IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

CHERYL WILLIAMS, )

 )

Plaintiff, )

 )

v. ) CIVIL ACTION 15-0164-WS-N

 )

WELLS FARGO HOME )

MORTGAGE, INC., et al., )

 )

Defendants. )

 ORDER

This matter is before the Court on: (1) the plaintiff’s motion for partial 

summary judgment as to liability against defendant Federal National Mortgage 

Association (“Fannie Mae”), (Doc. 57); (2) the plaintiff’s supplemental motion for 

summary judgment as to damages, (Doc. 71); and (3) Fannie Mae’s motion for 

summary judgment. (Doc. 70). The parties have filed briefs and evidentiary 

materials in support of their respective positions, (Docs. 58, 63, 69, 70, 72, 74-78), 

and the motions are ripe for resolution. After careful consideration, the Court 

concludes that Fannie Mae’s motion is due to be denied, the plaintiff’s motion for 

partial summary judgment is due to be granted, and the plaintiff’s motion for 

summary judgment is due to be granted in part and denied in part.

1

BACKGROUND

According to the second amended complaint, (Doc. 54), Fannie Mae owned 

the mortgage loan on the plaintiff’s residence and was the mortgagee. Defendant 

Wells Fargo Home Mortgage, Inc. (“Wells Fargo”) acted as loan servicer. When 

the loan fell into default, the mortgage was assigned to Wells Fargo, for the sole 

 1 Fannie Mae’s request for oral argument, (Doc. 70 at 1), construed as a motion 

for such relief, is denied. Civil Local Rule 7(h).

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purpose of enabling Wells Fargo as servicer to conduct a foreclosure sale on 

Fannie Mae’s behalf. Possession of the note was also transferred to Wells Fargo, 

for the same sole purpose. Fannie Mae purchased the property at foreclosure, in 

an amount that just satisfied the indebtedness, and received from Wells Fargo 

(acting on Fannie Mae’s behalf) a foreclosure deed. Pursuant to the prior 

agreement of Fannie Mae and Wells Fargo, possession of the note automatically 

reverted to Fannie Mae after the sale; despite temporarily parting with possession, 

Fannie Mae at all times remained mortgagee and owner of the note.

The plaintiff timely vacated the property and at all relevant times retained 

her statutory right of redemption. Within the redemption period, Fannie Mae sold 

the property to a third party for approximately $124,000 more than the plaintiff’s 

indebtedness. The plaintiff brings this action to recover that excess, asserting five 

causes of action: (1) breach of the note and/or mortgage; (2) breach of quasifiduciary duty; (3) money had and received; (4) unjust enrichment; and (5) 

constructive trust. (Doc. 17 at 6-9).

Fannie Mae moved to dismiss,2 arguing that, under Alabama law, a 

mortgagee that purchases mortgaged property at a foreclosure sale for the amount 

of the mortgage debt and then resells it to a third party during the statutory 

redemption period for an amount exceeding the mortgage debt has no duty to 

remit the excess to the mortgagor. Fannie Mae also argued that, even if such a 

duty exists, it was not the mortgagee when the foreclosure sale occurred. (Doc. 

18). The Court denied the motion. It first concluded that “the Alabama Supreme 

Court would ... require a mortgagee to deliver to its mortgagor the excess over 

indebtedness received at a resale within the redemption period.” (Doc. 48 at 2). 

The Court also expressed skepticism that the Alabama Supreme Court “would 

permit a mortgagee to shed its duties towards the mortgagor by the simple 

 2 Fannie Mae moved to dismiss the first amended complaint, (Doc. 17), which 

was substantively equivalent to the second amended complaint filed after Fannie Mae’s 

motion was denied. 

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expedient of assigning its mortgage to another for the limited purpose of 

foreclosing, while retaining for itself all the accruing benefits.” (Doc. 34 at 5).

On their respective motions for summary judgment, the plaintiff seeks to 

confirm these rulings, while Fannie Mae seeks to undo them. The plaintiff also 

seeks judgment in his favor on each of his causes of action, along with an award of 

damages. 

DISCUSSION

Summary judgment should be granted only if “there is no genuine dispute 

as to any material fact and the movant is entitled to judgment as a matter of law.” 

Fed. R. Civ. P. 56(a). The party seeking summary judgment bears “the initial 

burden to show the district court, by reference to materials on file, that there are no 

genuine issues of material fact that should be decided at trial.” Clark v. Coats & 

Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The moving party may meet its 

burden in either of two ways: (1) by “negating an element of the non-moving 

party’s claim”; or (2) by “point[ing] to materials on file that demonstrate that the 

party bearing the burden of proof at trial will not be able to meet that burden.” Id. 

“Even after Celotex it is never enough simply to state that the non-moving party 

cannot meet its burden at trial.” Id.; accord Mullins v. Crowell, 228 F.3d 1305, 

1313 (11th Cir. 2000); Sammons v. Taylor, 967 F.2d 1533, 1538 (11th Cir. 1992). 

“When the moving party has the burden of proof at trial, that party must 

show affirmatively the absence of a genuine issue of material fact: it must support 

its motion with credible evidence ... that would entitle it to a directed verdict if not 

controverted at trial. [citation omitted] In other words, the moving party must 

show that, on all the essential elements of its case on which it bears the burden of 

proof, no reasonable jury could find for the nonmoving party.” United States v. 

Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991) (en banc) 

(emphasis in original); accord Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 

(11th Cir. 1993).

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“If the party moving for summary judgment fails to discharge the initial 

burden, then the motion must be denied and the court need not consider what, if 

any, showing the non-movant has made.” Fitzpatrick, 2 F.3d at 1116; accord 

Mullins, 228 F.3d at 1313; Clark, 929 F.2d at 608.

“If, however, the movant carries the initial summary judgment burden ..., 

the responsibility then devolves upon the non-movant to show the existence of a 

genuine issue of material fact.” Fitzpatrick, 2 F.3d at 1116. “If the nonmoving 

party fails to make ‘a sufficient showing on an essential element of her case with 

respect to which she has the burden of proof,’ the moving party is entitled to 

summary judgment.” Clark, 929 F.2d at 608 (quoting Celotex Corp. v. Catrett, 

477 U.S. 317 (1986)) (footnote omitted); see also Fed. R. Civ. P. 56(e)(2) (“If a 

party fails to properly support an assertion of fact or fails to properly address 

another party’s assertion of fact as required by Rule 56(c), the court may ... 

consider the fact undisputed for purposes of the motion ....”).

In deciding a motion for summary judgment, “[t]he evidence, and all 

reasonable inferences, must be viewed in the light most favorable to the 

nonmovant ....” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 

(11th Cir. 2003).

There is no burden on the Court to identify unreferenced evidence 

supporting a party’s position.3 Accordingly, the Court limits its review to the 

exhibits, and to the specific portions of the exhibits, to which the parties have 

expressly cited. Likewise, “[t]here is no burden upon the district court to distill 

every potential argument that could be made based upon the materials before it on 

 3 Fed. R. Civ. P. 56(c)(3) (“The court need consider only the cited materials, but it 

may consider other materials in the record.”); accord Adler v. Wal-Mart Stores, Inc., 144 

F.3d 664, 672 (10th Cir. 1998) (“The district court has discretion to go beyond the 

referenced portions of these [summary judgment] materials, but is not required to do 

so.”). “[A]ppellate judges are not like pigs, hunting for truffles buried in briefs,” and 

“[l]ikewise, district court judges are not required to ferret out delectable facts buried in a 

massive record ....” Chavez v. Secretary, Florida Department of Corrections, 647 F.3d 

1057, 1061 (11th Cir. 2011) (internal quotes omitted). 

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summary judgment,” Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 

(11th Cir. 1995), and the Court accordingly limits its review to those arguments the 

parties have expressly advanced.

I. Liability.

The parties agree that no material facts are in dispute and that the Court is 

presented only with pure questions of law. (Doc. 58 at 1; Doc. 69 at 1; Doc. 70 at 

1). The questions are the same ones addressed on motion to dismiss. Fannie 

Mae’s argument is indistinguishable from the argument it asserted on motion to 

dismiss, and the Court rejects it for reasons stated in its orders denying the motion 

to dismiss and denying Fannie Mae’s subsequent motion to certify a question to 

the Alabama Supreme Court. (Docs. 34, 48). The Court concludes that the 

Alabama Supreme Court would hold that a mortgagee purchasing mortgaged 

property at a foreclosure sale for the amount of the mortgage debt and then 

reselling the property to a third party during the statutory redemption period for an 

amount exceeding the mortgage debt must remit the excess to the mortgagor. The 

Court further concludes that the Alabama Supreme Court would apply this rule to 

Fannie Mae under the circumstances presented here. Fannie Mae’s motion for 

summary judgment is therefore due to be denied. 

The plaintiff seeks summary judgment as to liability on all five of his 

causes of action. (Doc. 57). As noted, Fannie Mae concedes both that there are no 

material issues of disputed fact relative to the plaintiff’s motion and that the only 

issues of law to be decided on his motion are those addressed above. (Doc. 69 at 

1). Fannie Mae thereby concedes that, given the resolution of those legal issues, 

the plaintiff is entitled to judgment as to liability on all five of his causes of action. 

The plaintiff’s motion for partial summary judgment as to liability is therefore due

to be granted.

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II. Damages. 

In his supplemental motion for summary judgment, the plaintiff turns to 

damages and requests an award of $113,862.03, plus prejudgment interest. (Doc. 

71). Fannie Mae responds that any award must exclude prejudgment interest and 

the expenses of resale. (Doc. 75 at 1).

A. Expenses of Resale.

In Springer v. Baldwin County Federal Savings Bank, 597 So. 2d 677 (Ala. 

1992) (“Springer II”), the Alabama Supreme Court ruled that, for purposes of 

calculating the credit due a mortgagor from the mortgagee’s profitable resale 

within the redemption period, the “ordinary and necessary expenses incurred” by 

the mortgagee in connection with the resale – including “expenses of advertising, 

selling, and conveying the property” – are to be excluded. Id. at 678. Though the 

mortgagee may act as a quasi-trustee over the property it purchased at the 

foreclosure sale, “we cannot conclude that he is a trustee at his own expense.” Id. 

The Court agrees with Fannie Mae, (Doc. 75 at 5-6), that Springer II applies here; 

the plaintiff makes no argument to the contrary.

Instead, the plaintiff argues that Fannie Mae cannot take advantage of 

Springer II without filing either a counterclaim for, or an affirmative defense 

based on, setoff or recoupment. Since Fannie Mae did neither, the plaintiff 

concludes it is barred from subtracting its expenses of resale from the plaintiff’s 

recovery. (Doc. 71 at 2 n.2; Doc. 72 at 2 n.1; Doc. 77 at 4-5). 

The plaintiff, however, has not explained how Springer II implicates either 

setoff or recoupment, both of which concern amounts the plaintiff owes the 

defendant – in recoupment, on the same transaction made the basis of the 

complaint or on a closely related transaction; in setoff, on extrinsic transactions. 

E.g., Ashe-Carson Co. v. Bonifay, 41 So. 816, 817-18 (Ala. 1906); Finish Line v. 

J.F. Pate & Associates Contractors, Inc., 90 So. 3d 749, 754 (Ala. Civ. App. 

2012). Nothing in Springer II suggests that mortgagors owe mortgagees the 

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expenses of resale or that mortgagees must sue mortgagors to recover such 

amounts. On the contrary, the Springer II Court recognized that mortgagees must 

apply the profit on a resale within the redemption period to reduce the mortgagor’s 

debt, and the question it answered was how to measure “profit” for purposes of 

quantifying the mortgagee’s obligation. 597 So. 2d at 678 (“The issue now before 

this Court is whether the term ‘profit’ or ‘sum realized’ is to be determined with or 

without consideration of any expenses incurred from [resale].”).

The parties have stipulated: (1) that the gross amount received on resale of 

the property was $380,000; (2) that the net proceeds of the resale were 

$349,408.86; and (3) that Fannie Mae incurred additional expenses related to the 

resale totaling $5,987.56. (Doc. 63 at 2). The parties also agree that the 

foreclosure sale price was $266,137.97 and that this represents a “full debt” sale, 

eliminating the total amount owed by the plaintiff at the time of foreclosure. (Doc. 

71 at 2; Doc. 75 at 2). Because the ordinary and necessary expenses of resale are 

to be subtracted from the gross resale price in determining the profit for which 

Fannie Mae must account, and because the plaintiff makes no argument that any of 

the identified expenses are not ordinary or necessary, the plaintiff’s damages are 

$77,283.33.

B. Prejudgment Interest.

“All contracts, express or implied, for the payment of money, or other 

thing, or for the performance of any act or duty bear interest from the day such 

money, or thing, estimating it at its money value, should have been paid, or such 

act, estimating the compensation therefor in money, performed.” Ala. Code § 8-8-

8. The plaintiff seeks such interest under Counts One and Three (breach of 

note/mortgage and money had and received). (Doc. 71 at 2 n.3; Doc. 72 at 2; Doc. 

77 at 2-3).

Fannie Mae asserts that any contract between the parties was extinguished 

by the full debt foreclosure, leaving nothing to support an award of interest. (Doc. 

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75 at 7). This argument comes too late since, as discussed in Part I, Fannie Mae 

previously (one month earlier) conceded there is no legal or factual obstacle to its 

liability on each of the plaintiff’s claims other than the two legal issues Fannie 

Mae unsuccessfully advanced. (Doc. 69 at 1). Fannie Mae’s repetition of its 

extinguishment argument in an unauthorized sur-reply brief, (Doc. 78 at 13-15), 

does not improve its position.4

The plaintiff seeks prejudgment at the rate of 6% per annum, running from 

the resale date of February 26, 2013. (Doc. 72 at 2). Fannie Mae offers no 

response to this figure or this date, which the Court therefore accepts. The Court 

calculates the resulting amount as $15,070.00.

CONCLUSION

For the reasons set forth above, Fannie Mae’s motion for summary 

judgment is denied, the plaintiff’s motion for partial summary judgment as to 

liability is granted, and the plaintiff’s motion for summary judgment as to 

damages is granted in part. The Court will by separate order enter final 

judgment in favor of the plaintiff in the amount of $92,353.33. To the extent the 

plaintiff seeks any higher recovery, his motion for summary judgment is denied.

DONE and ORDERED this 23rd day of May, 2016.

s/ WILLIAM H. STEELE

CHIEF UNITED STATES DISTRICT JUDGE

 4 Because Fannie Mae forfeited any argument that the plaintiff cannot establish 

liability on his contract claim, the Court need not consider whether a claim for money had 

and received constitutes a claim based on an implied contract for purposes of Section 8-8-

8.

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