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KAISER INVESTMENTS, INC. v. HOWARD Q. DAVIS

JANUARY 18, 1989

KAISER INVESTMENTS, INC.
v.
HOWARD Q. DAVIS, JR., AS TRUSTEE AND AGENT FOR VIRGINIA BOB MAHAFFEY, ARTHUR OWEN RINGOLD, POWELL D. MAHAFFEY, JR., ARTHUR J. MAHAFFEY, BARBARA ANN MAHAFFEY BELL, ARTHUR OWEN RINGOLD, JR. AND CYNTHIA LOUISE RINGOLD



BEFORE ROY NOBLE LEE, C.J.; ROBERTSON AND ANDERSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

This case concerns the legality of a fee sought to be charged by the trustee in a land deed of trust, but who is also an attorney, incident to a foreclosure which was commenced but never consummated. We hold that fees may be allowed only as provided by the contract documents. Because the Court below failed to respect this premise, we reverse and remand.

 II.

 Kaiser Investments, Inc., a Mississippi corporation, is the owner of approximately 1410 acres of land situated in Sunflower County, Mississippi, by warranty deed of August 19, 1980. At the time of its acquisition of this land, Kaiser assumed all obligations under an outstanding promissory note held by Virginia Bob Mahaffey, Arthur Owen Ringold, Powell D. Mahaffey, Jr., Arthur J. Mahaffey, Barbara Ann Mahaffey Bell, Arthur Owen Ringold, Jr. and Cynthia Louise Ringold. The note provided for $70,000.00 payments each year on January 6 with a final balloon payment on the tenth anniversary of the note, January 6, 1988. In language the importance of which will presently appear, the promissory note reads:

 In the event of failure to pay this note or any installment thereof at maturity, or when it becomes due and exigible under any of the provisions hereof

 or otherwise, and of the same being placed in the hands of an attorney at law for collection, the maker, endorser, and sureties agree to pay, in addition to principal and interest, reasonable attorney's fees.

 Performance of all obligations under the promissory note was secured by a deed of trust under which title to the property was held by Howard Q. Davis, Jr., as Trustee for the Mahaffeys and Ringolds. The deed of trust contains the following provision of consequence here:

 Out of the proceeds arising from said sale, the costs and expenses of executing the Deed of Trust, including a ten (10%) percent trustee's fee, which is hereby agreed to be a reasonable trustee's fee, and the attorney's fee prescribed in said note or notes shall first be paid, next the amount of said indebtedness then remaining unpaid shall be paid . . . .

 On January 4, 1988, two days before the balloon payment was due, an employee of Kaiser's management company called Davis to ask if Kaiser could wire the money, rather than get certified funds. Davis agreed, and mentioned that the amount due was approximately $578,000.00, which" surprised "the employee, who" thought it was another $70,000.00 or in that range. "That same day Alton Turnipseed, attorney and Vice President for Kaiser, called Davis to tell him the funds were not currently available, but ultimately would be.

 After the January 4 phone conversation, Davis sent a letter to Turnipseed enclosing a copy of the amortization schedule and relevant documents, with the following closing paragraph:

 If payment is not timely received or if you cannot inform me that payment is on the way sufficient to be here not later than noon, Friday, January 8th, 1988, this note will be declared in default, and we will begin efforts to insure collection which will also cause attorneys fees to accrue in accordance with the terms of the note.

 The letter did not reach Kaiser until Friday noon on January 8th, 1988.

 Kaiser did not make the balloon note payment on or before January 6, 1988. On January 11, 1988, Trustee Davis ...


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