Cameron Givianpour v. Thomas J. Curtain, Sr. , 166 So. 3d 662 ( 2014 )


Menu:
  • Rel: 10/24/2014
    Notice: This opinion is subject to formal revision before publication in the advance
    sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
    Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
    0649), of any typographical or other errors, in order that corrections may be made before
    the opinion is printed in Southern Reporter.
    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
    2
    1130098
    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."
    3
    1130098
    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."
    4
    1130098
    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."
    5
    1130098
    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
    6
    1130098
    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
    7
    1130098
    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.
    8
    1130098
    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."
    9
    1130098
    "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
    10
    1130098
    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
    11
    1130098
    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
    12
    1130098
    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
    13
    1130098
    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
    14
    1130098
    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)).
    15
    1130098
    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.
    16
    1130098
    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
    17
    1130098
    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).
    18
    1130098
    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
    19
    1130098
    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).
    20
    1130098
    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.
    21
    1130098
    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.
    22
    1130098
    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
    23
    1130098
    ... 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
    24
    1130098
    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
    25
    1130098
    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
    26
    1130098
    "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
    27
    1130098
    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."
    28
    1130098
    
    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
    29
    1130098
    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
    30
    1130098
    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.
    31