Debbie Berry v. PHH Mortgage Corporation

Summary

The Supreme Court of Alabama affirmed summary judgment for PHH Mortgage Corporation on its ejectment claim and Debbie Berry's breach-of-contract counterclaim. The court held that Berry waived most appellate arguments by failing to address the effect of a settlement release involving PHH's predecessor, Ocwen Loan Servicing, LLC. The court also held that PHH presented admissible evidence of notice of the foreclosure sale and that Berry was not entitled to a Rule 59(e) hearing because she did not request one.

Holdings

1. When an appellee presents in its brief an alternative basis for affirmance that was not relied on by the trial court, the appellant waives arguments against that basis by failing to address it in the reply brief. Berry therefore waived her ejectment defenses concerning PHH's ownership of the note and mortgage, HUD loss-mitigation compliance, and notices of default and acceleration.
2. Berry failed to demonstrate that PHH lacked admissible evidence that it provided proper notice of the foreclosure sale because the iMailTracking employee's affidavit established personal knowledge and competency and attached records showing that the notice was sent.
3. When the trial court's order does not specify its basis and the appellee identifies a dispositive issue that was presented below, the appellant waives a challenge to that issue by omitting any argument concerning it from the principal brief. Berry therefore waived her argument that the settlement release did not preclude her HUD-requirements claim.
4. The hearing requirement in Rule 59(g), Ala. R. Civ. P., is not self-effectuating; a movant must request a hearing for the requirement to apply. Because Berry did not request a hearing, the circuit court did not err by ruling on her Rule 59(e) motion without one.

Questions Presented

1. Whether Berry waived arguments challenging PHH's ejectment judgment by failing to address in her reply brief the settlement release that PHH offered as an alternative basis for affirmance.
2. Whether Berry demonstrated that PHH lacked admissible evidence that it provided proper notice of the foreclosure sale.
3. Whether Berry waived her challenge to summary judgment on her breach-of-contract counterclaim by failing to address the settlement release's preclusive effect on her HUD loss-mitigation argument.
4. Whether the circuit court was required to hold a hearing before ruling on Berry's Rule 59(e) motion when Berry had not requested a hearing.

Disposition

affirmed