser or his or her transferee on the land to the extent
of the purchase price." § 6-5-253(a). Curtain implicitly
concedes that the rent charge does not fall under the "lawful
charges" specifically listed in § 6-5-253(a). Instead, he
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contends that the rental charge is lawful under § 6-5-253(c),
which provides:
"(c) The purchaser shall be entitled to all
rents paid or accrued including oil and gas or
mineral agreement rentals to the date of the
redemption, and the rents must be prorated to such
date. The purchaser or his or her transferee and his
or her tenants shall have the right to harvest and
gather the crops grown by them on the place for the
year in which the redemption is made, but must pay
a reasonable rent for the lands for the proportion
of the current year to which such redemptioner may
be entitled."
The initial issue here is one of statutory construction.
"'Words used in a statute must be given their
natural, plain, ordinary, and commonly understood
meaning, and where plain language is used a court is
bound to interpret that language to mean exactly
what it says. If the language of the statute is
unambiguous, then there is no room for judicial
construction and the clearly expressed intent of the
legislature must be given effect.'"
Blue Cross & Blue Shield of Alabama, Inc. v. Nielsen, 714 So.
2d 293, 296 (Ala. 1998) (quoting IMED Corp. v. Systems Eng'g
Assocs. Corp., 602 So. 2d 344, 346 (Ala. 1992)). "Ala. Code
1975, § 6-5-253(c), provides that the purchaser is entitled to
all rents paid or accrued on the property until the date of
redemption. The redemptioner is entitled to all rents and
profits accruing subsequent to the redemption date." Pankey
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v. Daugette, 671 So. 2d 684, 689 (Ala. Civ. App. 1995) (citing
Wallace v. Beasley, 439 So. 2d 133, 136 (Ala. 1983)).
Curtain is essentially reading § 6-5-253(c) to state not
only that he is "entitled to" any rent that accrued during the
period after he purchased the property until the date of
redemption, but also that he can lawfully charge the
redemptioner for any such rents that he is unable to collect
from the tenant. Curtain cites no authority for such an
interpretation of § 6-5-253(c), and a plain reading of the
statute does not support it. Rent charges are not among the
categories of "lawful charges" listed in § 6-5-253(a).
Moreover, § 6-5-253(c) simply delineates which party, as
between the purchaser and the redemptioner, is entitled to
rents collected or accrued before and after the date of
redemption. Curtain already pursued in the circuit court the
individual responsible for paying the rental charge: Amy
Newell, the tenant. See, e.g., Moss v. Cedrom Coal Co., 228
Ala. 267, 269, 153 So. 195, 196 (1934) (discussing the fact
that a tenant is responsible for paying rent to the purchaser
if the tenant has "knowledge ... of said purchase and of the
purchasers' rights thereunder"). The fact that Newell was
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discharged of this debt in bankruptcy does not give Curtain a
legal right to charge Givianpour for the unpaid rent. Thus,
the rent charge Curtain submitted in his statement of charges
to Givianpour was not a lawful charge.
The next question before us is whether the inclusion in
the statement of an unlawful charge for rent on the property
constituted a valid excuse for Givianpour not to pay into
court any amount included in the statement when he filed his
complaint for redemption. Answering the foregoing question
requires some background in Alabama's jurisprudence on
redemption.
This Court has stated that "[t]he purpose of the
redemption statutes is to allow a defaulting purchaser, with
certain restrictions, the opportunity to redeem property that
has been lost by foreclosure. Indeed, statutory rights of
redemption are intended to 'rescue' from 'sacrifice' the
property of a debtor." Spencer v. West Alabama Props., Inc.,
564 So. 2d 425, 427 (Ala. 1990). On their face, §§ 6-5-252
and 6-5-253(a) do not provide an exception to the requirement
that a redeeming party tender to the purchaser at foreclosure
the purchase price and all lawful charges as specified by the
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purchaser. The only exception from the requirement in 6-5-256
that a redemptioner pay into court "the amount of purchase
money and the interest necessary for redemption and all lawful
charges" upon filing a complaint for redemption is if the
purchaser fails to provide the redemptioner with a statement
of charges within 10 days of a demand for one. See § 6-5-252.
Because of the aforementioned purpose of the redemption
statutes, however, this Court repeatedly has stated:
"'"Courts of equity, in
keeping with the general policy
of redemption statutes, namely,
the prevention of the sacrifice
of real estate by forced sales,
have excused the literal
compliance with these statutes,
and entertained bills for
statutory redemption in a variety
of cases, wherein, because of
some fault of the party from whom
redemption is sought, compliance
would be useless, or, for any
reason, not the fault of the
redemptioner, it becomes
impractical to comply."'"
Watts v. Rudulph Real Estate, Inc., 675 So. 2d 411, 413 (Ala.
1996) (quoting Garvich v. Assocs. Fin. Servs. Co., 435 So. 2d
30, 33 (Ala. 1983), quoting in turn Rodgers v. Stahmer, 235
Ala. 332, 333, 179 So. 229, 230 (1938)).
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The first case to provide a detailed explanation as to
when a redemptioner is permitted to forgo tendering into court
the amount necessary to redeem was Francis v. White, 160 Ala.
523, 526-27, 49 So. 334 (1909).6 In Francis, this Court
explained:
"The statute ... contemplates that the redemption be
perfected out of court between the parties by each
party's doing that which the statute directs. A
resort to equity is only necessary when the
purchaser or creditor refuses to accept the tender
and to convey, and declines to inform the debtor of
the amount necessary to be tendered, when known to
him and not to the debtor, or when it is impossible
or impracticable for the debtor to conform to the
requirements of the statute without the aid of a
court of equity. If the debtor could be sure that he
had paid or tendered all that the statute requires,
this payment or tender would have the effect, under
the very language of the statute, to reinvest him
with the title, and the purchaser must reconvey to
him. Code 1896, § 3507. It is most often the case
that resort is had to equity to perfect the
statutory right, because without the aid of the
court the debtor cannot know the exact amount
necessary to be paid or tendered. The main object of
the bill is often to ascertain this fact. If the
debtor knows the exact amount which he must pay or
tender, or if by the exercise of due diligence he
6
The Court of Civil Appeals has noted that "[a]lthough the
redemption statutory provisions have been amended, and/or
repealed and reenacted from time to time, the substance of the
statutory provisions at issue have not changed." Skelton v.
J&G, LLC, 922 So. 2d 926, 931 n. 7 (Ala. Civ. App. 2005).
Because previous cases were interpreting redemption statutes
not materially different than the current ones, those cases
constitute precedent on this subject.
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can ascertain it without the aid of the court, then
his bill for this purpose would be without equity.
Equity will not undertake to do that which the
debtor should have done for himself. So, in the bill
to redeem under the statute, the debtor must either
aver a payment or a tender of all the amounts by the
statute required, or to show a valid excuse for
failure therein, before filing, such as nonresidency
of purchaser, or redemptioner's inability to
ascertain the amounts necessary to be paid or
tendered, and ask the court to aid him in
ascertaining the true amounts, and offer to pay such
amounts before insisting upon his right to redeem or
to be reinvested with the title. Francis v. White,
142 Ala. 590, 39 So. 174 [(1905)]. Payment or
tender of the amounts necessary to redeem is not in
all cases a prerequisite to the filing or
maintaining of the bill, yet it is always such to
the perfection of the right to redeem, and the bill
must offer to pay or tender such amounts when
ascertained, and show a valid excuse for not so
doing before the filing of the bill as well as a
good reason why the aid of the court is necessary
for this special purpose."
160 Ala. at 526-27, 49 So. at 335 (emphasis added). In Moore
v. Horton, 491 So. 2d 921, 923 (Ala. 1986), this Court
summarized the explanation in Francis as follows: "[I]n order
to redeem under the statute, one must either aver a payment or
tender of all the amounts required by the statute, or show a
valid excuse for failure to do so."7
7
As demonstrated by the following summary of Alabama law
in Wiltsie on Mortgage Foreclosure, we note that this
principle of law has long been well established in Alabama:
"[I]n an action to enforce the statutory right of
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In concluding that the rent charge did not constitute a
"valid excuse" for failing to pay the statutorily required
amount into court, the circuit court relied on a statement in
Moore that "the inclusion of improper or questionable charges
is not, in and of itself, a valid excuse for failure to tender
the amount owed." Id. at 924. Moore, in turn, relied upon
redemption, there must be an allegation of tender
prior to action; Crumpton v. Campbell, 228 Ala. 79,
152 So. 220 [(1934)]; Foerster v. Swift, 216 Ala.
228, 113 So. 31 [(1927)]; see Seals v. Rogers, [172
Ala. 651,] 55 So. 417 [(1911)]; Lacey v. Lacey ...,
39 So. 922 [(Ala. 1905)(not reported in Alabama
Reports)]; or of excuse for failure to make such
tender. Rodgers v. Stahmer, [235 Ala. 332,] 179 So.
229 [(1938)]; Goodwin v. Donohue 229 Ala. 66, 155
So. 587 [(1934)]; Hart v. Jackson Street Baptist
Church of Birmingham, Ala., Inc., 224 Ala. 64, 139
So. 88 [(1932)]; Wittmeier v. Cranford, 199 Ala. 1,
73 So. 981 [(1917)].
"And in addition to alleging a tender, the bill
must show payment into court, where such payment is
not excused. Lacey [sic] v. Fowler, 206 Ala. 679, 91
So. 593 [(1921)]. See Wittmeier v. Cranford, supra.
"A mortgagor seeking to redeem is excused from
alleging a tender where he avers that he did not
know the correct amount to be tendered, and that the
mortgagee's itemized statement (required by statute)
was excessive and obscure. Southside Bank v. Daniel,
221 Ala. 327, 128 So. 779 [(1930)]."
3 A.W. Fribourg and S.V. Elting, Wiltsie on Mortgage
Foreclosure § 1259, at pp. 1892-93 n. 64 (5th ed. 1939).
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Johnson v. Williams, 212 Ala. 319, 321, 102 So. 527, 528
(1924). In Johnson, the redemptioner did not tender any
amount before filing a complaint. She contended that payment
was excused because a judgment the purchaser obtained against
her husband in a separate action for $328.76 and a $.95 fee
for recording the foreclosure deed that was listed in the
statement of charges did not constitute lawful charges. The
Johnson Court first concluded that it did not read the
notation in the purchaser's statement of the separate judgment
against the redemptioner's husband to be "a condition
precedent for statutory redemption." Johnson, 212 Ala. at
321, 102 So. at 528. As to the recording fee, the Court
stated that it
"was not a proper charge or expense, was not within
the statute (Snow v. Montesano Land Co., [206 Ala.
310, 89 So. 719 (1921)]), and was of easy
elimination by the redemptioner in making the
tender. The amount of interest was of easy
verification. The complainant has shown no excuse
which the law recognizes for failure to aver a
tender; and by the exercise of due diligence she
could have ascertained the necessary and required
amount without the aid of equity."
Id.
In Moore, the redemptioner likewise failed to tender any
amount into court before filing her complaint. She contended
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that "because of the failure [of the purchaser] to
specifically and fairly itemize the lawful charges, she was
unable to determine what amount she needed to tender." 491
So. 2d at 923. In response, the Moore Court quoted a portion
of the Francis Court's explanation of when equity may be
invoked in the redemption process, followed by the quotation
of much of the passage from Johnson quoted above. The Moore
Court then stated:
"Therefore, the inclusion of improper or
questionable charges is not, in and of itself, a
valid excuse for failure to tender the amount owed.
There must be an exercise of due diligence on the
part of the person seeking redemption to ascertain
the proper amount to be tendered. In a more recent
decision, Dicie v. Morris, 285 Ala. 650, 235 So. 2d
796 (1970), this Court stated that there must be a
bona fide disagreement between the parties as to
what the lawful charges were before one side could
seek the aid of the court. Moore has presented this
Court with no proof of any such disagreement;
moreover, the Hortons have stated that had Moore
offered an amount which they considered reasonable,
the matter might well have been settled at that
time. It appears to us that, had Moore undertaken a
diligent inquiry, she might well have been able to
ascertain the proper amount due to be paid to the
Hortons. We hold that there was ample support for
the trial court's findings that Moore failed to
comply with the statutory prerequisites to
redemption and that she failed to allege sufficient
grounds to excuse the statutorily required tender."
491 So. 2d at 924 (emphasis added).
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In its order of May 13, 2013, the circuit court concluded
that because the rent charge was "of easy verification,"
Givianpour "failed to exercise due diligence to ascertain the
proper amount to tender into court ...." In its order of
September 6, 2013, the circuit court similarly concluded that
"certain of the charges claimed were easily computed and not
in dispute" and that, therefore, Givianpour should have paid
the "undisputed charges" and allowed the court to "determine
the proper charges due." In so holding, the circuit court
misunderstood the holdings in Johnson and Moore.
In both Johnson and Moore, the Court concluded that the
redemptioner failed to demonstrate that there was a "bona fide
disagreement between the parties as to what the lawful charges
were." Moore, 491 So. 2d at 924. In Johnson, there was not
even a colorable argument that the recording fee was a lawful
charge. In Moore, the redemptioner apparently failed to
explain which charges the parties disagreed about or the basis
for the disagreement on those charges. Under those
circumstances, "the inclusion of improper or questionable
charges is not ... a valid excuse for failure to tender the
amount owed." Moore, 491 So. 2d at 924.
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Unlike Johnson and Moore, in the present action it is
clear that Givianpour and Curtain legitimately disagree as to
whether the rent charge is a lawful charge under the statute.
As explained in Francis, when the redemptioner presents a
valid excuse for failing to tender the statutorily required
amount, tender is not required to invoke the aid of the court.
In contrast, although the circuit court acknowledged that the
rental charge was "questionable," it reasoned that Givianpour
should have forwarded the undisputed amount into court before
he could receive the court's aid in determining whether the
rent charge was lawful. In other words, the circuit court
agreed with Curtain's argument that a charge must not only be
unlawful, but also unclear in amount for such a charge to
constitute a valid excuse for failing to tender the redemption
amount.
Previous cases do not support the circuit court's
conclusion. Several cases hold that the presence of an
unlawful charge in the purchaser's statement -- not just
charges that are difficult to ascertain without the aid of a
court -- constitutes a valid excuse for not tendering the
redemption amount.
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For example, in Beavers v. Transamerica Financial
Services, Inc., 474 So. 2d 1105 (Ala. 1985), the Beaverses
purchased the subject property at a foreclosure sale.
Transamerica Financial Services, Inc., which held a second
mortgage on the property, gave the Beaverses notice of its
desire to redeem the property, but the parties could not agree
on the proper redemption amount, and Transamerica filed a
complaint for redemption. When Transamerica filed its
complaint, it paid into court what it thought to be the
statutorily required amount, which was placed in an interest-
bearing account at Transamerica's request. The dispute over
lawful charges included the date for calculating interest,
whether Transamerica was entitled to credit for rents the
Beaverses had collected on the property, and whether the trial
court was correct in returning to Transamerica the interest
that had been earned on the sum Transamerica had deposited
with the court upon the filing of the complaint for
redemption. Thus, all the disputed charges were "of easy
verification." In addressing the issue of which party was
entitled to the interest on the sum Transamerica had deposited
into court, the Beavers Court noted that "[i]t is accepted law
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... that a redemptioner need not always tender the redemption
amount into the court." Beavers, 474 So. 2d at 1108. The
Court quoted Francis for support of this proposition. The
Court then observed that, because Transamerica was "in good
faith disagreement over the redemption amount," it "was not
required to tender the funds into the court." 474 So. 2d at
1108-09. The fact that Transamerica was not required to
tender any amount, combined with the fact that "§ 6-5-235[,
repealed effective January 1, 1989; now § 6-5-253] does not
include such interest among the items comprising the
redemption amount," led the Court to conclude that "the trial
court correctly returned the excess escrow money to
Transamerica." Id. Thus, in Beavers, the Court concluded
that the redemptioner was not required to pay any redemption
amount into court because of a "good faith disagreement over
the redemption amount," even though the amount in dispute was
easily calculable.
Similarly, in Dicie v. Morris, 285 Ala. 650, 654, 235 So.
2d 796, 799 (1970), the Court concluded:
"In our opinion the bill avers a valid excuse as
to why these amounts were not paid or tendered
before its filing, and the proof supports this
averment. The parties were in bona fide disagreement
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as to what were lawful charges, and also, as to the
amounts of some charges. A resort to equity was
necessary to decide these issues, or the appellant,
in the alternative, stood to either pay what she
considered unlawful charges, or lose her right to
redeem. This shows a valid excuse for failure to pay
or tender into court the amounts required by the
statute."
(Emphasis added.)
In Lavretta v. L. Hammel Dry Goods Co., 243 Ala. 34, 36,
8 So. 2d 264, 265 (1942), the Court noted that "[w]hen the
statement of lawful charges claimed includes exaggerated or
illegal demands, or if so questionable that the redemptioner
acting in good faith cannot reasonably ascertain the amount he
should tender for redemption, no tender need be made before
filing a bill to redeem." (Emphasis added.) Applying that
rule to the facts presented in that case, the Lavretta Court
reasoned:
"The transfer, itself is conclusive to the effect
that the debt and deficiency judgment were not owned
by L. Hammel Dry Goods Company within the purview of
the statute, and, for that reason, was not a lawful
charge on redemption from the vendee of the
mortgagee purchaser. Tender and payment into court
were therefore excused."
Id. (emphasis added). See also Davis v. Anderson, 678 So. 2d
140, 143 (Ala. Civ. App. 1995) (noting that "if the redeeming
party claims that the lawful charges claimed by the purchaser
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include exaggerated or illegal demands, no tender is required
to be made before filing a complaint to redeem"); Nichols v.
Colvin, 674 So. 2d 576, 579 (Ala. Civ. App. 1995) (quoting
Lavretta, 243 Ala. at 36, 8 So. 2d at 265).
As noted above, the circuit court expressly held, and
Curtain repeatedly insists in his brief to this Court, that
Givianpour was required to pay the undisputed amount into
court and then allow the circuit court to determine whether
the rent charge was lawful. Once again, however, our cases do
not support this conclusion.
In Wallace v. Beasley, 439 So. 2d 133 (Ala. 1983), the
redemptioner, Wallace, filed a complaint because he disagreed
with the Beasleys' assessment of the value of permanent
improvements they had made since purchasing the real property.
Wallace did not pay any amount into court. The parties
stipulated to an undisputed amount of $11,353.72, but they
disagreed as to the Beasleys' assessment of over $20,000 for
permanent improvements. The Beasleys argued that Wallace's
complaint for redemption was not proper because he failed to
pay any amount into court and, they argued, he did not provide
an adequate excuse for his failure to do so. The Court found
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"the Beasleys' contention to be without merit, since,
reviewing the record, we are satisfied that the redemptioner
provided a sufficient excuse -- that there was a bona fide
disagreement as to the amount of lawful charges due in this
case." 439 So. 2d at 136. The Wallace Court did not indicate
that Wallace needed to pay the amount that was not disputed
into court in order to receive a ruling on the amount that was
in dispute.
In Dorrough v. Barnett, 216 Ala. 599, 114 So. 198 (1927),
the Court stated:
"[I]t is now settled that tender or payment into
court of admitted or readily ascertained portions of
the full amount required to redeem is not required,
if other charges are in dispute, and must be
determined in equity before the redemptioner can
know the full terms upon which he must redeem the
property."
Dorrough, 216 Ala. at 601, 114 So. at 200.
On rehearing in Slaughter v. Webb, 205 Ala. 334, 337, 87
So. 854, 856 (1921) (opinion on rehearing), the purchaser
argued that a predecessor statute to § 6-5-252 "requires the
payment into court of debt, interest, and all other lawful
charges as a condition to redemption in all cases, and that,
if the amount of some charges cannot be ascertained, then the
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payment into court of such as can be ascertained." 205 Ala.
at 337, 87 So. at 856. In other words, the purchaser made the
same argument on rehearing that Curtain presented to the
circuit court and now presents to this Court. The Slaughter
Court seemed incredulous that it would have to answer such an
argument, stating: "Heretofore we had hardly deemed it
necessary to answer this argument. We read [the predecessor
statute to § 6-5-252] to mean that, if a written statement of
lawful charges has not been furnished, an offer to pay debt
and all lawful charges made in the bill will suffice." Id.
After discussing a few cases cited in its original opinion,
including Francis, the Court concluded in its opinion on
rehearing:
"[The purchaser] cannot find in these cases, or
in the amended statutes, any authority for the
doctrine that the party coming to redeem must make
a partial tender before filing his bill, or with his
bill when filed, though he is unable to ascertain
the total amount of lawful charges due; that he must
offer to give up, or give up if need be, money,
though he does not know that ultimately he will be
allowed to redeem or on what terms he may be allowed
to redeem. The law against partial redemptions was
stated in Prichard v. Sweeney,[109 Ala. 651, 656, 19
So. 730, 732 (1896),] cited in the original opinion,
and it could never have been reasonably conceived to
be otherwise."
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Id. (emphasis added). See also 59A C.J.S. Mortgages § 1456
(2009) (stating that, in Alabama, "[t]ender or payment into
court of admitted or readily ascertained portions of the full
amount required to redeem is not required if other charges are
in dispute and must be determined in equity before the
redemptioner can know the full terms on which he or she must
redeem the property." (citing Wallace v. Beasley, 439 So. 2d
133 (Ala. 1983))).
Curtain's only response to these authorities is to cite
Johnson, noting that the Johnson Court stated that the
unlawful charge of $.95 for the recording fee "was of easy
elimination by the redemptioner in making the tender." 212
Ala. at 321, 102 So. at 528. As we already observed, however,
in Johnson no colorable argument existed that a recording fee
for the foreclosure deed was a lawful charge. Thus, there was
no bona fide disagreement between the parties as to the amount
of tender. In this case, Curtain argued to the circuit court,
and he argues to this Court, that the rent charge was a lawful
charge under § 6-5-253(c), a subsection that expressly
references "rents paid or accrued ... to the date of
redemption." The existence of a bona fide disagreement in
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this case over the rent charge means that the charge was not
"of easy elimination by the redemptioner." Furthermore, to
the degree that Johnson could be read as requiring a partial
payment of the undisputed amount, Wallace and Dorrough clearly
state the contrary and were decided after Johnson.
In sum, our jurisprudence reflects that an unlawful
charge need not be uncertain in its amount in order to
constitute a valid excuse for not tendering the redemption
amount into court. Additionally, our cases provide that
partial payment for the undisputed amount is not required to
invoke the jurisdiction of the circuit court to receive a
determination concerning the disputed amount. The circuit
court erred in concluding otherwise.
IV. Conclusion
We conclude that the rent charge on Curtain's statement
for redemption constituted an unlawful charge, that such an
unlawful charge, over which there is a bona fide disagreement,
constitutes a valid excuse for failure to tender the
redemption amount or to pay it into court, and that payment of
the amount not in dispute is not required to invoke the
jurisdiction of the circuit court to settle the disputed
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amount. Accordingly, the judgment of the circuit court is
reversed and the cause is remanded for further proceedings
consistent with this opinion.
REVERSED AND REMANDED.
Moore, C.J., and Stuart, Bolin, Shaw, Main, Wise, and
Bryan, JJ., concur.
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