ODELL DORMAN, JR. AND RENODDA A. DORMAN A/K/A RENODDA DORMAN APPELLANTS
TRUSTMARK NATIONAL BANK, SUCCESSOR TO HERITAGE BANKING GROUP APPELLEE
OF JUDGMENT: 10/10/2017
COUNTY CIRCUIT COURT HON. CHRISTOPHER A. COLLINS JUDGE
ATTORNEYS FOR APPELLANTS: MARK K. TULLOS CRAIG N. ORR
ATTORNEYS FOR APPELLEE: STEPHANIE M. RIPPEE WILLIAM F. RAY
BARNES, C.J., WESTBROOKS AND LAWRENCE, JJ.
After Trustmark National Bank (Trustmark) foreclosed on Odell
and Renodda Dorman's property and evicted them from their
residence, the parties discovered that the deed of trust
(DOT) securing their consumer loan agreement did not contain
a legal description for the six acres on which the residence
was located. The Dormans moved back into the home, and
Trustmark filed suit in the Leake County Circuit Court for
the remaining loan deficiency. The Dormans counterclaimed
that Trustmark had wrongfully foreclosed on their home, and
Trustmark moved to amend its complaint to assert an
affirmative defense of mutual mistake, which the court
granted. Trustmark subsequently filed a motion for summary
judgment, alleging that the parties had intended for the
Dormans' residence to be included in the DOT, and the
bank requested a reformation of the deed for mutual mistake.
Granting summary judgment, the circuit court ordered that the
DOT be reformed to reflect the legal description for the
residential property and awarded Trustmark a deficiency
The Dormans argue on appeal that the court did not have
subject-matter jurisdiction to reform the DOT and erred in
granting the motion for summary judgment, reforming the DOT,
and awarding a judgment for the loan deficiency. Although we
find the court had jurisdiction to consider the bank's
claims, we conclude that there is a genuine issue of material
fact as to whether the Dormans intended to pledge the
residential property as security for the loan, and we reverse
the court's judgment and remand for further proceedings.
Accordingly, we find the court erred in reforming the DOT and
in awarding a deficiency judgment against the Dormans.
AND PROCEDURAL HISTORY
The Dormans owned several parcels of land in Leake County,
Mississippi. In April 1999, they obtained a loan for $80, 462
from Carthage Bank. The loan was secured by a DOT for certain
parcels of land, which included the Dormans' residence
located on approximately six acres at 723 Highway 487,
Carthage, Mississippi. In March 2004, the Dormans
consolidated the 1999 loan with other loans to lower their
monthly payments. Although the bank's loan application
listed the "residence" under "Collateral
Offered or Purchased," the DOT securing the loan did not
contain a legal description of the six acres on which the
home was located.
On April 14, 2005, the Dormans executed another consolidated
loan agreement for $164, 720.66 with Heritage Banking Group,
Trustmark's predecessor in interest. The agreement stated
that the loan was:
Secured by Deed of Trust of even date herewith on real estate
located in Section 31 Township 10 North Range 9 Leake County
Mississippi being more particularly described in said
Deed of Trust; One (1) 1997 Toyota 4 Runner[, ] Serial
No. JT3GM84R8V001619J; 11 Shares Bank of Walnut Grove Stock
evidenced by Certificate No. 472 in the name of Renodda
Dorman or Odell Dorman.
(Emphasis added). The DOT for the 2005 loan did not contain a
legal description of the six acres on which the Dormans'
house was located.
When the Dormans became delinquent on their loan payments,
Trustmark's attorney, Mark Mayfield, sent a foreclosure
letter on October 25, 2013, stating in part:
If you are the former owner, child, or spouse of former
owner: Your home sold at foreclosure and you no longer own
the property. The premises must be vacated no later
[than] Thursday, October 31, 2013.
Please immediately move out and remove the house of all
contents. Lock doors and windows. Send this office the keys
and garage door openers. Let us know the date that you'll
be out, and we will change the locks.
If you fail to comply, the new owner has asked us to file an
eviction lawsuit directing the Sheriff to forcibly remove you
and your belongings. Expect a Deputy Sheriff to serve you
with a summons to appear in court.
Dormans vacated the property and moved to a rental home.
After a nonjudicial foreclosure sale, Renodda's
brother-in-law contacted Trustmark in February 2014 to
inquire about buying the property. Bank personnel informed
him at that time that the DOT's legal description did not
include the dwelling and the six acres upon which it was
located; so the Dormans moved back into the house.
On May 22, 2014, Trustmark filed a complaint with the circuit
court for the remaining loan deficiency of $70, 791.99, plus
interest. There was no mention of the issue with the DOT. The
Dormans filed an answer and counterclaim, alleging wrongful
foreclosure because Trustmark knew or should have known there
was no lien on their residence. Trustmark subsequently filed
a motion to amend its complaint on May 24, 2015, asserting a
defense of mutual mistake because the loan documentation
indicated that "Trustmark believed it was obtaining the
Dormans' house as collateral for the subject loan, and
the Dormans believed they were assigning their home as
collateral for the subject loan." The ...