United States District Court, S.D. Mississippi, Northern Division
ERIC L. JACKSON, Plaintiff,
BANK OF AMERICA, N.A.; RECONTRUST COMPANY, N.A.; BANK OF NEW YORK MELLON f/k/a THE BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF CWMBS 2004-R1; JOHN and JANE DOE 1; and JOHN and JANE DOES 2-100, Defendants.
MEMORANDUM OPINION AND ORDER GRANTING PARTIAL SUMMARY JUDGMENT
LOUIS GUIROLA, Jr., Chief District Judge.
BEFORE THE COURT is the Motion  for Summary Judgment filed by defendants the Bank of America, N.A., Bank of New York Mellon, and Recontrust Company, N.A. (the "Banks"). The Banks move for dismissal of plaintiff Eric L. Jackson's claims related to the foreclosure sale of his home in Jackson, Mississippi. Jackson contends the foreclosure was wrongful because he had filed a bankruptcy petition earlier that day, and because the Banks did not comply with certain terms of the Deed of Trust.
The issues have been fully briefed. After due consideration of the parties' submissions, it is the Court's opinion that the Banks have shown they are entitled to summary judgment in regard to Jackson's wrongful foreclosure claims. Jackson has waived the claims by failing to contest the foreclosure sale for three years. Additionally, the statute of limitations has run on certain of the breach of contract claims, and even if it has not, Mississippi law prohibits Jackson from bringing breach of contract claims against the Banks. Additionally, there is no question of material fact regarding Jackson's claim of violation of the implied covenant of good faith and fair dealing. However, the remaining claims against the Banks of negligent infliction of emotional distress and conversion must proceed, because the Banks did not address them in their Motion.
Facts and Procedural History
Plaintiff Eric L. Jackson filed this action in Hinds County, Mississippi Circuit Court, and it was removed to this Court. Jackson's Complaint states claims against the holder, servicer, and trustee of the Deed of Trust secured by Jackson's property (the "Banks"), and also the John and Jane Doe current occupiers of the property. Jackson alleges he purchased the property on July 2, 2003. He describes a series of transfers of the Deed of Trust between the Banks until April 15, 2010, when two events occurred: 1) Jackson filed a petition for reorganization under Chapter 13 of the Bankruptcy Code; and 2) ReconTrust sold the property at a foreclosure sale to Bank of New York Mellon.
Alleging that the Banks violated certain terms of the Deed of Trust and the automatic bankruptcy stay in foreclosing, Jackson brings the following claims against the Banks: 1) breach of contract; 2) breach of the duty of good faith and fair dealing; 3) negligence; 4) wrongful/fraudulent foreclosure; 5) negligent infliction of emotional distress; 6) conversion; 7) fraudulent conveyance; and 8) unjust enrichment.
Jackson began having trouble meeting his mortgage obligation in 2004. He sought and received four loan modifications - in September 2004, June 2005, April 2006, and December 2007. (Def. Ex. D 4-7, ECF No. 76-4). Jackson agrees that he defaulted on his mortgage loan in 2009. (Def. Ex. D 62, ECF No. 76-4). Bank of America sent Jackson a Notice of Intent to Accelerate dated July 6, 2009 informing him that payment of $3, 578.08 was required in order to reinstate his loan. (Def. Ex. D 9, ECF No. 76-4). Jackson remitted $3, 539.34 on August 25, 2009, which Bank of America credited to Jackson's account for payments due in May, June and July of 2009. (Pl. Ex. A, ECF No. 102-1). That was the last payment Jackson made toward his mortgage loan. (Def. Ex. D 64, ECF No. 76-4). He recalls a phone conversation with Bank of America at an unspecified later time, when he was informed that he could not make a partial payment, but was required to remit the entire amount due in order to bring his account current. ( Id. at 69).
Bank of America sent another Notice of Intent to Accelerate to Jackson on October 6, 2009, although he has no knowledge of receiving it. (Def. Ex. C 3, ECF No. 76-3; Def. Reb. Ex. A 79, ECF No. 108-1). Near the end of March 2010, Jackson learned from a family member that his house was to be sold at a foreclosure sale on April 15, 2010. (Def. Reb. Ex. A 81, ECF No. 108-1).
Jackson testified that he did not have the money to save his house from foreclosure. (Def. Reb. Ex. A 81-82, ECF No. 108-1). His attorney therefore filed a bankruptcy petition "in the early morning hours of April 15, 2010, " but Bank of America's agent, ReconTrust, went ahead with the sale scheduled for later that same day. (Pl. Mem. 2, ECF No. 102). Jackson called Bank of America a few days later and learned that his home had been sold.
Jackson continued to live in the home for about two years after the sale. Bank of America monitored the condition of the home and its occupancy status. (Pl. Ex. E, ECF No. 102-5). The home was occupied on most of the visits, until June 2012. After June 2012, the home was found to be vacant on each of the four subsequent monthly visits. ( Id. ). Beginning in July 2012, the power was not in use. By September 2012, Bank of America determined the property was vacant; one door had been left unlocked and the house was in disrepair. The house was secured and repairs begun. ( Id. ). Jackson testified that sometime in 2012, the Bank "took everything out of the home, " which is the basis of his conversion claim. (Def. Ex. D 106, ECF No. 76-4).
Jackson alleges that the Banks violated two HUD regulations incorporated into Paragraph 9 of the Deed of Trust when it 1) failed to notify him in a format prescribed by HUD that he was in default and that it intended to foreclose unless he cured the default; and 2) failed to have a face-to-face interview with him, or make a reasonable effort to arrange a meeting, before three monthly installments due on the mortgage were unpaid. Jackson also brings claims based on the Banks' violation of the automatic bankruptcy stay.
The Banks move for summary judgment in regard to the wrongful foreclosure-related claims against them, which are those labeled breach of contract, breach of the covenant of good faith and fair dealing, negligence, wrongful foreclosure, and fraudulent conveyance. The Banks' Motion does not address Jackson's claims for negligent infliction of emotional distress or conversion. The Court analyzes the Motion under the well-established summary judgment standard. Fed.R.Civ.P. 56(c); see generally, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 576, 586-87 (1986); Burge v. Parish of St. Tammany, 187 F.3d 452, 464 (5th Cir. 1999).
Statute of Limitations
The Banks argue that all of Jackson's claims are subject to Mississippi's three year statute of limitations, Miss. Code § 15-1-49, and as they were filed more than three years from the time the foreclosure sale was first publicly noticed, the claims are time-barred. Jackson argues that his HUD regulation claims concern conditions precedent to the foreclosure, and any ...