Tony L. Pagador v. Trustmark National Bank

225 So. 3d 571, 2017 WL 3720737, 2017 Miss. App. LEXIS 518
CourtCourt of Appeals of Mississippi
DecidedAugust 29, 2017
DocketNO. 2016-CA-00879-COA
StatusPublished

This text of 225 So. 3d 571 (Tony L. Pagador v. Trustmark National Bank) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tony L. Pagador v. Trustmark National Bank, 225 So. 3d 571, 2017 WL 3720737, 2017 Miss. App. LEXIS 518 (Mich. Ct. App. 2017).

Opinions

LEE, C.J.,

FOR THE COURT:

¶ 1. Tony Pagador appeals the judgment of the Harrison County Circuit Court granting Trustmark National Bank’s motion for summary judgment arising from the foreclosure of Pagador’s home. Following a de novo review, we affirm.

FACTS AND PROCEDURAL HISTORY .

¶ 2. In 2006, Pagador purchased a home at 13429 .Libby Lane in Gulfport, Mississippi. To purchase the home, Pagador entered into a deed of trust with T. Graham Mortgage Inc., which was secured with a promissory note. The deed of trust contained a “[rjider” and incorporated an addendum from the Department of Veteran Affairs (VA) guaranteeing the loan, as Pa-gador was a veteran with the United States Coast Guard. T. Graham Mortgage assigned the deed of trust to Trustmark National Bank.

¶ 3. Pagador made .timely mortgage payments on the loan up until June 2010, when he learned that the house contained toxic Chinese drywall. Pagador and. his family then moved out of the home so that remedial work could be performed on the house. He asked Trustmark for a forbearance from monthly loan payments for the period of time he and his family were' not living in the home while repairs were being made. Trustmark offered Pagador a special VA forbearance and informed him by letter, which he signed and returned, that his loan was in forbearance from July 1, 2010, through December 31, 2010. The letter further specified that after December 31, 2010, Pagador would “be required to pay the total amount past due for the period of time in which no payments were made .... ”

¶ 4. In May 2011, Pagador requested an additional forbearance period because the drywall repair was still not complete. Trustmark issued a second forbearance period, which the parties agree ended August 31, 2011. In September 2011, Pagador requested a third forbearance period because the drywall remediation was still not complete. In an email to Trustmark dated February 13, 2012, Karla Pagador, Paga-dor’s mother, alleged that James Hodges, [574]*574a VA representative, had verbally advised Pagador that Trustmark had extended the forbearance until March 7, 2012. However, there was no' communication, documentation, or other evidence indicating Trust-mark had granted a third or extended forbearance. Rather, Pagador was notified by substitute trustee, Gerald Warren, via certified mail dated February 10, 2012, that Trustmark was foreclosing on the home.

¶ 5. Specifically, the notice letter stated that “Trustmark National Bank [had] previously notified [Pagador] by certified mail that the above referenced loan [was] in default and declared all of the indebtedness secured by [the deed of trust] ... to be due and owing.” The notice advised that Warren had been instructed to initiate foreclosure proceedings and stated that the foreclosure was scheduled for March 22, 2012. The notice further provided that “[i]n order to cure the default and reinstate the loan, the amount of $21,585.75 is due .... ” Finally, the notice advised that the loan* must be reinstated or paid in full prior to the day of sale, and if not reinstated or paid in full, then the foreclosure sale would proceed as indicated.

¶ 6. It is undisputed that Pagador made no mortgage payments after June 2010. Pagador did not cure the default, and neither did he object to the foreclosure. On March 22, 2012, Trustmark foreclosed on Pagador’s home. Pagador now appeals.

STANDARD OF REVIEW

¶ 7. This Court employs a de novo standard when reviewing a circuit court’s grant of summary judgment. Blanchard v. Mize, 186 So.3d 403, 405 (¶ 11) (Miss. Ct. App. 2016) (citing In re Admin. of Estate of May, 32 So.3d 1227, 1229 (¶ 5) (Miss. Ct. App. 2010)). Summary judgment should be granted where “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as tb any material fact and that the moving party is entitled to a judgment as a matter of law.” Id. (quoting M.R.C.P 56(c)). We must examine all of the evidence before the trial court in the light most favorable to the nonmoving party. Id. “The party opposing the motion may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in Rule 56, must set forth specific facts showing that there is a genuine issue for trial.” Id. (quoting Estate of May, 32 So.3d at 1229 (¶ 5) (quoting M.R.C.P. 56(e))). “Bare assertions are not enough to avoid summary judgment .... ” Lott v. Purvis, 2 So.3d 789, 792 (¶ 11) (Miss. Ct. App. 2009) (internal quotations and citations omitted).

DISCUSSION

¶8. Pagador argues that the circuit court erred in granting Trustmark’s motion for summary judgment. Specifically, Pagador asserts there is a genuine issue of material fact regarding (1) whether Paga-dor was in default at the time Trustmark foreclosed on his home and (2) whether Trustmark breached the contract by failing to follow the conditions precedent specified in the deed of trust and the VA regulations and guidelines prior to foreclosing on Pagador’s home.

I. Default

¶ 9. Pagador claims he was not in default at the time Trustmark foreclosed because he was in a special VA forbearance. However, Trustmark met its burden of showing an absence of a genuine issue of material fact with respect to this claim. The record shows and the parties agree that Pagador was granted two forbearance periods: one from July 1, 2010, through December 31, 2010, and a second from [575]*575May 2011 through August 31, 2011. Paga-dor now claims in his brief on appeal that the forbearance “was extended up until on or about March 7, 2012,” and again that “his special VA forbearance period was repeatedly extended all the way up to the March 22, 2012 foreclosure sale.” But, apart from his bare assertions, Pagador provided no evidentiary support for this claim.

¶ 10. The Mississippi Supreme Court has held that “other than undenied allegations in the party’s pleadings and [Mississippi Rule of Civil Procedure] 36 admissions, all material submitted in opposition to summary judgment must be sworn.” Handy v. Madison Cty. Nursing Home, 192 So.3d 1005, 1010 (¶ 16) (Miss. 2016). As such, the email in which Paga-dor’s mother, a nonparty, asserts that Hodges, also a nonparty, purportedly told Pagador that a third forbearance had been approved is improper summary-judgment evidence. Pagador failed to produce any documentation, affidavits, or otherwise proper summary-judgment evidence to support his claim that he was still in forbearance. In fact, neither Pagador’s complaint nor his affidavit claims that a third or extended forbearance was ever granted.

¶ 11. Under the terms of the promissory note, Pagador was in default when he failed “to pay the full amount of each monthly payment on the date it [was] due.” The facts clearly show that Paga-dor’s last mortgage payment was made in June 2010 and that his final forbearance period ended August 31, 2011. As such, it is clear there is no genuine issue regarding whether Pagador was in default at the time of the foreclosure on March 22, 2012. This issue is without merit.

II. Breach of Contract

¶ 12. Pagador also asserts that Trust-mark breached the parties’ contract by failing to comply with VA regulations and guidelines by extending the time period for foreclosure and by failing to provide him with proper notice of acceleration prior to foreclosure.

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Bluebook (online)
225 So. 3d 571, 2017 WL 3720737, 2017 Miss. App. LEXIS 518, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tony-l-pagador-v-trustmark-national-bank-missctapp-2017.