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Pagador v. Trustmark National Bank

Court of Appeals of Mississippi

August 29, 2017

TONY L. PAGADOR APPELLANT
v.
TRUSTMARK NATIONAL BANK APPELLEE

          DATE OF JUDGMENT: 05/17/2016

         HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT HON. ROGER T. CLARK TRIAL JUDGE

          ATTORNEYS FOR APPELLANT: TIMOTHY BROWN WILLIAM JOSEPH KERLEY

          ATTORNEYS FOR APPELLEE: WILLIAM "TREY" JONES III WILLIAM DEMENT DRINKWATER TAYLOR BRANTLEY MCNEEL

         EN BANC

          LEE, C.J.

         ¶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 "[r]ider" and incorporated an addendum from the Department of Veteran Affairs (VA) guaranteeing the loan, as Pagador 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, Pagador's mother, alleged that James Hodges, a 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 Trustmark 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 ...


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