
    Sara M. POWELL and Era K. Powell v. PHENIX FEDERAL SAVINGS AND LOAN ASSOCIATION.
    83-240.
    Supreme Court of Alabama.
    April 12, 1985.
    Rehearing Denied June 7, 1985.
    
      David S. Yen, Legal Services Corp. of Ala., Opelika, for appellants.
    Robert P. Lane, Phillips and Funderburk, Phenix City, for appellee.
   EMBRY, Justice.

Sara and Era Powell filed this action against Phenix Federal Savings and Loan Association in 1981. The relief they requested was that the trial court grant an injunction against a non-judicial foreclosure on their home. That court did issue a temporary restraining order and then conducted a trial on the merits.

On 2 September 1981, a judgment was entered against the Powells which would have allowed Phenix Federal to proceed with foreclosure, but the Powells filed a motion for new trial, which was granted. The new trial was held on 2 February 1981. Again, the trial court entered judgment in favor of Phenix Federal. The plaintiffs appealed that judgment to this court.

The issue on that appeal was whether the trial court had misapplied the controlling law concerning the enforcement of a due-on-sale clause in a mortgage contract. The trial court had held that, under the controlling law, the clause was enforceable. In that opinion authored by Justice Beatty, which states the facts of this case in detail, we reversed the trial court’s judgment and remanded the case to that court for further findings of fact concerning the enforceability of the due-on-sale clause. Powell v. Phenix Federal Savings and Loan Ass’n, 434 So.2d 247 (Ala.1983).

The trial court held a hearing and allowed the parties to present further evidence. After hearing ore tenus evidence without a jury, the trial court again denied the plaintiffs’ request for equitable relief and the plaintiffs again appealed to this court.

After a careful review of the record, we must affirm the judgment of the trial court. It is axiomatic that where a trial court hears ore tenus evidence, its judgment is presumed correct, and will not be disturbed on appeal unless plainly and palpably erroneous. League v. McDonald, 355 So.2d 695 (Ala.1978). Our review of the record below reveals no such error.

AFFIRMED.

MADDOX, ALMON, SHORES, BEATTY and ADAMS, JJ., concur.

JONES, J., concurs in the result.

TORBERT, C.J., and FAULKNER, J., dissent.

JONES, Justice

(concurring in the result).

I concur in the result. See my concurring opinion in Powell I, 434 So.2d 247 (Ala.1983).

TORBERT, Chief Justice

(dissenting).

I dissent based upon my views expressed in my dissent to the overruling of the application for rehearing in Tierce v. APS Co., 382 So.2d 485 (Ala.1980), and my special concurrence in Powell v. Phenix Federal Savings & Loan Ass’n, 434 So.2d 247 (Ala.1983).

In Powell, supra, the circumstance surrounding the execution of the note and mortgage were set forth:

“When Mr. and Mrs. Powell signed the note and mortgage, they were not represented by an attorney and did not read the documents. In reference to the mortgage, Mr. Powell later testified, Tf I had read it, I wouldn’t have understood it.’ The note, unlike the mortgage, contained a prepayment penalty clause. The Powells testified without contradiction that an employee of Phenix Federal explained that they could not pay off the loan during the first year but did not explain the consequences of selling the property under the mortgage.”

Id. at 248. The trial court, in its order on remand, found that “[t]he Powells knew or had the opportunity to know the contents of the original mortgage to Phenix Federal and to inquire about the terms of the mortgage before they signed it.”

In Tierce, supra, I agreed with the following statement in First Southern Federal Savings & Loan Ass’n of Mobile v. Britton, 345 So.2d 300 (Ala.Civ.App.1977):

“If the clause is to be used to advance the financial interest of the lender through requirement of payment of a penalty or an increase in interest rate, such purpose must be openly stated and bargained for from the inception of the contract.”

In Lloyd v. Service Corp. of Alabama, 453 So.2d 735 (Ala.1984), we held that in order for a lessor to show that an exculpatory clause in a residential lease had been “bargained for,” the lessor “had the burden of showing that the provisions were explained to the lessee and came to his knowledge and that there was in fact a real and voluntary meeting of the minds and not merely an objective meeting.” Id. at 741. I would apply the same standard in this case.

Under that standard, the due-on-sale clause could not be enforced under the facts of this case.

FAULKNER, J., concurs.  