Stinson v. Nichols (In re Crosby)

185 B.R. 28, 1993 Bankr. LEXIS 1894
CourtUnited States Bankruptcy Court, S.D. Mississippi
DecidedMay 7, 1993
DocketBankruptcy No. 91-01357JC; Adv. No. 91-0176JC
StatusPublished
Cited by2 cases

This text of 185 B.R. 28 (Stinson v. Nichols (In re Crosby)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stinson v. Nichols (In re Crosby), 185 B.R. 28, 1993 Bankr. LEXIS 1894 (Miss. 1993).

Opinion

MEMORANDUM OPINION

EDWARD ELLINGTON, Chief Judge.

This adversary proceeding came on for trial upon the Complaint of Marvis M. Stin-son and Judith R. Stinson, wherein the Stin-sons seek a determination by this Court of the proper disposition of funds generated by the foreclosure of the Debtors’ home, upon which the Stinsons hold a third deed of trust. After considering the stipulation of the parties, the evidence presented at trial, together with arguments of counsel, the Court holds that the Stinsons are entitled to have their note secured by the third deed of trust satisfied out of the surplus remaining from the foreclosure proceeds after Omnibank’s note secured by the second deed of trust and costs of foreclosure are satisfied. In so holding, the Court makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

On December 21, 1989, the Debtors, Elton B. Crosby and Betty A. Crosby purchased from the Stinsons a home located in Hinds County, Mississippi. As part of the purchase price for the home, the Crosby’s assumed a promissory note in favor of Kimbrough Investment Company. The promissory note was secured by a first deed of trust on the home.

Also in connection with the purchase of the home, the Crosby’s executed two additional notes and deeds of trust on the same date. The Crosby’s executed one promissory note in the amount of $25,257.50 in favor of Omni-bank. The note was secured by a second deed of trust on the home, which was recorded on December 28,1989, in the Office of the Chancery Clerk of Hinds County, Mississippi. The Crosby’s also executed a promissory note in the amount of $35,000 in favor of the Marvis and Judith Stinson. This note was secured by a third deed of trust on the home, and also was recorded on December 28, 1989 in the Office of the Chancery Clerk of Hinds County, Mississippi.

On January 12,1990 the Crosby’s executed an additional promissory note in favor of Omnibank in the amount of $30,007.50. The note states that the purpose of the loan was for working capital. In order to secure the note the Crosby’s granted a fourth deed of trust on the home. The deed of trust was recorded on January 20,1990 in the Office of the Chancery Clerk of Hinds County, Mississippi.

Finally, on June 1, 1990 the Crosby’s executed a third promissory note in favor of Omnibank in the amount of $65,265 along with a fifth deed of trust on the home. On its face, the note states that its purpose was to combine the purchase money note, the working capital note, and an additional note that is not in issue. The deed of trust was recorded on June 27,1990 in the Office of the Chancery Clerk of Hinds County, Mississippi.

On April 3, 1991 the Crosby’s filed a joint petition for relief under Chapter 7 of the Bankruptcy Code, and on April 16, 1991 an order was entered lifting the automatic stay [30]*30as to Omnibank, and abandoning the home from the estate.

Upon the stay being lifted the Substituted Trustee under the second deed of trust, James E. Lambert, commenced foreclosure proceedings pursuant to applicable Mississippi law. A foreclosure sale was conducted by the Trustee on June 4, 1991, at which time Omnibank purchased the property with a bid of $56,000. A Substituted Trustee’s Deed was executed conveying the property to Om-nibank, and was recorded on June 4, 1991 in the Office of the Chancery Clerk of Hinds County, Mississippi.

From the proceeds of the foreclosure sale, the Trustee paid $39,352.59 to Kimbrough Investment, fully satisfying the indebtedness secured by the first deed of trust on the property. With the remaining sale proceeds, the Trustee partially satisfied Omnibank’s December 21, 1989 note secured by the second deed of trust.

The Stinson’s then commenced this adversary proceeding, seeking an accounting from the Trustee of the disposition of the foreclosure sale proceeds. The Stinsons claim the Trustee is required to pay their note secured by the third deed of trust out of any surplus remaining of the $56,000 foreclosure sale proceeds after paying off Omnibank’s December 21, 1989 purchase money note secured by the second deed of trust and after paying costs of foreclosure.

CONCLUSIONS OF LAW

No dispute exists as to the priority of liens on the property. As set forth above, the deeds of trust on the property were perfected in the following order:

1st Deed of Trust Kimbrough Investment

2ndDeed of Trust Omnibank

3rd Deed of Trust Stinsons

4th Deed of Trust Omnibank

5th Deed of Trust Omnibank

The Stinsons acknowledge that the Trustee was required to satisfy Omnibank’s December 21, 1989 note, secured by the second deed of trust, out of the $56,000 foreclosure sale proceeds. However, the Stinsons claim the Trustee had no authority to satisfy Kim-brough Investment’s note secured by the first lien, and instead was required under Mississippi law to apply any amount remaining after satisfying Omnibank’s December 21, 1989 note secured by the second lien and costs of foreclosure to the Stinsons’ note secured by the third lien.

Omnibank argues that the Trustee acted correctly in satisfying the indebtedness secured by the first deed of trust from the sale proceeds. Omnibank further argues that even if the Trustee was not required to pay the indebtedness secured by the first deed of trust, there still would be no equity to which the Stinsons would be entitled since Omni-bank’s second deed of trust contains both a “future advance” clause and a “dragnet” clause, which effectively secured the entire $66,408.78 due under the three notes held by Omnibank.

As to the appropriate disposition of the foreclosure sale proceeds, two issues must be addressed by this Court. The first is whether the Trustee had the authority to satisfy the indebtedness secured by the first deed of trust from the foreclosure sale proceeds. The second issue is whether the “future advance” clause and the “dragnet” clause contained in Omnibank’s second deed of trust operate to secure the Crosby’s entire indebtedness under the three promissory notes set forth above.

In addressing the foregoing issues, the Court must look to Mississippi law. While federal law is controlling as to bankruptcy proceedings, state law must be applied in determining the property rights of creditors. Butner v. U.S., 440 U.S. 48, 54, 99 S.Ct. 914, 917-18, 59 L.Ed.2d 136 (1979); See also Mutual Benefit Life Ins. Co. v. Pinetree, Ltd. (Matter of Pinetree, Ltd.), 876 F.2d 34, 36 (5th Cir.1989).

AUTHORITY TO SATISFY DEBT SECURED BY SENIOR LIEN

“The general rule is that, where a surplus remains after satisfying a senior mortgage, it should be applied on the junior mortgage.” Great Southern Land Co. v. Valley Securities Co., 162 Miss. 120, 137 So. 510, 514 (1931).

The Mississippi Supreme Court in Reese v. Ivey, 324 So.2d 756 (Miss.1976) considered [31]*31the exact issue before this Court, namely, whether a trustee foreclosing under a second deed of trust must satisfy the first deed of trust out of the foreclosure sale proceeds.

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Related

In re Windham
568 B.R. 263 (N.D. Mississippi, 2017)
In Re Smink
276 B.R. 156 (N.D. Mississippi, 2001)

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Bluebook (online)
185 B.R. 28, 1993 Bankr. LEXIS 1894, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stinson-v-nichols-in-re-crosby-mssb-1993.