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Wright v. Henley

Court of Appeals of Mississippi

August 12, 2014

RICO WRIGHT AND ALANNA WRIGHT, APPELLANTS
v.
TERRY HENLEY, CHRISTINE MENDEZ HENLEY, DEUTSCHE BANK NATIONAL TRUST COMPANY, TRUSTEE ON BEHALF OF CERTIFICATE HOLDERS OF MORGAN STANLEY, ABS CAPITAL I, INC., IXIS2005-HE22 BY COUNTRYWIDE HOME LOANS, INC., ATTORNEY IN FACT AND FIRST AMERICAN TITLE INSURANCE COMPANY, APPELLEES

COURT FROM WHICH APPEALED: HINDS COUNTY CHANCERY COURT. DATE OF JUDGMENT: 08/02/2012. TRIAL JUDGE: HON. J. DEWAYNE THOMAS. TRIAL COURT DISPOSITION: MOTION TO ALTER OR AMEND GRANTED IN PART AND DENIED IN PART.

FOR APPELLANTS: DAVID NEIL MCCARTY.

FOR APPELLEES: SUSAN D. MCNAMARA, JAMES ELDRED RENFROE, JOHN R. MCNEAL JR., ROY J. PERILLOUX.

BEFORE IRVING, P.J., ISHEE AND ROBERTS, JJ. LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON AND MAXWELL, JJ., CONCUR. JAMES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. FAIR, J., NOT PARTICIPATING.

OPINION

Page 1167

ROBERTS, J.

¶1. At issue in this appeal is a dispute over three pieces of property with a duplex on each piece of property, all located in Hinds County, Mississippi. Terry and Christine Henley, the original owners of the property, sought relief in the Hinds County Chancery Court following the foreclosure sale of one piece of their property that, due to an error in the legal description of the property, appeared to convey all three pieces of property to Rico and Alanna Wright. The Henleys were granted

Page 1168

relief, and the Wrights appeal, arguing that the chancery court erred in reforming the deed in favor of the Henleys and awarding the Henleys damages. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. In 2004, the Henleys purchased three duplexes on Myer Avenue in Jackson, Mississippi. The addresses of these duplexes are 444/446 Myer Avenue, 450/452 Myer Avenue, and 454/456 Myer Avenue. The Henleys financed each duplex separately using three different financial institutions. People's Choice Home Loan provided the Henleys financing for the 450/452 Myer Avenue duplex; Encore Credit Corporation provided financing for the 444/446 Myer Avenue duplex; and New Century Mortgage Corporation provided financing for the 454/456 Myer Avenue duplex. Attorney Dale Schwindaman conducted the closing on the three loans, and he prepared a deed of trust for each duplex; however, the legal description attached to each deed of trust describes all three duplexes. Schwindaman testified at his deposition that " [t]here were three sets of duplexes that were contained on this same legal description. We erroneously attached the same legal description to all three of the deeds of trust . . . ." [1]

¶3. People's Choice assigned its deed of trust in 450/452 Myer Avenue to Deutsche Bank National Trust Company. And in January 2007, this deed of trust was foreclosed, and the incorrect legal description was included in the substitute trustee's deed to Deutsche/Countrywide. Shortly thereafter, Select Realty was chosen as the marketing broker for the 450/452 Myer Avenue duplex. Select Realty realtor Thomas Washington listed that duplex on the Multiple Listing Service (MLS) listing and placed a " For Sale" sign in front of only that duplex. The 450/452 Myer Avenue duplex was the only one of the three duplexes that had a lock box. Washington did not list the other two duplexes on the MLS or place signs in front of them.

¶4. The Wrights put in an offer of $49,500 to buy the listed property, and the offer was accepted. The Wrights issued a $1,000 check to Select Realty as earnest money for the 450/452 Myer Avenue duplex. However, after executing the contract and paying earnest money, the Wrights discovered that the taxes on the property were higher than they expected. They learned that the property description in the deed of trust actually described all three duplexes. No evidence exists in the record indicating that the Wrights hired an attorney prior to closing to check title on the duplex they intended to purchase. The Wright transaction closed on October 31, 2007. Thinking they now owned all three duplexes, the Wrights began accepting rental payments from all three duplexes.

¶5. The Henleys then filed a motion to set aside the foreclosure, to set aside the substitute trustee's deed and special warranty deed, and a request for injunctive relief and damages. The Henleys also filed an emergency motion for a temporary restraining order. The order was granted and ordered the Wrights to put all rents collected from the tenants, from the date of the foreclosure, into the chancery court's registry. ...


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