Eleventh Circuit Clarifies that Alabama Wrongful-Foreclosure Claims Do Not Require Mortgagees to Produce the Original Note (“Show-Me-the-Note”)
Haywood Jackson Mizell v. Wells Fargo Bank, N.A.

1. Introduction

The United States Court of Appeals for the Eleventh Circuit, in its unpublished but instructive opinion in Haywood Jackson Mizell v. Wells Fargo Bank, N.A. (No. 24-10856, 10 July 2025), once again addressed the viability of “show-me-the-note”–style wrongful-foreclosure claims in Alabama. The appellant, Haywood Jackson Mizell, proceeding pro se, challenged two non-judicial foreclosure sales conducted in 2010 (by PHH Mortgage Corporation) and 2013 (by Wells Fargo Bank, N.A.). He alleged that because the defendants failed to establish that they were “holders in due course” of the underlying promissory notes prior to foreclosure, the sales were void and the defendants owed him more than USD 14 million in damages.

The district court dismissed the complaint with prejudice for failure to state a claim. On appeal, the Eleventh Circuit affirmed, holding that Alabama law imposes no requirement that a mortgagee display the “original wet-ink” promissory note—or otherwise prove holder-in-due-course status—before exercising the contractual power of sale in a mortgage. This commentary examines the court’s reasoning, the precedents relied upon, and the broader implications for foreclosure litigation in Alabama and beyond.

2. Summary of the Judgment

  • Holding: The complaint failed to state a cognizable claim of wrongful foreclosure under Alabama law because Alabama’s foreclosure statutes do not require the mortgagee to prove its claim or produce the original note before initiating a non-judicial foreclosure.
  • Disposition: Affirmed. The district court’s dismissal with prejudice stands.
  • Key Rationale: Alabama recognizes wrongful-foreclosure claims only when the mortgagee employs the power of sale for a purpose other than securing the debt. Mere failure to present an “authenticated instrument” or satisfy a “show-me-the-note” demand does not amount to wrongful foreclosure.

3. Analysis

3.1 Precedents Cited and Their Influence

  • Jackson v. Wells Fargo Bank, N.A., 90 So. 3d 168 (Ala. 2012) – The Alabama Supreme Court defined wrongful foreclosure as use of the power of sale for an ulterior purpose. The Eleventh Circuit leaned on this definition to reject Mizell’s theory.
  • Reeves Cedarhurst Dev. Corp. v. First Am. Fed. Sav. & Loan Ass’n, 607 So. 2d 180 (Ala. 1992) – Quoted for the same “other than to secure the debt” standard.
  • Harris v. Deutsche Bank Nat’l Tr. Co., 141 So. 3d 482 (Ala. 2013) – Distinguished claims premised on technical statutory prerequisites from true wrongful-foreclosure claims.
  • Douglas v. Troy Bank & Trust Co., 122 So. 3d 181 (Ala. Civ. App. 2012); Ballentine v. Ala. Farm Credit, ACA, 138 So. 3d 1005 (Ala. Civ. App. 2013) – Confirmed that Alabama law does not require production of the original note before foreclosure.
  • Farkas v. SunTrust Mortgage, Inc., 447 F. App’x 972 (11th Cir. 2011) and Graveling v. Castle Mortgage Co., 631 F. App’x 690 (11th Cir. 2015) – Eleventh Circuit unpublished opinions rejecting “show-me-the-note” arguments; cited to reinforce circuit consistency.
  • Triple J Cattle, Inc. v. Chambers, 551 So. 2d 280 (Ala. 1989) – Explained that foreclosure and suit on the note are separate remedies.

3.2 The Court’s Legal Reasoning

  1. Statutory Framework – Alabama Code §§ 35-10-11 to 35-10-16 govern non-judicial (power-of-sale) foreclosure. Nothing in these provisions obliges a mortgagee to present the original note or demonstrate holder-in-due-course status prior to sale.
  2. Distinction Between Mortgage and Note – Although a promissory note is a negotiable instrument under Article 3 of the Alabama U.C.C., foreclosure itself is an in rem action on the mortgage, not an action on the note. Article 3 requirements therefore do not overlay the foreclosure process.
  3. Definition of Wrongful Foreclosure – Drawing from Jackson, the court reiterated that wrongful-foreclosure liability attaches only when the power of sale is exercised for an improper purpose (e.g., oppression, self-dealing). Mizell alleged no such purpose.
  4. Rejection of “Show-Me-the-Note” Theory – The Eleventh Circuit again rejected the contention—popular among consumer litigants since the 2008 mortgage crisis—that a foreclosing entity must brandish the original note to foreclose.
  5. Pleading Deficiency – Even under liberal pro se standards, Mizell’s complaint lacked plausible factual allegations of an invalid debt or ulterior motive, and thus failed under Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly.

3.3 Potential Impact of the Judgment

  • Clarifies Litigation Pathways. Borrowers in Alabama cannot compel discovery of the original note merely to forestall foreclosure. Plaintiffs must plead facts indicating improper purpose, fraud, or statutory non-compliance beyond note production.
  • Reduces Strategic “Delay” Litigation. The decision is likely to curb pro se suits predicated solely on holder-in-due-course challenges, easing docket congestion in both state and federal courts.
  • Consistency Across Jurisdictions. Though unpublished, the opinion aligns Alabama with the majority of U.S. jurisdictions rejecting the “show-me-the-note” requirement in non-judicial settings, providing persuasive authority elsewhere.
  • Guidance for Mortgage Servicers and Counsel. Servicers can rely on the case when designing foreclosure protocols; production of the note remains best practice but not a legal prerequisite.
  • Pro Se Litigant Caution. The decision underscores the importance of satisfying pleading standards and focusing on actionable misconduct rather than technical note-possession arguments.

4. Complex Concepts Simplified

  • Non-Judicial Foreclosure – A foreclosure process that proceeds without court involvement, relying on a “power of sale” clause in the mortgage. Notice and auction requirements are governed by state statute.
  • Power of Sale – A contractual provision in a mortgage or deed of trust authorizing the mortgagee (or trustee) to sell the property upon borrower default.
  • Holder in Due Course – Under U.C.C. Article 3, a party who takes a negotiable instrument for value, in good faith, and without notice of defects. Such status gives elevated defenses in suits on the note but is not required for foreclosure in Alabama.
  • “Show-Me-the-Note” Theory – A borrower defense asserting that foreclosure is unlawful unless the foreclosing entity produces the original promissory note with wet-ink signature. Most jurisdictions—including Alabama—reject this theory in non-judicial foreclosures.
  • Wrongful Foreclosure (Alabama) – A tort claim arising when the mortgagee uses the power of sale for a purpose other than securing the debt, such as to oppress the borrower or acquire the property unfairly.
  • Per Curiam (PC) Opinion – An appellate decision issued “by the court” as a whole, without identifying the authoring judge; often signals unanimity and that the legal issues are straightforward.

5. Conclusion

The Eleventh Circuit’s decision in Mizell v. Wells Fargo Bank, N.A. solidifies a now-well-settled principle: Alabama borrowers cannot block or undo a non-judicial foreclosure simply because the mortgagee has not produced the original note or proven its holder-in-due-course status. Wrongful-foreclosure liability requires allegations and proof that the lender employed the power of sale for an improper purpose. By reaffirming the limited scope of such claims and rejecting “show-me-the-note” arguments, the court offers clear guidance to litigants, lower courts, and the mortgage industry. Going forward, plaintiffs must plead concrete facts about illegitimate motives or statutory violations—not mere technical challenges—to survive a motion to dismiss in Alabama foreclosure litigation.