Longstreet, et al. v. Bankfirst Financial Serv.
| Docket Number: | 2010-CA-01998-COA Linked Case(s): 2010-CA-01998-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 06-05-2012 Opinion Author: Ishee, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Contract - Foreclosure - Reasonable expenses - Attorney's fees - Section 75-9-610(a) - Deficiency judgment - Interest rate - Affirmative defense Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Barnes, Roberts, Carlton, Maxwell, Russell and Fair, JJ. Procedural History: Summary Judgment Nature of the Case: CIVIL - CONTRACT |
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| Trial Court: |
Date of Trial Judgment: 11-12-2010 Appealed from: Clay County Circuit Court Judge: JamesT. Kitchens, Jr. Disposition: SUMMARY JUDGMENT GRANTED IN FAVOR OF APPELLEE Case Number: 2010-0019 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Eddie Longstreet d/b/a EL and GT Properties, LLC and Gary Turner d/b/a EL and GT Properties, LLC |
MARK ANDREW CLIETT
BENNIE L. JONES JR. |
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| Appellee: | Bankfirst Financial Services | THOMAS L. SEGREST |
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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: | Contract - Foreclosure - Reasonable expenses - Attorney's fees - Section 75-9-610(a) - Deficiency judgment - Interest rate - Affirmative defense |
| Summary of the Facts: | Eddie Longstreet d/b/a EL and GT Properties LLC and Gary Turner d/b/a EL and GT Properties LLC executed a promissory note payable to BankFirst Financial Services to secure a loan of $39,124. As collateral, the Appellants executed a deed of trust in favor of BankFirst for real property located in Clay County. In addition, they each executed personal guaranties. After the Appellants defaulted on the promissory note, BankFirst foreclosed on the collateral. At the foreclosure sale, BankFirst purchased the property for $27,000. BankFirst incurred $1,069.68 in fees and expenses in connection with the foreclosure. The $1,069.68 was deducted from BankFirst’s purchase price, rendering a total of $25,930.32, which was credited to the Appellants’ remaining loan debt. After crediting their loan account, the total amount left payable on the loan was $20,570.84. BankFirst filed a complaint in the circuit court requesting a deficiency judgment for the remaining $20,570.84. In the complaint, BankFirst also asked for attorney’s fees related to the foreclosure and interest on the remainder of the loan to be compounded at 8.79% annually. BankFirst filed a motion for summary judgment. The Appellants filed a response to the motion arguing the fees and costs associated with the foreclosure sale, the amount of attorney’s fees, and the interest rate requested were unreasonable. They also filed supporting affidavits claiming Pete Hodo, a BankFirst loan officer, misrepresented significant information about the nature of the foreclosed property. The trial court granted BankFirst’s motion for summary judgment, and the Appellants appeal. |
| Summary of Opinion Analysis: | The Appellants argue that the trial court erred by granting summary judgment. Section 75-9-610(a) provides that after default, a secured party may sell, lease, license, or otherwise dispose of any or all of the collateral in its present condition or following any commercially reasonable preparation or processing. When distributing any proceeds from the disposition, the proceeds will be applied first to the reasonable expenses of retaking, holding, preparing for disposition, processing, and disposing, and, to the extent provided for by agreement and not prohibited by law, reasonable attorney's fees and legal expenses incurred by the secured party. Accordingly, BankFirst was entitled to receive reasonable expenses and attorney’s fees associated with the foreclosure. The Appellants argue the amount of expenses and attorney’s fees associated with the foreclosure sale were unreasonable. However, simply stating these fees were unreasonable is insufficient to establish a genuine issue of material fact. They Appellants failed to provide any evidence whatsoever to support their argument. The Appellants also dispute the interest rate applied to the deficiency judgment. However, the parties agreed in the promissory note to “pay interest on the unpaid balance of this note owing after maturity, and until paid in full . . . on the same fixed or variable rate basis in effect before maturity.” The rate applied in the promissory note was 8.79%. Because the parties had agreed previously to an 8.79% interest rate, that rate was properly applied to the judgment in this case. The Appellants also argue that the trial court erred by finding they failed to submit evidence in support of their affirmative defense. The only evidence they presented to support this defense was their own affidavits asserting that Hodo had provided an incorrect description of the property, which misled a potential purchaser and contributed to their financial loss. These affidavits standing alone are insufficient to support their defense. |
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