Carter-Washington v. Wilmington Trust, National Association

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ANGELA CARTER-WASHINGTON, )

)

Plaintiff, )

)

v. ) Case No. 2:23-cv-00236-SGC

)

WILMINGTON TRUST, NATIONAL )

ASSOCIATION, et al., )

)

Defendants. )

MEMORANDUM OPINION1

The plaintiff, Angela Carter-Washington, asserts three state law claims and

one federal claim against the defendants, Wilmington Trust, National Association,

solely as trustee of MFRA Trust 2014-2 (“Wilmington”), and Fay Servicing, LLC

(“Fay”), in this action premised on federal question and supplemental jurisdiction.

(Doc. 1; Doc. 13).2 The case is before the court on the defendants’ motion for

summary judgment. (Doc. 20). The parties have briefed the motion fully, and it is

ripe for review. (Docs. 24, 26, 36). For the reasons stated below, the court will grant

1 The parties have consented to the exercise of dispositive jurisdiction by a magistrate judge

pursuant to 28 U.S.C. § 636(c). (Doc. 3).

2 Citations to the record refer either to the document and page numbers assigned by the court’s

CM/ECF electronic document system or to the CM/ECF-assigned document number and the

paragraph number assigned by the drafter of the document. Citations of the former type appear in

the following format: (Doc. __ at __). Citations of the latter type appear in the following format:

(Doc. __ at ¶ __).

the motion in part and deny it in part.

I. Standard of Review

Under Rule 56 of the FEDERAL RULES OF CIVIL PROCEDURE, “[t]he [district]

court shall grant summary judgment if the movant shows that 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The party

seeking summary judgment bears the initial burden of informing the district court of

the basis for its motion and identifying those portions of the record the party believes

demonstrate the absence of a genuine dispute of material fact. Celotex Corp., 477

U.S. at 323. If the moving party carries its initial burden, the non-movant must go

beyond the pleadings and come forward with evidence showing there is a genuine

dispute of material fact for trial. Id. at 324.

The substantive law identifies which facts are material and which are

irrelevant. Anderson, 477 U.S. at 248. A dispute is genuine if the evidence is such

that a reasonable jury could return a verdict for the non-movant. Id. at 248. If the

evidence is merely colorable or not significantly probative, summary judgment is

appropriate. Id. at 249-50 (internal citations omitted). All reasonable doubts about

the facts should be resolved in favor of the non-movant, and all justifiable inferences

should be drawn in the non-movant’s favor. Fitzpatrick v. City of Atlanta, 2 F.3d

1112, 1115 (11th Cir. 1993).

II. Summary Judgment Facts3,4,5

Carter-Washington obtained a loan to purchase a house in Birmingham,

Alabama in September 2006. (See Doc. 21-2). She executed a note promising to

repay the loan. (Doc. 21-2). She also executed a mortgage for the house to secure

the note. (Doc. 21-3). The court refers to the note and mortgage collectively as the

“loan” and the house pledged as collateral as the “property.” The loan ultimately

came to rest in the hands of Wilmington. (Docs. 21-4, 21-5, 21-6). Fay serviced the

loan for Wilmington. (Doc. 21-1 at ¶ 1).

The loan required Carter-Washington to make monthly payments of principal

and interest and provided that if she failed to do so the lender could require

3 The following facts are undisputed, unless otherwise noted. The court views the facts in the light

most favorable to Carter-Washington, as the non-movant, and gives Carter-Washington the benefit

of all reasonable inferences.

4 The court does not credit as facts assertions made by counsel in a brief that are not accompanied

by evidentiary support. Assertions made by counsel in a brief are not evidence. Skyline Corp. v.

N.L.R.B., 613 F.2d 1328, 1337 (5th Cir. 1980). Decisions of the former Fifth Circuit rendered

prior to the close of business on September 30, 1981, are binding in the Eleventh Circuit. Bonner

v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981).

5 The defendants object to the admissibility on summary judgment of portions of the evidentiary

submission made by Carter-Washington. (Doc. 37). The court declines to address the substance

of the objections. The defendants are entitled to summary judgment in their favor on all but one

of Carter-Washington’s claims, even if the court considers the challenged evidence, and the

challenged evidence plays no part in the court’s conclusion the defendants are not entitled to

summary judgment in their favor on the one surviving claim.

immediate payment of all outstanding principal and interest and foreclose on the

property. (Doc. 21-2 at ¶ 3; Doc. 21-3 at ¶ 14). Requiring immediate payment of

all outstanding principal and interest is called “acceleration” of a loan. See

Acceleration, BLACK’S LAW DICTIONARY (12th ed. 2024). A prerequisite to

acceleration and foreclosure was that the lender “give notice to [Carter-

Washington]” specifying the default, giving Carter-Washington an opportunity to

cure the default, and notifying Carter-Washington that failure to cure the default

could result in acceleration and foreclosure. (Doc. 21-3 at ¶ 22). The loan articulated

notice would be deemed “given to [Carter-Washington] when mailed by first class

mail or when actually delivered to [Carter-Washington’s] notice address,” identified

as the address of the property. (Doc. 21-3 at ¶ 15). Finally, as relevant here, the

loan provided that “[i]f the default [specified in the notice of default] [was] not cured

on or before the date specified in the notice, [the lender] at its option [could] require

immediate payment in full of all [outstanding principal and interest] without further

demand and [could] invoke the power of sale and any other remedies permitted by

[a]pplicable law.” (Doc. 21-3 at ¶ 22).

Carter-Washington began having trouble making monthly payments at some

point. (Doc. 26-1 at ¶ 3). She entered into a loan modification agreement with

Wilmington in October 2017. (Doc. 21-7). The agreement reduced the amount of

Carter-Washington’s monthly payments. (Doc. 21-7 at ¶¶ 2-3). After Carter-

Washington failed to make all required modified monthly payments, the defendants

sent a letter to the property address dated April 7, 2020, informing Carter-

Washington the loan was in default and that, unless she cured the default, the loan

could be accelerated and the property foreclosed on. (Doc. 21-8). The court refers

to this letter as the “notice of default” or the “default notice.” The defendants

maintained communication with Carter-Washington for the next ten months and

attempted to work with her to avoid acceleration and foreclosure. (Docs. 21-9 – 21-

15).

Then, on February 7, 2021, Carter-Washington filed a bankruptcy petition.

(Doc. 21-17 at 2). The bankruptcy court dismissed the petition on February 24,

2022, because Carter-Washington failed to make required payments under her

bankruptcy plan. (Doc. 21-1 at ¶ 11; Doc. 21-17 at 5).6 Carter-Washington filed a

second bankruptcy petition on June 7, 2022. (Doc. 22-1 at 2). The bankruptcy court

dismissed the second petition on August 25, 2022, again because Carter-Washington

failed to make required plan payments. (Doc. 21-1 at ¶ 12; Doc. 22-1 at 4).

Fay then commenced foreclosure proceedings and scheduled a foreclosure

sale for October 12, 2022. (Doc. 21-1 at ¶ 13). On October 11, 2022, the day before

6 Carter-Washington filed the February 7, 2021 and subsequent petitions under chapter 13 of the

Bankruptcy Code, which allows individuals with regular income to develop a plan for repayment

of adjusted debts subject to confirmation by the bankruptcy court. See In re Brown, 742 F.3d 1309,

1314 (11th Cir. 2014); In re Guillen, 972 F.3d 1221, 1229 (11th Cir. 2020).

the foreclosure sale, Carter-Washington filed a third bankruptcy petition. (Doc. 22-

3 at 2). As a general rule, the filing of a bankruptcy petition imposes an automatic

stay of “various acts that are attempts to enforce prepetition claims or that would

otherwise affect or interfere with property of the estate or debtor.” In re Jacks, 642

F.3d 1323, 1328 (11th Cir. 2011) (citing 11 U.S.C. § 362(a)). However, the general

rule is subject to exceptions. In re Jean, 508 F. App’x 939, 940 (11th Cir. 2013)

(citing 11 U.S.C. § 362(c)). One such exception is when a debtor has had two

petitions dismissed within a one-year period preceding the filing of a third petition.

Id. (citing 11 U.S.C. § 362(c)(4)(A)). Because the bankruptcy petitions Carter-

Washington filed on February 7, 2021, and June 7, 2022, were dismissed on

February 24, 2022, and August 25, 2022, respectively, the bankruptcy petition

Carter-Washington filed on October 11, 2022, did not trigger imposition of the

automatic stay.7 The foreclosure sale occurred as planned on October 12, 2022.

(Doc. 21-1 at ¶ 16).8 Wilmington purchased the property as the highest bidder.

(Doc. 21-1 at ¶ 16).

On October 13, 2022, Carter-Washington’s attorney received an e-mail from

7 This is more a legal conclusion than a statement of fact, but the court includes it here because

Carter-Washington does not challenge the conclusion or the propriety of the foreclosure sale that

occurred on October 12, 2022, and because the conclusion serves a narrative purpose.

8 Both Carter-Washington and her attorney were aware her third bankruptcy petition would not

trigger the automatic stay and might not stop the foreclosure sale. (Doc. 26-1 at ¶ 13; Doc. 26-2

at ¶ 9).

an attorney involved in the foreclosure sale on behalf of the defendants. (Doc. 30 at

2). The foreclosure attorney was responding to attempts made by Carter-

Washington’s attorney to communicate with her before the foreclosure sale

occurred. (See Doc. 26-2 at ¶¶ 10-11). The foreclosure attorney informed Carter-

Washington’s attorney the foreclosure sale had occurred on October 12, 2022,

because the third bankruptcy petition Carter-Washington filed on October 11, 2022,

did not result in imposition of the automatic stay because her two prior petitions had

been dismissed within the preceding year and Carter-Washington had not moved the

bankruptcy court to impose a stay. (Doc. 30 at 2). Although a debtor who has had

two bankruptcy petitions dismissed within a one-year period preceding the filing of

a third petition does not enjoy the protection of the automatic stay, she can move the

bankruptcy court to impose a stay. In re Cook, 614 B.R. 635, 641 (N.D. Ga. 2020)

(citing 11 U.S.C. § 362(c)(4)(B)). The foreclosure attorney stated that the

defendants likely would file a motion seeking relief from any stay imposed in Carter-

Washington’s bankruptcy case and an objection to confirmation of her bankruptcy

plan. (Doc. 30 at 2).

On October 19, 2022, Carter-Washington moved the bankruptcy court to

impose a stay. (Doc. 23-3). The bankruptcy court entered an order granting the

motion at approximately 3:00 P.M. on November 3, 2022. (Doc. 23-4). The

bankruptcy court initially imposed the stay through December 15, 2022, and later

extended the stay through 12:00 P.M. on December 16, 2022. (Docs. 23-4; 23-7).

The bankruptcy court dismissed the third petition on December 20, 2022, again

because Carter-Washington failed to make required plan payments. (Doc. 22-3 at

3).

The loan permitted the lender or its agent to “make reasonable entries upon

and inspections of the [p]roperty.” (Doc. 21-3 at ¶ 7). A representative of the

defendants declares the property was inspected on September 12, 2022; October 18,

2022; November 3, 2022; December 5, 2022; and December 19, 2022. (Doc. 21-1

at ¶¶ 14, 17, 19, 20, 22).9 He denies any personal belongings were removed from

the property on November 3, 2022, or December 5, 2022, when the court-imposed

stay was in effect. (Doc. 21-1 at ¶¶ 19, 20). He declares cleaning of the property

began on December 19, 2022, after the stay had expired, and was completed on

January 3, 2023. (Doc. 21-1 at ¶ 22). Cleaning was required, according to the

representative, because the property was vacant and in a state of disrepair. (Doc. 21-

1 at ¶ 17). Inspection reports, which include photographs of the property, support

this characterization. (Docs. 22-2; 23-1; 23-2; 23-5; 23-6; 23-8).

9 An affidavit is a sworn statement, meaning it is made under oath before a notary or other oath-

taker and affixed with a notary seal. Roy v. Ivy, 53 F.4th 1338, 1347 (11th Cir. 2022). An unsworn

declaration may serve as a substitute for an affidavit for summary judgment purposes if the

declaration concludes with the statement “I declare under penalty of perjury that the foregoing is

true and correct,” or a substantially similar statement, and the declaration is signed and dated by

the declarant. § 1746(2); Roy, 53 F.4th at 1347-48. The declaration made by the defendants’

representative complies with the requirements of § 1746(2).

Carter-Washington concedes the property was “severely damaged” but

declares she and her husband, mother, and son lived in the house. (Doc. 26-1 at ¶¶

6-7).10 She further declares she found two people removing personal belongings

from the property on October 28, 2022. (Doc. 26-1 at ¶¶ 16-17). She has produced

an e-mail sent to her attorney on November 3, 2022, the same day the bankruptcy

court entered the order granting her motion seeking imposition of a stay, by a real

estate agent acting on the defendants’ behalf, stating the defendants had directed that

the “trash out” be completed. (Doc. 31 at 3). The e-mail is time-stamped 12:18

P.M., more than two hours before entry of the order imposing the stay. (Compare

Doc. 31 at 1, with Doc. 23-4). Included in the defendants’ evidentiary submission

is a list of personal belongings Carter-Washington contends the defendants (or their

agents) removed from the property, including furniture, appliances, collectibles, art,

jewelry, “priceless” coins, electronics, mink coats, and luxury handbags. (Doc. 23-

12).

Carter-Washington commenced this action in the Circuit Court of Jefferson

County, Alabama, on January 9, 2023. (Doc. 1-1). The defendants then removed

the case to this district court. (Doc. 1). The amended complaint, filed by Carter-

Washington on November 8, 2023, is the operative pleading. (Doc. 13). Carter-

Washington asserts four claims in the amended complaint. She asserts a breach of

10 Carter-Washington’s declaration complies with the requirements of § 1746(2).

contract claim based on the allegation she did not receive the notice contemplated

by the loan as a prerequisite to acceleration and foreclosure. (Doc. 13 at ¶¶ 20-28).

She claims the defendants violated § 6-6-280 of the Alabama Code by entering the

property, removing her personal belongings, and changing the locks without

commencing an ejectment action against her. (Doc. 13 at ¶¶ 39-44). She claims the

defendants violated the court-imposed stay by entering the property and removing

personal belongings that were part of her bankruptcy estate during the pendency of

the stay. (Doc. 13 at ¶¶ 45-51). Finally, she asserts a claim for invasion of privacy.

(Doc. 13 at ¶¶ 56-59). In her response to the defendants’ motion for summary

judgment, she argues the defendants invaded her privacy by inspecting the property

and removing her personal belongings. (Doc. 26 at 15-17).

III. Discussion

A. Breach of Contract Claim

The elements of a claim for breach of contract under Alabama law are (1) the

existence of a valid contract, (2) the plaintiff’s performance under the contract, (3)

the defendant’s nonperformance, and (4) damages resulting from that

nonperformance. Dupree v. PeoplesSouth Bank, 308 So. 3d 484, 490 (Ala. 2020).

Carter-Washington’s breach of contract claim fails on the second and third

elements.11

Carter-Washington did not make the monthly payments required under the

loan, the contract at issue. (Doc. 26-1 at ¶ 3). Therefore, she cannot demonstrate

her own performance under that contract. See, e.g., Tidmore v. Citizens Bank & Tr.,

250 So. 3d 577, 590-91 (Ala. Civ. App. 2017) (holding counter-plaintiff’s failure to

make required mortgage loan payments precluded him from maintaining

counterclaim for breach of mortgage agreement); Fed. Home Loan Mort. Corp. v.

Capps, 2019 WL 1028008, at *8 (N.D. Ala. 2019) (same).

Moreover, Carter-Washington has not shown the defendants failed to perform

under the loan.12 The failure of performance alleged by Carter-Washington is the

fact that she did not receive the notice contemplated by the loan as a prerequisite to

acceleration and foreclosure. (Doc. 13 at ¶¶ 20-28). However, the loan did not

require that Carter-Washington receive the notice. It required that the lender “give

[the] notice to [Carter-Washington]” and further provided that a notice was deemed

11 The defendants argue Carter-Washington’s breach of contract claim fails for reasons in addition

to those discussed below. The court declines to address those arguments, or Carter-Washington’s

responsive arguments, given the strength of the reasons for failure of the claim that the court does

discuss.

12 Carter-Washington asserts for the first time in her response to the defendants’ summary

judgment motion that the defendants have never offered proof of publication of the foreclosure

sale, as required by § 35-10-13 of the Alabama Code. (Doc. 26 at 8). Although the court strains

to understand the relevance of this assertion to Carter-Washington’s breach of contract claim, the

court notes the defendants attached to their reply the proof of publication questioned by Carter-

Washington. (Doc. 36-1).

“given to [Carter-Washington] when mailed by first class mail or when actually

delivered to [Carter-Washington’s] notice address,” identified as the address of the

property. (Doc. 21-3 at ¶¶ 15, 22). The defendants mailed the notice of default to

the property address on or about April 7, 2020, before acceleration of the loan and

commencement of foreclosure proceedings. (Doc. 21-8). Therefore, the defendants

complied with the requirements of the loan. See, e.g., Harris v. Deutsche Bank Nat.

Tr. Co., 141 So. 3d 482, 489 (Ala. 2013) (holding evidence that notice of default and

possible acceleration was mailed to notice address was sufficient to demonstrate

compliance with paragraph of mortgage agreement substantially similar to

paragraph at issue here); Coleman v. BAC Servicing, 104 So. 3d 195, 205 (Ala. Civ.

App. 2012) (holding the same, even though mortgagor denied receiving notice);

Perry v. Fed. Nat’l Mortg. Ass’n, 100 So. 3d 1090, 1097-98 (Ala. Civ. App. 2012)

(same).

Carter-Washington also contends that, given the lapse of time between the

date of the default notice (April 7, 2020) and the date of the foreclosure sale (October

12, 2022) and the fact that the defendants continued to work with her to avoid

acceleration and foreclosure during that period, the defendants were required to issue

a new notice of default before acceleration and foreclosure occurred. (Doc. 26 at 9).

Carter-Washington cites no authority to support her contention, and the plain

language of the loan refutes it. The loan provided that “[i]f the default [specified in

the notice of default] [was] not cured on or before the date specified in the notice,

[the lender] at its option [could] require immediate payment in full of all [outstanding

principal and interest] without further demand and [could] invoke the power of sale

and any other remedies permitted by [a]pplicable law.” (Doc. 21-3 at ¶ 22). The

phrase “without further demand” indicates that, once a notice of default was given

and the default remained uncured, no additional notice was required before

acceleration and foreclosure occurred. This interpretation is consistent with the

Eleventh Circuit’s interpretation of substantially similar language. See Broughton

v. Suntrust Mortg., Inc., 571 F. App’x 891, 892 (11th Cir. 2014) (holding the

language refuted argument lender was required to re-accelerate mortgage loan by

subsequent notice after withdrawing foreclosure proceedings).

Finally, Carter-Washington asserts the e-mail sent to her attorney by the

foreclosure attorney stating the defendants likely would file a motion seeking relief

from any stay imposed in her bankruptcy case and an objection to confirmation of

her bankruptcy plan led her to believe she could assert her defenses to foreclosure

when the defendants made those filings. (Doc. 26 at 10). Carter-Washington has

not explained the relevance of this assertion to the breach of contract claim presented

in her amended complaint. The court discerns none and has no obligation to tease

out the possibilities.13 Insofar as Carter-Washington makes the assertion in

furtherance of a claim the defendants breached an agreement, independent of the

loan and embodied in the foreclosure attorney’s statement, to halt efforts to take

possession of the foreclosed property, the claim fails because Carter-Washington did

not present it in her amended complaint. See Gilmour v. Gates, McDonald and Co.,

382 F.3d 1312, 1315 (11th Cir. 2004) (holding a plaintiff cannot raise a new claim

at the summary judgment stage through argument made in a responsive brief).

B. Ala. Code § 6-6-280 Claim

Section 6-6-280 gives a person or entity with legal title to a property the right

to sue for ejectment when another person unlawfully remains on the property. See

§ 6-6-280. It is a mechanism that may be used by a purchaser of foreclosed property

to force the former owner – the person whose property was foreclosed on – to

surrender possession of the property. See, e.g., Powers v. Chadwell Homes, LLC,

2024 WL 4246639, at *1-2 (Ala. Sept. 20, 2024); Brewer v. Fairchild, 2024 WL

13 See Resol. Tr. Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (“There is no burden

upon the district court to distill every potential argument that could be made based upon the

materials before it on summary judgment. Rather the onus is upon the parties to formulate

arguments.”) (internal citation omitted); Haasbroek v. Princess Cruise Lines, Ltd., 286 F. Supp.

3d 1352, 1357 n.4 (S.D. Fla. 2017) (“[A] party who aspires to oppose a motion must spell out his

arguments squarely and distinctly, or else forever hold his peace.”) (internal quotation marks

omitted and alteration adopted); Vision Bank v. Merritt, 2010 WL 5474161, at *4 (S.D. Ala. Dec.

8, 2010) (“If [the defendant] wishes to pursue [] a legal theory, it is incumbent on him to perform

the necessary research and develop that argument, rather than stating it in the vaguest of outlines

and expecting [the] [c]ourt to fill in the gaps.”); Fed. Ins. Co. v. Cnty. of Westchester, 921 F. Supp.

1136, 1139 (S.D.N.Y. 1996) (“Under the adversary system, it is counsel’s responsibility to explain

why [] points have legal merit; the [c]ourt does not serve as counsel’s law clerk.”).

4246653, at *1 (Ala. Sept. 20, 2024); Steele v. Fed. Nat’l Mortg. Ass’n, 69 So. 3d

89, 90 (Ala. 2010); Pittman v. Regions Bank, 226 So. 3d 193, 194-95 (Ala. Civ. App.

2016). Neither the text of § 6-6-280 nor a thorough search of relevant case law

suggests a former owner of foreclosed property can use the statute to bring a claim

against the purchaser of the property for failing to sue for ejectment of the former

owner after the foreclosure sale and before taking possession of the property and

removing personal belongings.

C. Claim for Violations of Court-Imposed Stay

A debtor may recover actual damages for injuries caused by a willful violation

of a bankruptcy stay. Lodge v. Kondaur Cap. Corp., 750 F.3d 1263, 1268 (11th Cir.

2014) (citing 11 U.S.C. § 362(k)). “A willful violation of [a] [] stay does not require

a specific intent to violate the [] stay. A willful violation simply requires knowledge

of the [] stay and an intent to perform the actions which violated the [] stay.” Credit

Nation Lending Servs., LLC v. Nettles, 489 B.R. 239, 247 (N.D. Ala. 2013) (internal

quotation marks and citations omitted). The Eleventh Circuit has held district courts

have jurisdiction to hear claims for violations of a bankruptcy stay. See Justice

Cometh, Ltd. v. Lambert, 426 F.3d 1342, 1343 (11th Cir. 2005).

As discussed above, a stay did not come into effect relative to the bankruptcy

estate created by Carter-Washington’s third bankruptcy petition until the bankruptcy

court granted Carter-Washington’s motion seeking imposition of a stay on

November 3, 2022. (See Doc. 23-4). It continued in effect until 12:00 P.M. on

December 16, 2022. (See Doc. 23-7). Carter-Washington has come forward with

three pieces of evidence she argues show the defendants violated the court-imposed

stay.

The first is her declaration she found two people removing personal

belongings from the property on October 28, 2022. (Doc. 26-1 at ¶¶ 16-17). That

testimony does not show a violation of the court-imposed stay because the stay was

not yet in effect on October 28, 2022. The second is the e-mail the defendants’ real

estate agent sent to Carter-Washington’s attorney on November 3, 2022, stating the

defendants had directed that the “trash out” be completed. (Doc. 31 at 3). That

expression of intent made more than two hours before imposition of the stay is not

significantly probative, especially in view of the declaration made by the defendants’

representative that no personal belongings were removed from the property on

November 3, 2022, and cleaning of the property did not begin until December 19,

2022, after expiration of the stay. See Anderson, 477 U.S. at 249-50 (explaining

evidence that is merely colorful or not significantly probative will not defeat

summary judgment).

The third is the inspection of the property conducted on behalf of the

defendants on December 5, 2022. (Doc. 26 at 15). There is no dispute the inspection

occurred on December 5, 2022, or that the court-imposed stay was in effect at that

time. However, a property inspection does not violate a bankruptcy stay absent

evidence the inspection was conducted to harass the debtor or coerce her to pay the

debt owed. See, e.g., In re Kennedy, 2023 WL 3011246, at *5 (Bankr. N.D. Ga. Apr.

19, 2023) (collecting cases); In re Golden, 568 B.R. 838, 841 (Bankr. M.D. Ala.

2017). There is no evidence the December 5, 2022 inspection was conducted to

harass Carter-Washington or coerce her to pay a debt.

D. Invasion of Privacy Claim

The invasion-of-privacy tort consists of four distinct wrongs, each with

distinct elements. Flickinger v. King, 385 So. 3d 504, 517 (Ala. 2023). Carter-

Washington proceeds under the “wrongful intrusion” prong of the tort. This prong

of the tort, “insofar as it applies to actions of a creditor in regard to his debtor, is the

wrongful intrusion into one’s private activities in such manner as to outrage or cause

mental suffering, shame[,] or humiliation to a person of ordinary sensibilities.”

Liberty Loan Corp. of Gadsden v. Mizell, 410 So. 2d 45, 47 (Ala. 1982).

Carter-Washington contends the defendants invaded her privacy by inspecting

the property and removing her personal belongings. (Doc. 26 at 15-17). “A

wrongful intrusion may be by physical intrusion into a place where the plaintiff has

secluded himself, including, of course, the plaintiff’s home.” Johnson v. Stewart,

854 So. 2d 544, 548 (Ala. 2002) (internal quotation marks omitted and alteration

adopted). Here, however, neither the entries onto nor the inspections of the property

were wrongful intrusions. The loan gave the defendants the right to “make

reasonable entries upon and inspections of the [p]roperty.” (Doc. 21-3 at ¶ 7). After

the loan went into default, it was reasonable for the defendants to enter onto and

inspect the property, given the property was the collateral securing the debt Carter-

Washington owed. See Marques v. JP Morgan Chase N.A., 2017 WL 11358416, at

*11 (N.D. Ga. Jan. 17, 2017) (holding property inspections conducted by holder of

security deed were not invasions of privacy under Georgia law because security deed

permitted deed holder to conduct property inspections), report and recommendation

adopted, 2017 WL 11358742 (N.D. Ga. Mar. 9, 2017). Moreover, there is no

evidence the entries or inspections were conducted in a harassing way. See Deutsche

Bank Tr. Co. Americas v. Garst, 989 F. Supp. 2d 1194, 1206 (N.D. Ala. 2013)

(explaining “[p]ast cases have only recognized intrusion [] in the mortgage servicing

context for hounding the plaintiff, with repeated conduct equating deliberate

harassment or systematic campaigns designed to vilify the debtor or expose him to

public ridicule.”) (internal quotation marks and citation omitted and alteration

adopted).

The court cannot reach the same conclusion with respect to the defendants’

alleged removal of personal belongings from the property. The court begins by

noting the defendants confine their denial they removed personal belongings from

the property to two discrete dates: November 3, 2022, and December 5, 2022. (See

generally Doc. 21-1). That is to say they do not deny they ever removed personal

belongings from the property but, rather, just that they removed personal belongings

from the property on November 3, 2022, or December 5, 2022. Moreover, Carter-

Washington affirmatively declares she found two people removing personal

belongings from the property on October 28, 2022, and has provided an itemized list

of her missing personal belongings. (Doc. 23-12; Doc. 26-1 at ¶¶ 16-17).

The defendants assert they had the right to remove Carter-Washington’s

personal belongings from the property before imposition and after expiration of the

court-imposed stay, but the assertion is unaccompanied by citation to a provision of

the loan that allowed removal or other legal grounds for the seizures. (Doc. 36 at

12). The defendants also note in the context of their argument regarding Carter-

Washington’s invasion of privacy claim that, after purchasing the property at the

foreclosure sale, Wilmington was entitled to immediate possession of the property.

(Doc. 36 at 12). The court agrees the purchaser of real property at a foreclosure sale

is entitled to immediate possession of the property. See Palmer v. Resol. Tr. Corp.,

613 So. 2d 373, 375 (Ala. 1993). However, the basic legal distinction between real

property and personal property requires the conclusion that a foreclosure purchaser’s

entitlement to immediate possession of real property does not extend to personal

property contained within the real property.

Because there is evidence the defendants removed Carter-Washington’s

personal belongings from the property and the defendants have not identified legal

authority permitting that removal, the defendants have not shown their entitlement

to summary judgment on this strand of Carter-Washington’s invasion of privacy

claim. Moreover, the court’s independent research of the issue revealed persuasive

authority suggesting a claim for invasion of privacy may lie where a foreclosure

purchaser or its agent removes personal belongings from the foreclosed property.

See Russell v. Am. Real Est. Corp., 89 S.W.3d 204, 212 (Tex. App. 2002) (holding

evidence real estate agent rummaged through “intimate personal belongings” of

occupants of foreclosed property – including clothing, family photos, and personal

care items – while conducting inspection of property for new owner, raised a fact

issue as to whether real estate agent intruded into former occupants’ solitude,

seclusion, or private affairs or concerns); DeVore v. Lyons, 2017 WL 1231484, at *5

(N.D. Tex. Apr. 4, 2017) (holding allegations defendant removed personal and

confidential items from defendant’s residence stated plausible claim for invasion of

privacy);14 cf. Mwangi v. Fed. Nat’l Mortg. Ass’n, 162 F. Supp. 3d 1315, 1324 (N.D.

Ga. 2016) (holding conversion claim based on alleged removal of personal

belongings from foreclosed property survived summary judgment where there was

a genuine dispute as to whether plaintiff had abandoned the foreclosed property or

14 The elements of a claim for invasion of privacy under Texas law are similar to the elements of

a claim for invasion of privacy under Alabama law. Compare Russell, 89 S.W.3d at 212, with

Mizell, 410 So. 2d at 47.

the personal belongings located there).

The defendants ask that, in the event Carter-Washington’s invasion of privacy

claim survives summary judgment, the court restrict her ability to recover mental

anguish damages in relation to the claim. (Doc. 24 at 23-24). They assert that under

Alabama law a plaintiff cannot recover mental anguish damages unless she sustained

a physical injury or was placed in immediate risk of physical harm by the challenged

conduct, citing Rawlings v. Dovenmuehle Mortg., Inc., 64 F. Supp. 2d 1156, 1167

(M.D. Ala. 1999), and contend there is no evidence Carter-Washington sustained a

physical injury or was placed in immediate risk of physical harm by their conduct.

(Doc. 24 at 24).

Rawlings addressed the recovery of mental anguish damages in the context of

a negligence claim. See Rawlings, 64 F. Supp. 2d at 1167. Persuasive secondary

authority regarding the recovery of damages under Alabama law explains the

standard for recovery of mental anguish damages in the context of a negligence claim

is distinct from the standard for recovery of mental anguish damages in the context

of other tort claims. See ALABAMA LAW OF DAMAGES § 36:6 (6th ed.). In the context

of other tort claims, a category that includes invasion of privacy claims, mental

anguish damages are recoverable if the plaintiff sustained a physical injury or, in the

absence of physical injury, property damage caused by conduct “committed under

circumstances of insult or contumely.” Id. (internal quotation marks omitted); see

also Wal-Mart Stores, Inc. v. Bowers, 752 So. 2d 1201, 1204 (Ala. 1999) (collecting

cases). Because the defendants’ argument does not address the appropriate standard,

the court will not disallow the recovery of mental anguish damages in the context of

Carter-Washington’s invasion of privacy claim at this time. The defendants may ask

the court to revisit the matter before trial by filing a motion that addresses the

appropriate standard. Any such motion also should address authority that seems to

suggest damages for mental anguish may be recoverable in the context of a tort

claim, regardless of whether the plaintiff sustained a physical injury or property

damage caused by conduct committed under circumstances of insult or contumely.

See, e.g., Slack v. Stream, 988 So. 2d 516, 531 (Ala. 2008) (“It is well settled that a

plaintiff may recover compensatory damages for mental anguish, even when mental

anguish is the only injury visited upon the plaintiff.”) (internal quotation marks

omitted).

IV. Conclusion

For the reasons stated above, the court GRANTS the defendants’ summary

judgment motion (Doc. 20) as to Carter-Washington’s breach of contract claim,

claim brought under Ala. Code § 6-6-280, and claim for violations of the court-

imposed stay and DISMISSES those claims WITH PREJUDICE. However, the

court DENIES the motion (Doc. 20) as to Carter-Washington’s invasion of privacy

claim, while noting the claim may proceed only insofar as Carter-Washington claims

the defendants invaded her privacy by removing her family’s belongings from the

property. The court DENIES WITHOUT PREJUDICE the defendants’ request to

restrict Carter-Washington’s ability to recover mental anguish damages in relation

to her surviving invasion of privacy claim.

DONE this 14th day of March, 2025.

STACI G. CORNELIUS

U.S. MAGISTRATE JUDGE

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