Osborne v. Neblett
| Docket Number: | 2009-CP-01312-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 06-07-2011 Opinion Author: Irving, P.J. Holding: Reversed and rendered. |
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| Additional Case Information: |
Topic: Real property - Foreclosure sale - Section 89-1-55 - Publication requirements - Waiver Judge(s) Concurring: Lee, C.J., Barnes, Ishee and Maxwell, JJ. Non Participating Judge(s): Russell, J. Dissenting Author : Griffis, P.J. With Separate Written Opinion Dissent Joined By : Myers, Roberts, and Carlton, JJ. Procedural History: Dismissal Nature of the Case: CIVIL - REAL PROPERTY |
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| Trial Court: |
Date of Trial Judgment: 02-12-2009 Appealed from: Bolivar County Chancery Court Judge: William Willard Disposition: Dismissed Plaintiff's Complaint to Stop Foreclosure, Confirmed Foreclosure Title in Defendant, and Ordered Plaintiff to Vacate Within Sixty Days Case Number: 2008-0394 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Perry Osborne |
PRO SE |
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| Appellee: | G. Rives Neblett, Real Estate Investor/Developer and Glenn H. Williams, Attorney and Trustee for G.Rives Neblett | GLENN H. WILLIAMS | ||
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 - Foreclosure sale - Section 89-1-55 - Publication requirements - Waiver |
| Summary of the Facts: | G. Rives Neblett foreclosed a deed of trust that had been granted to him by Perry Osborne. On the day of the foreclosure sale, Osborne unsuccessfully sought injunctive relief in chancery court. He later sought, via an M.R.C.P. 60(b) motion, reconsideration of the court’s denial of injunctive relief. This effort was likewise unsuccessful. Osborne appeals. |
| Summary of Opinion Analysis: | Osborne argues that the chancery court erred when it validated the foreclosure sale, which did not comply with the publication requirements found in section 89-1-55. Section 89-1-55 clearly requires three weeks between the first publication and the foreclosure sale. Furthermore, failure to comply with the statute’s publication requirements renders a foreclosure sale void. In this case, Neblett sold Osborne’s land on December 4, 2008, when only sixteen days had passed since the first publication. The sale could not have been legally held until December 9, 2008, twenty-one days after the initial publication. Because the sale did not comply with the publication requirements of section 89-1-55, the sale is void. Neblett argues that Osborne waived the notice issue when he failed to raise it in his initial complaint or at the hearing. However, as the statute clearly states, foreclosure sales that do not comply with section 89-1-55 are void, and Osborne’s failure to raise the issue is irrelevant because the sale is a nullity and unenforceable under the law. Furthermore, the publication requirements of section 89-1-55 may not be waived by the parties. As such, the chancery court erred in ratifying the foreclosure sale. |
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