Gandy v. Citicorp


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Docket Number: 2007-CA-00306-COA
Court of Appeals: Opinion Link
Opinion Date: 06-17-2008
Opinion Author: KING, C.J.
Holding: Affirmed
Additional Case Information: Topic: Contract - Foreclosure sale - Jurisdiction - Section 11-25-1 - Section 11-25-101 - Section 9-9-21 - Section 11-51-83 - Filing of estate - Section 91-7-261 - Section 91-7-167 - Inequitable foreclosure
Judge(s) Concurring: LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND CARLTON, JJ.
Non Participating Judge(s): ROBERTS, J.
Procedural History: Bench Trial
Nature of the Case: CIVIL - CONTRACT
Trial Court: Date of Trial Judgment: 01-16-2007
Appealed from: WAYNE COUNTY CIRCUIT COURT
Judge: Lester F. Williamson
Disposition: GRANTED PLAINTIFF’S MOTION FOR UNLAWFUL ENTRY AND DETAINER
Case Number: CV-2005-127(W)
  Party Name: Attorney Name:   Brief(s) Available:
Appellant: DAISY M. GANDY AND/OR UNKNOWN JOHN DOES AND JANE DOES




 VANESSA J. JONES



  
  • Appellant #1 Reply Brief
    		•
    Appellee: CITICORP BRADLEY P. JONES, MERIDETH JANET DRUMMOND  
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    Topic: Contract - Foreclosure sale - Jurisdiction - Section 11-25-1 - Section 11-25-101 - Section 9-9-21 - Section 11-51-83 - Filing of estate - Section 91-7-261 - Section 91-7-167 - Inequitable foreclosure
    Summary of the Facts: In 1996, Daisy Gandy executed a deed of trust in favor of First Financial Family Services, a predecessor of Citicorp. After Daisy’s death in 1999, payments continued to be made on the loan, but it eventually fell into default. Citicorp began foreclosure proceedings on the parcel that was used as collateral for the loan. Lem Adams III was appointed as substitute trustee. Adams properly published notice of the foreclosure sale. Mary, Daisy’s daughter, received notice of the scheduled foreclosure sale and began the process to open Daisy’s estate. Mary informed Citicorp that she had made a motion in chancery court requesting probate of the estate, appointment of administrators, issuance of letters of administration, and other relief. The chancery court entered an order that opened the estate and appointed administrators. As scheduled, Adams conducted the foreclosure sale where Citicorp was the only bidder. Adams then executed a substitute trustee’s deed in favor of Citicorp. Citicorp filed a complaint in justice court for unlawful entry and detainer in an effort to obtain possession of the property. The justice court found that the matter should have been filed in the chancery court due to the pending estate filed therein. Citicorp appealed the matter de novo to circuit court which found that Citicorp was entitled to possession of the property. Mary appeals.
    Summary of Opinion Analysis: Issue 1: Jurisdiction Mary argues that the circuit court should have transferred this matter to the chancery court since there was an open estate for Daisy. An action for unlawful entry and detainer must be maintained in the justice court pursuant to section 11-25-1 or in the county court pursuant to section 11-25-101. However, section 9-9-21 provides that the county court shall have exclusive jurisdiction over matters of unlawful entry and detainer. Therefore, an action for unlawful entry and detainer should be brought in justice court only when the county where the action is filed does not have a county court. Since this matter was brought in Wayne County, the action was filed in the justice court as Wayne County does not have a county court and was rightfully appealed to circuit court pursuant to section 11-51-83. Statutorily, Citicorp correctly filed the matter and correctly appealed the matter. Therefore, it appears that the circuit court correctly had jurisdiction to hear this purely possessory action. Issue 2: Filing of estate Mary argues that the filing of an estate should have essentially enjoined the foreclosure on the subject property. Mary claims that the estate was insolvent and attempts to rely on section 91-7-261. Essentially, Mary seeks to treat the filing of the estate as an automatic stay. However, Mississippi does not have a provision that arises from the filing of an estate to prevent secured creditors from enforcing their secured liens on the property provided as collateral. Citicorp relies on section 91-7-167 which provides that a creditor shall not be deprived of his right to enforce the lien against the property by a failure to present his claim and have it probated and registered. In light of section 91-7-167, it is clear that the filing of the estate did not prevent Citicorp from performing a proper foreclosure on the property. Issue 3: Inequitable foreclosure Mary argues that the foreclosure on the property should have proceeded by bill in the chancery court, citing to the Relief from Inequitable Mortgage Foreclosures, Execution Sales, and the Like after Declared Emergency or Disaster Act. For the Act to take effect, there must exist an announcement from the President of the United States or the Governor of Mississippi invoking the protections of the Act. Such a proclamation by the Governor occurred in the wake of Hurricane Katrina. However, the foreclosure of the property in this case occurred four months prior to Hurricane Katrina and six months before the protections under the Act were invoked.


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