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 the defendants’ motion to certify a 

question of law to the Alabama Supreme Court. (Doc. 44). The plaintiff has filed 

a response and the defendants a reply, (Docs. 46, 47), and the motion is ripe for 

resolution. After careful consideration, the Court concludes the motion is due to 

be denied.

BACKGROUND

According to the amended complaint, (Doc. 17), Federal National 

Mortgage Association (“Fannie Mae”) owned the mortgage loan on the plaintiff’s 

residence. 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 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 

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note automatically reverted to Fannie Mae after the sale; despite temporarily 

parting with possession, Fannie Mae at all times remained 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 $122,000 more than the plaintiff’s 

indebtedness. The plaintiff brought suit under Alabama law, seeking to recover 

this excess.

The defendants removed the action from state court on the basis of 

diversity. (Doc. 1). They then moved to dismiss, raising as one ground that 

Alabama law imposes no duty on a mortgagee to pay to its mortgagor any excess 

over the indebtedness which the mortgagee receives on resale of the foreclosed 

property within the redemption period. (Doc. 18 at 6-7). The Court denied the 

motion to dismiss. (Doc. 34). Alabama law requires a mortgagee that purchases 

mortgaged property at foreclosure, and that then resells the property to a third 

party during the redemption period for more than it bid, to apply the excess to 

reduce the mortgagor’s debt. Springer v. Baldwin County Federal Savings Bank, 

562 So. 2d 138, 139 (Ala. 1089). Alabama law also requires a mortgagee that 

receives more than the amount of indebtedness at a foreclosure sale to deliver the 

excess to the mortgagor. Davis v. Huntsville Production Credit Association, 481 

So. 2d 1103, 1106 (Ala. 1985). Especially because both results derive from the 

mortgagee’s status as “trustee” for the mortgagor, Springer, 562 So. 2d at 139, 

140, the Court concluded that the Alabama Supreme Court would overlay 

Springer with Davis and require a mortgagee to deliver to its mortgagor the excess 

over indebtedness received at a resale within the redemption period.

DISCUSSION

Alabama procedure permits a federal court to certify to the Alabama 

Supreme Court questions of state law “which are determinative of said cause and 

[as to which] there are no clear and controlling precedents” from the Supreme 

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Court. Ala. R. App. P. 18(a). The defendants, having lost their motion to dismiss, 

now propose that the Court certify the following question: “Is a mortgagee, upon 

a profitable sale to a third party within the statutory redemption period, required to 

remit to the mortgagor amounts in excess of the mortgage debt?” (Doc. 44 at 3).

“The decision whether to certify a question of state law to a state supreme 

court is committed to this court’s discretion ....” Smigiel v. Aetna Casualty & 

Surety Co., 785 F.2d 922, 924 (11th Cir. 1986). “In determining whether to 

exercise our discretion in favor of certification, we consider many factors.” State 

of Florida ex rel. Shevin v. Exxon Corp., 526 F.2d 266, 274 (5th Cir. 1976). “The 

most important are the closeness of the question and the existence of sufficient 

sources of state law – statutes, judicial decisions, attorney general’s opinions – to 

allow a principled rather than conjectural conclusion.” Id. at 275. “But also to be 

considered is the degree to which considerations of comity are relevant in light of 

the particular issue and case to be decided,” which includes “the likelihood of the 

recurrence of the particular legal issue.” Id. & n.29. “And we must also take into

account practical limitations of the certification process: significant delay and 

possible inability to frame the issue so as to produce a helpful response on the part 

of the state court.” Id. at 275.1

Other factors merit consideration as well. Because Rule 18(a) limits 

certification to questions that are “determinative of said cause,” certification is 

inappropriate if the question “would not be dispositive.” Harrison v. Jones, 880 

F.2d 1279, 1283 n.4 (11th Cir. 1989). It must also be remembered that “state 

courts, like their federal counterparts, are busy institutions, with their own 

caseloads to manage,” Escareno v. Noltina Crucible and Refractory Corp., 139 

F.3d 1456, 1461 (11th Cir. 1998), and unnecessary certified questions – whether 

accepted or declined by the state court – can burden an already heavily loaded 

state system. Finally, “[i]n addition to the usual considerations,” a federal court 

 1 The Eleventh Circuit continues to employ these factors. Royal Capital 

Development, LLC v. Maryland Casualty Co., 659 F.3d 1050, 1054 (11th Cir. 2014). 

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should consider “an amazing irony[:] [the defendants], which now pra[y] for an 

opinion from a[n] [Alabama] court, ... remove[d] the case from the jurisdiction of 

the state courts.” Smigiel, 785 F.2d at 924.

The bottom line is that “federal litigants have no right to insist upon 

certification,” even as to “difficult or uncertain questions of state law,” and the 

federal courts “will continue to exercise discretion and restraint in deciding to 

certify questions to state courts.” Escareno, 139 F.3d at 1461. 

The defendants address none of these concerns. Instead, after having

chosen to abandon a state forum, and after having chosen to pursue a motion to 

dismiss rather than a motion for certification, they now seek effectively to return 

to state court in an effort to undo the unfavorable ruling they themselves solicited, 

based on nothing more than the mere fact the certification procedure exists and, 

they feel, could result in a more favorable ruling. (Doc. 44 at 1-2). 

The threshold problem with certification is that the question the defendants 

pose is not “determinative of the cause,” as required by Rule 18(a). The 

defendants deny that Fannie Mae was the “mortgagee” for purposes of the rules 

expressed in Springer and Davis, because it had assigned the mortgage to Wells 

Fargo. (Doc. 18 at 7-11). The Court rejected this argument as unsupported, (Doc. 

34 at 5), but the defendants insist they have “not abandon[ed]” it. (Doc. 44 at 2). 

Thus, while the certified question would be determinative of the action were it 

answered favorably to the defendants (i.e., the defendants would win the lawsuit), 

it would not be determinative of the action were it answered favorably to the 

plaintiff (i.e., the defendants could still win the lawsuit). When, as here, the 

proposed certified question addresses only “one of two alternative theories of 

defense,” it is not “determinative of the outcome of the case,” and certification is 

properly denied. First Alabama Bank v. Aetna Insurance Co., 607 F.2d 676, 680 

(5th Cir. 1979). 

Nor is the Court persuaded that the question presented is so close, and the 

existing sources of state law so unsatisfactory, as to render the Court’s ruling 

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“conjectural” rather than “principled.” Shevin, 526 F.2d at 275. Springer and 

other cases point directly to the conclusion reached by the Court,2 and it is the 

defendants’ vague reliance on “public policy” and a “clear balance” of rights and 

duties, (Doc. 18 at 16-19), that appears conjectural – especially given that the

Alabama Supreme Court presumably has already taken such considerations into 

account in saddling mortgagees with the duties of a “trustee” in connection with 

excess receipts from foreclosure sales and post-foreclosure resales. As in Jennings 

v. BIC Corp., 181 F.3d 1250 (11th Cir. 1999), “existing [Alabama] law provides 

substantial confidence in how the [Alabama] Supreme Court would rule on the 

question.” Id. at 1254 n.2. Thus, “[w]e do not consider certification appropriate 

in this case.” Id.

The remaining factors are of lesser significance and do not appreciably 

counsel in favor of certification in any event. The delay inherent in certification, 

and the unnecessary imposition on a busy state court, of course weigh against 

certification. No particular comity issue is evident; the factual scenario giving rise 

to the request for certification could conceivably arise again, but the “likelihood of 

recurrence” to which the Shevin Court referred focuses on “ordinary, repetitive” 

questions “involving literally hundreds” of recurring instances. See Barnes v. 

Atlantic & Pacific Life Insurance Co. of America, 514 F.2d 704, 706 (5th Cir. 

1975) (cited by Shevin, 526 F.2d at 275 n.29). It appears the defendants have 

framed the issue in a manner that would produce a helpful response, but that by 

itself falls far short of justifying certification.

 2 The defendants pounce upon the Court’s statement that “‘Springer leaves that 

question open.’” (Doc. 47 at 2 (quoting Doc. 34 at 3)). This language does not, as the 

defendants assume, mean the Court believes that “Springer does not provide a clear 

answer to the question presented.” Doc. 47 at 2). All it means is that the holding of 

Springer does not of itself answer the question; as discussed in the Court’s order, 

however, Springer (reinforced by Davis and other cases) leads directly to the conclusion 

reached by the Court. 

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CONCLUSION

For the reasons set forth above, the motion to certify is denied.

3

DONE and ORDERED this 7th day of October, 2015.

s/ WILLIAM H. STEELE

CHIEF UNITED STATES DISTRICT JUDGE

 3 The defendants suggest that this battle is not yet over and that they intend to reargue, on motion for summary judgment and at trial, that a mortgagee has no duty to 

remit to its mortgagor the excess over indebtedness received upon resale within the 

redemption period. (Doc. 47 at 1). The Court cannot prohibit the defendants from 

beating this dead horse, but any such effort would in substance constitute a motion to 

reconsider the Court’s ruling on motion to dismiss, and the legal grounds for entertaining 

such an effort are exceedingly narrow. E.g., Dunavant v. Sirote and Permutt, P.C., 2014 

WL 2885483 at *3 (S.D. Ala. 2014).

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