In re Administration of the Estate of Thomas v. First Fed. Bank for Savings
| Docket Number: | 2009-CA-00442-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 03-02-2010 Opinion Author: Lee, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Real property - Notice of foreclosure to heirs - Section 89-1-55 Judge(s) Concurring: King, C.J., Myers, P.J., Irving, Griffis, Barnes, Ishee, Roberts and Maxwell, JJ. Non Participating Judge(s): Carlton, J. Procedural History: Summary Judgment Nature of the Case: CIVIL - OTHER |
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| Trial Court: |
Date of Trial Judgment: 02-17-2009 Appealed from: MARION COUNTY CHANCERY COURT Judge: Johnny Lee Williams Disposition: GRANTED SUMMARY JUDGMENT IN FAVOR OF APPELLEE Case Number: 2007-0026-G-W |
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| Note: | Due to a military leave of absence, Hon. Virginia C. Carlton did not participate in this hand down. | |
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | IN THE MATTER OF THE ADMINISTRATION
OF THE ESTATE OF EDWARD D. MAY,
DECEASED: LAVADA THOMAS,
ADMINISTRATRIX |
WILLIAM L. DUCKER |
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| Appellee: | FIRST FEDERAL BANK FOR SAVINGS | DONOVAN O. MCCOMB | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Real property - Notice of foreclosure to heirs - Section 89-1-55 |
| Summary of the Facts: | In 2000, Edward May bought certain real property located in Marion County for approximately $12,537. Edward executed and delivered a deed of trust to First Federal Bank for Savings. In 2002, Edward died intestate. The loan secured by the deed of trust became in default, and First Federal began foreclosure proceedings. Edward’s daughter, Nettie May, made several payments on the loan; however, the loan was continually in default. The notice of foreclosure was published as required by law, and the land was sold to David Hobgood in 2004. In 2007, Lavada May, as representative of the Estate of Edward May, filed a complaint to set aside the foreclosure due to improper notice to Edward’s heirs. First Federal filed a motion for summary judgment. Hobgood was dismissed from the suit without notice as a bona fide purchaser for value. May was allowed to amend the complaint to add a claim for damages resulting from improper notice to Edward’s heirs. First Federal filed another motion for summary judgment which the court granted. May appeals. |
| Summary of Opinion Analysis: | May argues that First Federal was required to give notice of the foreclosure to Edward’s heirs. However, Mississippi law does not require the trustee to notify the mortgagor of the foreclosure. Section 89-1-55 only requires the posting and publication of the notice of sale. This procedure was properly followed. Thus, summary judgment granted in favor of First Federal was proper. May also argues that the chancellor erred in overruling her objections regarding jurisdiction. May first brought up the question of jurisdiction in the amended complaint, after Hobgood was dismissed. The foreclosure of deeds of trust or mortgages has been held to be a matter in equity. Also, once a chancery court makes a final judgment on the merits of the case, the appellate court may not reverse that finding without finding an error in addition to lack of subject matter jurisdiction. |
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