Alabama State Employees Credit Union v. Devin Jemison (Appeal from Montgomery Circuit Court CV-24-403).

Rel: May 16, 2025

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
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ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2024-2025
_________________________

CL-2025-0004
_________________________

Alabama State Employees Credit Union

v.

Devin Jemison

Appeal from Montgomery Circuit Court
(CV-24-403)

LEWIS, Judge.

The Alabama State Employees Credit Union ("ASECU") appeals

from a judgment entered by the Montgomery Circuit Court ("the circuit

court") in proceedings ASECU initiated against Devin Jemison. We

reverse the circuit court's judgment.
CL-2025-0004

Procedural History

On September 30, 2024, ASECU filed in the Montgomery District

Court ("the district court") a statement of claim as well as a complaint

against Jemison requesting a judgment in the amount of $13,109.03, plus

court costs and attorney fees. ASECU alleged that Jemison had

defaulted on an obligation in a contract with ASECU, that he owed

ASECU $13,109.03, that Jemison had agreed to pay attorney fees in the

amount of $1,966.35, and that Jemison had agreed to waive his right to

claim exemptions from the amount owed. That same day, ASECU filed

a waiver of service and a joint motion for a consent judgment, which was

signed by the parties. The parties requested that the district court enter

a judgment in favor of ASECU and against Jemison that incorporated

Jemison's waiver of exemptions and awarded ASECU $15,075.38, plus

court costs. The parties attached an agreement dated September 30,

2024 ("the September 30, 2024, agreement"), in which Jemison stated:

"For valuable consideration, the undersigned hereby
agrees to waive his/her exemptions under the laws or the
Constitution of the State of Alabama. This agreement is
signed in conjunction with a negotiated settlement agreement
entered into between the undersigned and the Law … Office
of Richard C. Dean, Jr., who represents a creditor to whom I
owe money. Further, this waiver of exemptions is authorized
under Alabama Law, pursuant to Sections 6-10-120 and 6-10-

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121, Code of Alabama [1975], and Article X, Section 210 of the
Constitution of the State of Alabama. Further, I was able to
negotiate a settlement agreement in a case that Richard Dean
is handling for one of my creditors, in which I had substantial
input into the payment arrangement. Further, I understand
he will seek a judgment in a Court case filed against me,
which contains a waiver of exemptions. Further, I hereby
state and agree that this waiver of exemptions is not sought
in conjunction with any agreement to borrow money from a
lender at the present time, and therefore, does not violate any
state or federal laws or regulations. Further, I sign this
agreement voluntarily and of my own free will."

On October 1, 2024, the district court entered a judgment in favor

of ASECU "in the amount of $15,075.38, plus costs, without waiver of

exemptions." (Emphasis added.) The next day, ASECU filed a notice of

appeal to the circuit court.

On October 16, 2024, ASECU filed in the circuit court a waiver of

service and a joint motion for a consent judgment, which was signed by

the parties. ASECU attached the September 30, 2024, agreement. On

October 17, 2024, the circuit court entered a judgment in favor of ASECU

"in the amount of $15,075.38, without waiver of exemptions, plus costs."

(Emphasis added.) The next day, ASECU filed a postjudgment motion

requesting that the circuit court amend its order to provide for a waiver

of exemptions. ASECU supplemented its motion on October 25, 2024.

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After a hearing, the circuit court entered an order on December 4, 2024,

denying ASECU's postjudgment motion, stating:

"This matter came before the Court on December 4,
2024[,] for Hearing on [ASECU's] Motion to Alter or Amend
Judgment entered in favor of [ASECU] to include a waiver of
exemptions. [ASECU] submitted a Memorandum of Law in
support of the waiver of exemptions citing Broadway v.
Household Finance Corporation of Huntsville, 351 So. 2d 1373
(Ala. Civ. App. 1977)[,] for the proposition that a waiver of
exemptions is permitted under Alabama law. On that point,
this Court concurs as the law is clear that a party may waive
exemptions provided the waiver is in writing signed by the
party against whom waiver is sought. The argument
advanced by [ASECU] is, however, more nuanced.

"Although the Complaint in this case … specifically
pleads that [Jemison] agreed to waive all rights to claim
exemption under Alabama law, that is incorrect with respect
to the contract for which [ASECU] seeks recovery. The
original contract executed by [Jemison] did not contain a
provision (or said provision was not provided to the Court)
wherein [Jemison] agreed to waiver of exemptions. Rather,
on the same day the Complaint was filed, [ASECU's] counsel
negotiated a 'Consent Agreement' with [Jemison] wherein
[Jemison] agreed to certain payment terms 'with waiver of
exemptions.' While [ASECU] provided the Consent
Agreement signed by [Jemison] …, the Consent Agreement
imposes a materially different term than that imposed by the
contract under which [ASECU] seeks recovery. In other
words, while this Court granted the full judgment amount
sought by [ASECU], along with attorneys' fees and expenses,
as provided by the original contract, [ASECU] seeks
enforcement of a Consent Agreement requiring waiver of
exemptions between two parties not of equal bargaining
capability as [Jemison] clearly owes the debt claimed by
[ASECU]. Because the contractual agreement upon which

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[ASECU's] lawsuit is based does not contain language
requiring a waiver of exemptions, this Court declines to
impose such a duty upon [Jemison] in the Final Consent
Order entered in this case. Accordingly, [ASECU's] Motion to
Alter or Amend is DENIED."

On January 3, 2025, ASECU filed in this court a petition for a writ

of mandamus. On January 27, 2025, this court entered an order treating

the mandamus petition as a notice of appeal.

Discussion

On appeal, ASECU argues that the circuit court erred in declining

to provide for a waiver of exemptions in its judgment because, ASECU

argues, Jemison had agreed to such a waiver.

"[T]he legislature has for more than one hundred years provided

statutory protection for the constitutional right of exemption and the

constitutional right of waiver." Broadway v. Household Fin. Corp. of

Huntsville, 351 So. 2d 1373, 1377 (Ala. Civ. App. 1977). "The constitution

and statutes authorizing a written waiver of personal property

exemption express the public policy of Alabama." Id. at 1375. Section 6-

10-120, Ala. Code 1975, provides: "Any person, by an instrument in

writing, may waive his or her right to an exemption in any property

exempt from levy and sale under execution or other process." Section 6-

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10-121, Ala. Code 1975, specifies that a waiver of exemptions with respect

to personal property "may be made by a separate instrument in writing,

subscribed by the party making the same, or it may be included in any

bond, bill of exchange, promissory note, or other written contract

executed by him or her."

Both waivers and settlement agreements involve matters of

contract law. See Broadway, 351 So. 2d at 1377 ("[A] waiver is a matter

of contract …."); Lem Harris Rainwater Fam. Tr. v. Rainwater, 373 So.

3d 1089, 1093 (Ala. 2022) ("A settlement agreement is a contract.") Here,

although the parties' original contract did not include a waiver of

exemptions, Jemison executed a waiver of exemptions in the September

30, 2024, agreement. The circuit court declined to honor the waiver of

exemptions, pointing out that there was no waiver in the original

contract. However, as our supreme court has explained: "[P]arties are

free to modify agreements, and if the terms of a subsequent agreement

contradict the earlier agreement, the terms of the later agreement

prevail." Cavalier Mfg., Inc. v. Clarke, 862 So. 2d 634, 641 (Ala. 2003).

Moreover, "agreements made in settlement of litigation are as binding on

parties thereto as any other contract." Nero v. Chastang, 358 So. 2d 740,

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743 (Ala. Civ. App. 1978). Therefore, we conclude that the circuit court

erred in declining to give effect to the waiver of exemptions in the

September 30, 2024, agreement.

We note that the circuit court also pointed out that the parties had

"unequal bargaining power, as [Jemison] clearly owes the debt claimed

by [ASECU]."1 However, there was no ore tenus evidence presented to

the circuit court; the circuit court had before it only the September 30,

2024, agreement itself, which referenced "valuable consideration" and "a

negotiated settlement agreement." In Blackledge v. Blackledge, 134 So.

3d 891, 893 (Ala. Civ. App. 2013), this court reversed a judgment based

on the fact that it did not accord with the settlement agreement because

there was no ore tenus evidence presented upon which the circuit court

could base its deviation from the settlement agreement. Similarly, in this

case, there was no evidence upon which the circuit court could base a

deviation from the parties' requested consent judgment. As ASECU

points out, "the act of entering a consent judgment in a manner lawfully

1For an agreement to be unconscionable, there must be "(1) terms

that are grossly favorable to a party that has (2) overwhelming
bargaining power." Leonard v. Terminix Int'l Co., L.P., 854 So. 2d 529,
538 (Ala. 2002).
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agreed upon between the parties and within the authority of the court is

ministerial." Ex parte Boyd, 417 So. 2d 577, 578 (Ala. 1982) (citing State

v. Jones, 252 Ala. 479, 41 So. 2d 280 (1949)); see also Ex parte Lawley,

636 So. 2d 474 (Ala. Civ. App. 1994). Because the circuit court failed to

enter a judgment in accordance with the parties' requested consent

judgment, we reverse the circuit court's judgment and remand this cause

for the entry of a judgment in accordance with this opinion.

REVERSED AND REMANDED.

Moore, P.J., and Edwards and Hanson, JJ., concur.

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