Teeuwissen v. JP Morgan Chase Bank, N.A.

894 F. Supp. 2d 903, 2012 WL 3886108, 2012 U.S. Dist. LEXIS 126504
CourtDistrict Court, S.D. Mississippi
DecidedSeptember 6, 2012
DocketCivil Action No. 3:11CV46TSL-FKB
StatusPublished

This text of 894 F. Supp. 2d 903 (Teeuwissen v. JP Morgan Chase Bank, N.A.) is published on Counsel Stack Legal Research, covering District 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
Teeuwissen v. JP Morgan Chase Bank, N.A., 894 F. Supp. 2d 903, 2012 WL 3886108, 2012 U.S. Dist. LEXIS 126504 (S.D. Miss. 2012).

Opinion

MEMORANDUM OPINION AND ORDER

TOM S. LEE, District Judge.

This cause is before the court on the motion of plaintiffs Pieter and Lisa Teeuwissen for partial summary judgment as to liability against Nationwide Trustee Services, Inc. (Nationwide) and Johnson & Freedman, LLC, and on the cross-motion of defendants Nationwide and Johnson & Freedman for summary judgment. These motions have been fully briefed and the court, having considered the memoranda of authorities, together with attachments, submitted by the parties, concludes that defendants’ motion for summary judgment should be granted and plaintiffs’ motion denied.

On December 7, 2010, after learning that a foreclosure sale of their home was scheduled for December 21, 2010, the Teeuwissens, husband and wife, commenced the present action in the Chancery Court of Hinds County, Mississippi against their mortgagee, JP Morgan Chase Bank, N.A. a/k/a Chase Home Finance, LLC (Chase), and Nationwide Trustee Services, Inc. (Nationwide), the Substitute Trustee for foreclosure, seeking to enjoin the foreclosure and additionally asserting claims for affirmative relief against Chase relating to its alleged improper handling of their mortgage loan. Although the foreclosure sale went forward as scheduled on December 21, 2010, the chancery court held a hearing on December 22, 2010 on plaintiffs’ request for injunctive relief, and on December 23, 2010, the chancellor entered an order purporting to grant “a limited preliminary (temporary) injunction” enjoining Chase “from any action against the Plaintiffs related to or in any way connected with foreclosure of the Plaintiffs’ real property.” The chancellor set a hearing on the merits for January 10, 2011; but prior to the date of the scheduled hearing, Chase removed the case to [906]*906this court on the basis of diversity jurisdiction under 28 U.S.C. § 1332, and federal question jurisdiction under 28 U.S.C. § 1331.

In the meantime, plaintiffs amended their complaint to allege claims against Chase and Nationwide for wrongful foreclosure and seeking to set aside the foreclosure; and following removal, plaintiffs sought and were granted leave to amend to add as a defendant the law firm of Johnson & Freedman, LLC, which they allege was involved in the mishandling of their mortgage and the wrongful foreclosure of their home.

In a November 17, 2011 memorandum opinion and order granting in part and denying in part Chase’s motion to dismiss,1 this court rejected plaintiffs’ challenge to Chase’s right to foreclose on their residence.2 Specifically, the court found that, contrary to plaintiffs’ contention, Chase had the right to establish an escrow account for taxes and/or property insurance on their mortgage and that plaintiffs, as a result of their failure and refusal to pay sufficient amounts to cover these escrow items, had become delinquent on their mortgage payments, entitling Chase to exercise its right to foreclose. However, the court concluded that plaintiffs had stated a claim for wrongful foreclosure based on allegations that Chase and its agents, Nationwide and Johnson & Freedman, failed to provide plaintiffs with proper notice of foreclosure and a proper accounting prior to proceeding with the foreclosure, and for breach of contract for failure to provide notice required by the deed of trust. Additionally, the court denied Chase’s motion to dismiss plaintiffs’ claims relating to defendants’ alleged violation of the chancery court’s injunction by taking certain actions following the foreclosure intended to dispossess plaintiffs of their home.

Plaintiffs have now moved for partial summary judgment on liability on their claims. Defendants Chase and Johnson & Freedman oppose this motion, and seek summary judgment on all plaintiffs’ claims against them.3

WRONGFUL FORECLOSURE

As the court wrote in its previous opinion, a wrongful foreclosure occurs under Mississippi law “when a foreclosure is attempted solely for a malicious desire to injure the mortgagor, or the foreclosure is conducted negligently or in bad faith to the mortgagor’s detriment.” Teeuwissen, 2011 WL 5593164, at *4 (citing West v. Nationwide Trustee Servs., Inc., No. 1:09CV295LG-RHW, 2009 WL 4738171, *3 (S.D.Miss. Dec. 4, 2009)). Here, plaintiffs allege that defendants conducted the foreclosure negligently or in bad faith in that they failed to provide (1) the notice of foreclosure required under the deed of trust, and also as required by the applicable Mississippi statutes controlling power of sale foreclosure; and (2) an accounting of the mortgage loan prior to the foreclosure sale of December 21, 2010.

[907]*907 Notice of Foreclosure

Plaintiffs assert that defendants failed to provide them notice of foreclosure as required under the deed of trust and notice as required by the applicable Mississippi statutes controlling power of sale foreclosure. Plaintiffs note that under the terms of the deed of trust, “if Lender invokes the power of sale, Lender shall give Borrower, in the manner provided in Section 15, notice of Lender’s election to sell the Property. Trustee shall give notice of sale by public advertisement for the time and in the manner prescribed by applicable law.” Mississippi Code Annotated § 89-1-55 provides that the sale of lands sold under mortgages and deeds of trust

shall be advertised for three consecutive weeks preceding such sale, in a newspaper published in the county, or, if none is so published, in some paper having a general circulation therein, and by posting one notice at the courthouse of the county where the land is situated, for said time, and such notice and advertisement shall disclose the name of the original mortgagor or mortgagors in said deed of trust or other contract. No sale of lands under a deed of trust or mortgage, shall be valid unless such sale shall have been advertised as herein provided for, regardless of any contract to the contrary. An error in the mode of sale such as makes the sale void will not be cured by any statute of limitations, except as to the ten-year statute of adverse possession.

In response to defendants’ summary judgment motion, and in support of their own motion, plaintiffs challenged the competency of defendants’ putative proof of posting at the courthouse, noting that the “Certificate of Posting” offered by defendants, which is signed by Matthew Lindsay and recites that he posted a Substitute Trustee’s Notice of Sale on the Hinds County Courthouse bulletin board on November 30, 2010, is unsworn. Plaintiffs argued that defendants could not possibly prevail on their motion in the absence of sworn proof that a notice of sale was properly posted at the courthouse. They also contended that irrespective of the competency of defendants’ proof, their own sworn evidence tends to show that notice was not properly posted so that at the very least, defendants are not entitled to summary judgment. Specifically, plaintiffs presented an affidavit from a witness attesting that she checked the bulletin board at the Hinds County Courthouse on December 7, 2010, i.e., a date within twenty-one days of the December 21 foreclosure date, and found no notice of sale relating to the Teeuwissen residence.4

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Bluebook (online)
894 F. Supp. 2d 903, 2012 WL 3886108, 2012 U.S. Dist. LEXIS 126504, Counsel Stack Legal Research, https://law.counselstack.com/opinion/teeuwissen-v-jp-morgan-chase-bank-na-mssd-2012.