Code of Alabama

Ala. Code § 35-10-3 (2026)

Foreclosure When Instrument Contains No Power of Sale.

✓ official Alabama Legislature (ALISON) text, current July 2026

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If no power of sale is contained in a mortgage or deed of trust, the grantee or any assignee thereof, at his option, after condition broken, may foreclose same either in a court having jurisdiction of the subject matter, or by selling for cash at the courthouse door of the county where the property is situated, to the highest bidder, the lands embraced in said mortgage or deed of trust, after notice of the time, place, terms, and purpose of such sale has been given by four consecutive weekly insertions of such notice in some newspaper published in the county wherein said lands, or a portion thereof are situated.

(Code 1923, §9012; Code 1940, T. 47, §166.)

Notes of Decisions

Cited in 4 cases, 1984–2013 · leading case: Sturdivant v. BAC Home Loans Servicing, LP, 159 So. 3d 15 (Ala. Civ. App. 2011).

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Sturdivant v. BAC Home Loans Servicing, LP, 159 So. 3d 15 (Ala. Civ. App. 2011). · cites it 2× “Ala.Code 1975, § 35-10-3, which provides: “If no power of sale is contained in a mortgage or deed of trust, the grantee or any assignee thereof, at his option, after condition broken, may foreclose same either in a court having jurisdiction of the subject matter, or by selling…”

Gabriel Johnson, Individually & on Behalf of All Others Similarly Situated v. United States Dep't of Agric., 734 F.2d 774 (11th Cir. 1984). “Alabama Code § 35-10-3 does authorize nonjudicial foreclosures when the underlying instrument contains no power of sale provision.”

In Re Phillips, 439 B.R. 892 (Bankr. N.D. Ala. 2010). “§ 35-10-3. The latter is silent with regard to the method of foreclosure if the mortgage contains no such power; the Court assumes judicial foreclosure is the only option in such a case, otherwise the holder of a defaulted mortgage would be left with no remedy though which he…”

Patterson v. GMAC Mortg., LLC, 176 So. 3d 845 (Ala. 2013). “1958), the predecessor to § 35-10-3] obviously contemplated in every instance a foreclosure by sale, whether the foreclosure is by court action or under the power pf sale” (emphasis added)).”

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