Deutsche Bank Nat'l Trust Co., et al. v. Brechtel


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Docket Number: 2010-CA-01794-COA

Court of Appeals: Opinion Link
Opinion Date: 01-31-2012
Opinion Author: Griffis, P.J.
Holding: Dismissed

Additional Case Information: Topic: Real property - Denial of motion for default judgment - M.R.C.P. 54(a) - M.R.C.P. 55(b) - Appealable judgment - Interlocutory appeal - M.R.A.P. 5
Judge(s) Concurring: Lee, C.J., Barnes, Roberts and Maxwell, JJ.
Non Participating Judge(s): Fair, J.
Dissenting Author : Carlton, J.
Dissent Joined By : Irving, P.J., Ishee and Russell, JJ.
Nature of the Case: CIVIL - REAL PROPERTY

Trial Court: Date of Trial Judgment: 09-13-2010
Appealed from: Harrison County Chancery Court
Judge: James Persons
Disposition: DENIED MOTION FOR A DEFAULT JUDGMENT
Case Number: C2401-10-02189(1)

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Deutsche Bank National Trust Company, as Trustee of Ameriquest Mortgage Securities, Inc., Asset Backed Pass Through Certificates, Series 2004-R11 Under the Pooling and Servicing Agreement




SEAN ALBERT SOUTHERN



 
  • Appellant #1 Brief

  • Appellee: Wilburn L. Brechtel, Jr. and Barbara Brechtel PRO SE  

    Synopsis provided by:

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    Topic: Real property - Denial of motion for default judgment - M.R.C.P. 54(a) - M.R.C.P. 55(b) - Appealable judgment - Interlocutory appeal - M.R.A.P. 5

    Summary of the Facts: In 1994, the Brechtels obtained property located in Harrison County from Hazel Louise Wilson and James J. Robinson via a warranty deed. The Brechtels recorded the deed in the land records. After acquiring the property, the Bretchels purchased a manufactured home in 1999 and placed it on the land. The Brechtels affixed the manufactured home to the property and removed the wheels and axles. On December 2, 1999, they had the manufactured home certified as real estate by the Harrison County Tax Assessor. In 2004, the Bretchels executed a deed of trust to Ameriquest Mortgage Company and, subsequently, recorded the instrument in the land records. Ameriquest then assigned the deed of trust on June 25, 2007 to Deutsche Bank, as Trustee of Ameriquest Mortgage Securities Inc. Asset Backed Pass Through Certificates, under the Pooling and Servicing Agreement. This assignment was also recorded in the land records. The deed of trust contained no reference to the manufactured home. The Bretchels defaulted on the terms and conditions of their loan. On July 17, 2008, Deutsche Bank foreclosed on the property through a non-judicial foreclosure sale. A substitute trustee’s deed conveying the property to Deutsche Bank was recorded in the land records. Deutsche Bank filed a complaint for a declaratory judgment that asked the chancellor to declare that the manufactured home was included in the foreclosure sale of the Brechtels’ property. Deutsche Bank also asked the chancellor to direct the Mississippi State Tax Commission to issue a new certificate of title to the manufactured home, listing Deutsche Bank as the owner. On June 25, 2010, the Brechtels were served with process by publication, and on June 11, 2010, “any and all persons with an interest in the property at 13509 W. Echo Drive, Gulfport, Mississippi,” were also served by publication. The MTC filed an entry of appearance, but it did not contest the complaint. On August 3, 2010, Deutsche Bank filed its motion for a default judgment, which the chancellor denied on September 13, 2010. Deutsche Bank appeals.

    Summary of Opinion Analysis: As provided by M.R.C.P. 54(a), an order that denies a motion for a default judgment under M.R.C.P. 55(b) is not a final, appealable judgment. After the chancellor denied the motion for a default judgment, Deutsche Bank had to decide whether to amend the complaint, dismiss the complaint, file a motion for summary judgment, or set the case for trial. Deutsche Bank’s attempt to appeal the denial of the motion for a default judgment is an interlocutory appeal. Interlocutory appeals are governed by M.R.A.P. 5, and no permission was requested by Deutsche Bank and none was received as required by that rule.


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