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Birmingham Bar Association Summer 2016

Continued from page 13 Does Alabama Law Protect Workers Who Report Child Abuse or Nursing Home Abuse? to not carving out exceptions to at-will employment for the purpose of advancing public policy, repeatedly punting such opportunities to a Legislature that consistently drops the ball. See Howard v. Wolff Broadcasting Corp., 611 So. 2d 307 (Ala. 1992). The upshot of this is that child abuse and nursing home abuse whistleblowers may find themselves out of a job and on a blacklist with no legal recourse for doing what is required under the law. Although Alabama legislation purports to protect its young, aged, and disabled from abuse and neglect, the state’s law does little to protect those best positioned to come to the aid of the abused. G Russ Parker practices employment law in Birmingham. Alabama Statutory Rights of Redemption: The Basics, Revisited & Updated ity. Bailey Mortgage Co. v. Gobble-Fite Lumber Co., 565 So. 2d 138, 144 (Ala. 1990). If there are no other liens on the property, the surplus should be paid to the mortgagor. Id. Interpleader of any surplus remaining after the mortgagor’s debt is satisfied is a good practice when there is at least one junior lienholder. Paul Greenwood is a partner with Balch & Bingham, LLP, and Lee Johnsey is an associate with the firm. Whistelblower Rights/Real Estate Law person, firm, corporation or association that any person has been blacklisted by such person, firm, corporation or association who uses any other similar means to prevent any person from receiving employment.” Code of Ala. § 13A-11-123. There appear to be no reported state cases of whether an implied right of action arises under the blacklisting statute. An Alabama federal court has declined to recognize such a cause of action. Abbott v. Elwood Staffing Servs., Case 1:12-cv-0224-VEH (N.D. Ala., Feb. 28, 2013). In declining to recognize a cause of action under Alabama blacklisting law, the federal court stated instances of other states deriving private causes of action from their blacklisting statutes as in the cases of Moore v. Commercial Aircraft Interiors, LLC, 278 P.3d 197 (Wash Ct. App. 2012) and Johnson v. Or. Stevedoring Co., 270 P. 772 (Or. 1928) are “not indicative of Alabama law.” Abbott, supra, at 7. The federal court noted, however, that no state court would be bound by its determination. Id. The federal court’s research turned up no case where an Alabama court recognized an implied private right of action under an Alabama statute. Id. at 5. In the context of whistleblower protection, Alabama courts are unlikely to recognize a private right of action for workers without some express statutory provision authorizing whistleblowers to take civil action against employers that retaliate against them. In other words, if the Legislature does not expressly provide whistleblowers with the right to sue to protect their livelihoods, courts are unlikely to find clear evidence of an intent to impose civil liability on a retaliating employer. Questionable as this may be as a matter of policy, Alabama courts have been perennially committed Continued from page 26 and one or more judgment liens sought to redeem the property, and it argued that it was not required to include the balance owed on the foreclosed mortgage in its redemption price. The court disagreed, holding that in addition to the purchase price (plus interest) paid at the foreclosure sale, the redeeming party must pay “all” higher priority encumbrances, including the balance owed on the foreclosed mortgage. The court noted that the Alabama Legislature “clearly intended to prevent financial windfalls to junior creditors. . . . by preventing them from vaulting over the holder of the first mortgage, . . . to become the possessor of the property.” Id. at 875. 4. Subsequent Sale by the Mortgagee During the Redemption Period Under Alabama law, when a mortgagee purchases property at the foreclosure sale and later sells the property to a third party within the statutory redemption period, the mortgagee must apply any “surplus” or “profit” derived from the sale as a reduction of the mortgagor’s debt. Springer v. Baldwin County Fed. Sav. Bank, 597 So. 2d 677 (Ala. 1992). The “surplus” or “profit” realized by the mortgagee is the amount received in the subsequent sale less all expenses incurred by the mortgagee in the management and sale of the property. Id. Any surplus remaining after the mortgagor’s debt is satisfied must paid to junior lienholders in their order of prior- Paul Greenwood Lee Johnsey 30 Birmingham Bar Association


Birmingham Bar Association Summer 2016
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