THOMPSON, Presiding Judge.
Donald Moore and Sandra Moore appeal from a partial summary judgment entered by the Etowah Circuit Court in favor of HSBC Mortgage Services ("HSBC") on their claim against HSBC. Because this court lacks jurisdiction in this matter, we dismiss the appeal.
The Moores filed an action against Alabama Home Construction, Inc. ("Home Construction"), and HSBC. In their complaint, the Moores alleged that they had entered into a contract with Home Construction for the construction of a new house. They alleged that, as soon as they moved into the house, they began to experience numerous problems with the house, including plumbing leaks, problems with drywall, and a severe mold infestation. The Moores claimed that they had spent a substantial amount of money to repair the house and that Sandra Moore had become ill as a result of the mold infestation. The Moores asserted claims of breach of the implied warranty of habitability, breach of contract, negligence, and wantonness against Home Construction.
With regard to HSBC, the Moores alleged in their complaint that Home Construction had arranged for the financing of the construction of the house for the Moores and that the original lender that had held the Moores' note and mortgage related to the construction of the house sold the note and mortgage to HSBC. The Moores asserted that HSBC had purchased the note and mortgage from the original lender subject to all of the defenses the Moores had against Home Construction. The Moores asserted that they had a defense to the note based on the fact that the house Home Construction had built for them was defective and in such a condition that its value was substantially impaired. The Moores sought a credit on the balance of the loan evidenced by the note for the amount they asserted was owed to them by Home Construction due to the defective condition of the house. They also sought a stay of all loan payments due on the note until their claims against Home Construction were resolved.
In its answer, HSBC asserted, among other things, that the Moores' claim against it was barred because it was a holder in due course of the note at issue. HSBC also asserted a counterclaim against the Moores in which it claimed that it had purchased the note and mortgage in question, that the Moores had defaulted on the note, and that HSBC was a holder in due course of the note such that the Moores' claims against Home Construction did not excuse their default on the note. HSBC sought a declaration that the Moores had defaulted on the note; an order allowing the Moores a reasonable time in which to cure their default; and, should the Moores fail to cure the default, an order "accelerating the note and determining amounts due thereunder," a judgment for that amount, and an order foreclosing the mortgage. The Moores filed a reply to HSBC's counterclaim in which they asserted that the counterclaim was without merit because HSBC was not a
HSBC filed a motion for a partial summary judgment as to the Moores' claim against it. It asserted that it was a holder in due course of the note, and it submitted evidence in support of that contention. Importantly, HSBC did not seek a summary judgment in its favor on its counterclaim against the Moores. In their opposition to HSBC's partial-summary-judgment motion, the Moores argued, among other things, that HSBC was not a holder in due course of the note. In so arguing, they relied on 16 C.F.R. § 433.2, which is known as "the FTC Holder Rule."
Jaramillo v. Gonzales, 132 N.M. 459, 465, 50 P.3d 554, 560 (N.M.Ct.App.2002). At the hearing on the motion, the attorney for the Moores also asserted that HSBC was not a holder in due course because HSBC had not taken the note in good faith.
On June 16, 2010, the trial court granted HSBC's motion and entered a partial summary judgment in its favor as to the Moores' claim against it. The trial court certified the partial summary judgment as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. The Moores filed a motion to alter, amend, or vacate the partial summary judgment, which the trial court denied. The Moores filed a timely appeal to this court. Because this court lacked appellate jurisdiction, we transferred the appeal to our supreme court. The supreme court transferred the appeal back to this court pursuant to § 12-2-7(6), Ala.Code 1975.
The Moores raise multiple issues on appeal; however, this court's review of those issues is precluded by the fact that we lack appellate jurisdiction in this matter. Although neither the Moores nor HSBC has raised an issue with regard to this court's jurisdiction over the appeal, this court is required to consider its jurisdiction ex mero motu. Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ. App.1997). In BB & S General Contractors, Inc. v. Thornton & Associates, Inc., 979 So.2d 121, 123-25 (Ala.Civ.App.2007), this court discussed the entry of a final judgment as to fewer than all the claims or parties in an action pursuant to Rule 54(b), Ala. R. Civ. P.:
BB & S General Contractors, Inc., 979 So.2d at 123-25.
In the present case, the basis of the Moores' claim against HSBC, which is presently before us, is that HSBC is not a holder in due course of the note and mortgage related to the Moores' house and, as a result, that HSBC's claim under those instruments is subject to certain defenses
Because the resolution of both the Moores' claim, which was resolved by the partial summary judgment, and HSBC's counterclaim, which is still pending in the trial court, require a consideration of virtually the same issues, we conclude that those claims are so closely intertwined that separate adjudication of those claims poses an unreasonable risk of inconsistent results. As a result, we conclude that the trial court erred when it certified the partial summary judgment as a final judgment pursuant to Rule 54(b). See BB & S General Contractors, Inc., 979 So.2d at 123-25. Without the trial court's certification, there is no final judgment over which this court can exercise appellate jurisdiction, and, as a result, the appeal is due to be and is hereby dismissed. See id.
APPEAL DISMISSED.
PITTMAN, BRYAN, THOMAS, and MOORE, JJ., concur.