IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2015-CA-01520-COA IN RE: THE ESTATE OF NORAIR AVAKIAN, DECEASED: BURNETTE AVAKIAN, EX ECUTRIX APPELLANT

v. WILMINGTON TRUST NATIONAL ASSOCIATION, AS SUCCESSOR TRUSTEE TO CITIBANK, N.A., AS TRUSTEE FOR BEAR STEARNS ASSET BACKED SECURITIES TRUST 2007-2, ASSET-BACKED CERTIFICATES, SERIES 2007-2 AND JP MORGAN CHASE BANK, N.A. APPELLEES

DATE OF JUDGMENT: 09/08/2015 TRIAL JUDGE: HON. KENNETH M. BURNS COURT FROM W HICH APPEALED: LOW NDES COUNTY CHANCERY COURT ATTORNEYS FOR APPELLANT: STEVEN CRAIG PANTER DAVID L. SANDERS ATTORNEYS FOR APPELLEES: W I LLIAM JACOB LONG IV EDDIE TRAVIS RAMEY CHRISTOPHER DANIEL MEYER NATURE OF THE CASE: CIVIL - W ILLS, TRUSTS, AND ESTATES TRIAL COURT DISPOSITION: CREDITOR’S STATEMENT OF CLAIM W A S FOUND NOT TIME-BARRED DISPOSITION: AFFIRMED - 04/11/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. CARLTON, J., FOR THE COURT: ¶1. Norair A vakian died July 19, 2010. On July 28, 2010, the Lowndes County Chancery
Court entered an o r der probating Norair’s last will and testa me n t a nd issued letters

testam entary to his w idow, Burnette A vakian, to serve as executrix of Nor a i r’s estate(“Estate”). Three s e parate lawsuits were f iled as a r esult o f attem

pts by c r editors to f

oreclose

on Norair’s property and seek dam ages based o n the def ault of a prom i ssory n ote that Norair
executed prior to his d e ath. W e will f i rst provide a brief p rocedural history of the m atter in
the probate case bef

ore us on a

ppeal. W e will then provide a m ore in-depth d iscussion of the
relevant m atters involving the t hree separate actions f iled a gainst the Estate and the executrix, Burnette, in the f a cts section below. ¶2. On October 1 5, 2014, J.P. Morgan C hase Bank N .A. (“J.P. M organ”) f iled a statem ent of claim against t he E state in the chancery c ourt based upon Norair’s d ebt arising f rom a
prom issory note of $815,905.06. J.P. Morgan, a s t he servicer of the loan resulting f rom the
prom iss o r y note, f

iled the statem e nt of claim on behalf of Citibank N.A. (“Citibank”), the
creditor. In the p robate action, on January 30, 2015, Burnette, a s executrix, f iled her contest of J.P. Morgan’s statem e nt o f claim , asserting that any claim on the pr om i ssory note was tim e-barred by Mississippi Code Annotated section 15-1-25 (Rev. 2012), and that pursuant
to Mississippi Code Annotated section 1 5

- 1 -3 (Rev. 2012), the underly ing claim was extinguished. On May 2 7, 2015, W ilm i ngton Trust N a tional Association (“W ilm ington Trust”), which replaced C itibank as the creditor, f iled a response to Burnette’s c o ntest of the
claim in the probate proceeding. ¶3. On June 15, 2015, the chancellor heard oral argum ent on Burnette’s c o n t e s t of the

statem ent of claim in t he probate pro c e e ding. The chancellor stated that “the sole issue
bef o r e this c ourt is w hether or not a creditor’s claim as it related to a prom issory note is

2tim e[ -]barred,” and the chancellor ultim ately f ound that although J .P. Morgan f iled i ts
statem ent of claim outside of the n inety -day statutory tim e period in which to probate a claim against the Estate p ursuant to Mississippi Code Annotated section 91-7-151 (Rev. 2013), the
claim was still tim ely f

iled in the probate act i o n d u e t o Burnette’s f ailure as e xecutrix to provide all reasonably ascertainable creditors with notice of probate of

the Estate pursuant to Mississippi Code Annotated section 91-7-145 (Rev. 2013). ¶4. Burnette n o w a

ppeals the chancellor’s judgm e nt, asserting the f ollowing assignm ents of error: (1) t he c hancellor erred in f inding t hat an o rde r f

r o m t he United States Court of Appeals f or the Fif th Circuit prohibiting a l ender f rom f oreclosing on p roperty owned by
Burnette tolled the running of the statute of lim itations on the Creditor’s 1 s t atem ent of claim regarding the p rom issory note, and (2) the chancellor erred in f inding that B urnette could not rely upon the statute of lim itations because she f ailed to m ail written notic e to creditors of the opening of

the Estate and the need to f ile a claim , pursuant to section 91-7-145(1). ¶5. The o nly is s u e b e f o r e u s on appeal is whether the claim f iled by the Creditor in the probate proceeding was tim e ly f iled. Finding no error in t he chancellor’s judgm ent that the
Creditor’s statem e nt of claim was tim e ly f iled in t he probate proceeding, we af f irm as to that
issue.
FACTS

1 F o r th e p u rp o ses o f clarity in th i s ap p eal d u e t o th e m u ltip le l aw su its an d f

ilin g s, w e w i ll ref er to E q u iF irst C o rp o ratio n , J.P

. M o rg an , C itib an k , a n d Wilm in g to n T r u st co llectiv ely as “C red ito r.” 3¶6. On Septem ber 18, 2002, Norair and h is w if e, Burnette, purchased a house l ocated in
Colum bus, Mississippi. They executed a deed of trust t o secure a l oan f or the purchase f

rom Southstar Financing LLC. The record ref lects that t itle to t he property w as v ested in both
Norair’s and Burnette’s nam es as joint tenants. ¶7. On Novem

ber 2, 2004, Norair executed a deed that convey ed t itle to t he property to
Burnette a lone t o prevent Burnette f rom bearing any l iability f or the debt should Norair die.
In March 2006, Norair and B urnette then ref inance d t h e m o r t g a g e w i th EquiFirst Corporation (“EquiFirst”). N orair t ook out a loan in his nam e only a n d executed a p r om issory note in
f avor of EquiFirst. EquiFirst required both Burnette and Norair to execute a deed of trust.
N o r air was out of state at the tim e of closing, so E quiFirst f orwarded o ne set of l o a n d o c um ents to him s o he could execute and return the docum ents. EquiFirst had B u r n e t t e execute a second set the f ollowing day . This resulted in two deeds of trust on the property

– o ne executed by Norair on March 7, 2006, and one executed by Burnette on March 8, 2006.
Each deed of t rust was recorded as a separate instrum ent with the Lowndes C ounty C hancery
Clerk. ¶8. N o r a i r ’ s prom issory note t o EquiFirst was later sold t o Citibank in its capacity a s
trustee of the Bear S terns Asset Backed Securities Trust 2007-2, A sset-Backed Certif icates,
Series 2007-2 (“Bear St e r n s ” )

. J.P. Morgan becam e the s ervicing agent f or Citibank. On
Decem ber 3, 2012, W ilm ington Trust replaced Citibank as the t rustee f or Bear Sterns. W e recognize that J.P. Morgan s erved as the servicer f or the l oan, and EquiFirst, Citibank, and

4W i lm ington Trust were the creditors.

¶9. Norair f

ell in def ault on the loan and died shortly thereaf t er on July 19, 2010. On July 28, 2010, B urnette f

iled a petition f

or probate of Norair’s last will and t estam ent. That sam e day , the chancery court e n t e r e d a n order probating the last will and testam ent and issued
letters testam entary to Burnette to serve as executrix of the E state. Burnette f ailed to identif

y
any entity as a known creditor of the Estate pursuant to section 91-7-145, and s he also f ailed

to provide the C reditor herein, or any creditor, n otice b y m ail as r equired by s ection 91-7-145 regarding the probate o f t h e Estate. The record ref l ects that Burnette did f

ile a “Notice to Creditors Af

f idavit” stating that she had and would notif y known creditors, without listing
any specif ic creditors. ¶10. The Creditor m ade its f irst attem pt at f o reclosure on the hom e a s e a rly as Decem ber
2010 but never com

pleted the process. In early 2012, the Creditor again provided Burnette
notice that it intended t o f oreclose on the house. The Creditor set the f oreclosure sale f

or May 1 0, 2012. ¶11. On May 9, 2012, the day bef ore the scheduled f

oreclosure sale, Burnette f iled suit in
the chancery court against the Creditor seeking to enjoin the f o reclosure b y contending that
the two deeds o f trust on the hom e were both void pursuant to Mississippi Code Annotated
section 89-1-29 (Rev. 2011) because neither deed contained the signatures of both Burnette
and Norair. The lawsuit was rem oved t o the United States District Court f or the Northern
District of

Mississippi.

5¶12. Following a trial, the district court entered a f inal judgm ent on February 10, 2014, in
f avor of Burnette and held that the deeds of trust on the house w e r e unenf orceable. The
Creditor appeal e d the decision to the Fif th Circuit. During t he appeal, the Fif t h Circuit
issued a stay on May 12, 2014, t h a t p rohibited f oreclosure of t he property during the pendency of the appeal. ¶13. On October 14, 2014, af ter receiving the ruling f

rom the district court, the Creditor 2
f iled a statem e nt o f claim in the probate proceeding pending in chancery court based upon Norair’s debt arising f

r om the prom issory note of $815,905.06. The statem ent of claim set
f o rth that “[ t]he claim was presum ed secured pursuant to a m ortgage l oan; however, t h e claim has been deem e d unsecured via [ the district court’s judgm ent].” ¶14. On Decem

b e r 9, 2014, the Fif

th Circuit reversed the d istrict court af ter f inding that
the M ississippi Suprem e C ourt would likely construe the two deeds of trust as t o g e t her creating a valid deed of trust and rem anded the case f or f urther proceedings. The Creditor
then f iled a m otion f

or entry of f inal judgm ent in the district court. 3

2 T h e reco r d ref

lects th at J.P

. M o rg an , as th e serv icer f o r C itib a n k , f

iled th e statem en t o f claim

.
3 D u r in g th e co u rse o f th e f ed eral actio n , Wilm in g to n T ru st su cceed ed C itib an k as th e lien h o ld er an d cred ito r o n th e p ro m isso ry n o te. In resp o n se t o th e m o tio n f o r en try o f f

i n al j u d g m en t, B u rn ette f

iled a m o t io n to d ism i ss th e act i o n , a r g u i n g th at it b ecam e m o o t o n D e cem b er 3 , 2 0 1 2 , w h en Wilm in g to n T ru st su cceed ed C itib an k as tru stee f o r th e lien h o ld er. C i tib an k resp o n d ed b y

f ilin g a m o tio n to su b stitu te. O n A u g u st 4 , 2 0 1 5 , th e d istrict co u rt en tered a f

in al j u d g m e n t in f

av o r o f Wilm in g to n T ru st an d d e n i ed B u rn e tte’s m o tio n to d ism iss. T h e d istrict c o u rt f o u n d th at B u rn ette w aiv ed h e r h o m estead -ex em p tio n rig h t, an d Wilm i n g to n T ru st, as tru stee f o r th e lien h o ld e r, co u l d f

o reclo se o n th e d e ed o f

tru st. 6¶15. In the probate action now bef ore us on appeal, the record shows that on January 30, 2015, Burnette f

i led her contest of J.P. Morgan’s s tatem ent of claim , asserting that a ny claim

on the prom issory note was tim e-barred by section 15-1-25, and that pursuan t t o section 15-1-3, the underly ing claim was extinguished. The Creditor f iled a response to Burnette’s

contest of claim on May 27, 2015. On June 1 2, 2015, B urnette f iled her R eply of Executrix. ¶16. In the m eantim e, on Feb r u a r y 2 3 , 2 0 1 5 , the C r editor f iled a s e parate suit in the chancery court aga i nst both Burnette, individually , a nd the Estate, seeking to f oreclose on the hom e and to recover dam ages against the Estate on the prom issory note. ¶17. I n J u n e 2015, the chancellor heard a rgum ents f rom t h e C r e d i t o r a n d B u r n e t t e regarding the Creditor’s statem ent of claim

. On Septem ber 8, 2015, the chancellor issued

an opinion and judgm ent in f avor of the Creditor. In his judgm ent, the chancellor stated that
“the sole issue bef

ore th i s court is whether or not a creditor’s claim as it related to a
prom issory note is tim e[

- ] b a r r e d

. The issues of w hether o r not f oreclosure proceedings
and/or deeds of trusts are valid were heard in another cause and ultim ately , by t h e f ederal
courts.” ¶18. In his judgm ent, t he ch a n c e l l o r exam ined Burnette’s argum ent t hat the Creditor’s

statem ent of claim is tim e-barr e d b e c a use the statem ent was f iled o utside the ninety -day requirem ent f

or f iling probate claim s set f

orth in section 91-7-151. T he chancellor f ound that Burnette, as executrix, f

ailed to m ail the statutorily required notice to the Creditor, who was unquestionably a reasonably ascertainable creditor at the tim e the chancery court issued

7letters testa m e ntary to Burnette. The c hancellor e xplained that “a strict and literal

interpretation of

. . . [ section] 9 1-7-145(1) m a ndates that the p rom issory note holder [ (Citibank)] be given notice b y m a il bef ore the [ ninety ] day s s pecif i ed in

. . . [ section] 91-7-
151 begins t o r

un.” The chancellor d eterm i ned that since Burnette, a s e x e c u t r i x, f ailed to provide the Creditor with p r o p e r notice of its right to f ile a claim against the E state, the October 14, 2014 statem ent of claim f iled by the Creditor was theref

ore tim e ly

. ¶19. The chancellor f

urther f ound that since Burnette received l etters testam entary on July 28, 2010, the ninety -day m oratorium on suits against an executor, provided by Mississippi
Code Annotated section 91-7-239 (Rev. 2013), expired on O c t ober 26, 2010. As a result, the
chancellor concluded that the f our-y ear statute-of

- lim itations period provided by section 15-
1-25 4 f o r a creditor t o bring a n action against an executor began to run on O ctober 26, 2010,
and expired on October 26, 2014. The chancellor f ound that “ n either [ the C reditor], nor any other party , f

iled suit against t he Estate to enf o rce the prom i ssory note prior to O ctober 26,
2014.” Although the Creditor f iled a statem ent of claim on October 1 4, 2014, the chancellor explained that “the f

i ling of a claim by a creditor is not suf f i cient to stop the running of the

statute of lim itations, even i f tim ely f iled”; rather, in order t o enf o rce its claim , the creditor

m ust b ring a lawsuit b ef

ore the f our-y ear statute of lim i tations e xpires. The chancellor ruled

4 S ectio n 1 5 -1

- 2 5 p ro v i d es a f o u r-y ear statu te o f

lim itatio n s f

o r an y actio n “ag ain st an y ex ecu to r o r ad m in istrato r u p o n an y j u d g m en t o r o th er cau se o f a ctio n ag ain st h is testato r o r in testate.” S ectio n 9 1

- 7 -2 3 9 f u r th er c o n d itio n s th at “[ a ] su it o r actio n sh a ll n o t b e b ro u g h t ag ain st an ex ecu to r o r ad m in istrato r u n til af ter th e ex p iratio n o f n in ety (9 0 ) d ay s f ro m th e d ate o f letters testam en tary

o r o f ad m in istratio n .”

8that the Credit o r ’s s tatem ent of claim was theref ore tim e-barred unless: (1) t he Creditor’s prior 2010 and 2012 f

oreclosure a ttem

pts constituted a lawsuit f or purposes o f s e ction 15-1- 25; or (2) the running of section 15-1-25 is tolled based on the Fi f t h C i r c uit’s stay on the proceedings. ¶20. The chancellor determ i ned that the f oreclosure actions of 2 0 1 0 a n d 2 012 f ailed to
constitute a lawsuit f

or the purposes of section 15-1-25. The c h ancellor f ound, however, that
the Fif th Circuit’s May 12, 2014 stay -of -proceedings order that prohibited the Creditor f rom f oreclosing on B urnette’s house b egan the tolling of section 15-1-25 as to t he p rom issory

note. The chancellor e xplained that the tolling period then ended o n either one o f two dates:
at its earliest on Decem

ber 9, 2014, when the F if t h C ircuit reversed the district c ourt or, at the l atest, on August 4 , 2015, when the district court entered its f inal judgm ent. The
chancellor held “ in e ither case, [ the Creditor] f iled its lawsuit against the Estate and [ Burnette] on February 23, 2015, less than three m onths a f ter t he Fif th Circuit reversed the trial court, and thereby

tim ely .” 5 ¶21. On October 6 , 2015, Burnette f iled a notice of appeal. She renoticed her appeal two day s later.
STANDARD OF REVIEW

5 T h e C red ito r ’s sep arate F eb ru ary 2 3 , 2 0 1 5 actio n is p en d in g b elo w a n d w as n o t b ef o r e th e ch an c ello r o n rev iew

. A s a resu lt, w e reco g n ize th e ch an cello r’s f in d in g th at th e f ed eral stay to lled th e ru n n in g o f th e statu te o f lim itatio n s u n d e r sectio n 1 5 -1 -2 5 u n til eith er D e cem b er 4 , 2 0 1 4 , o r A u g u s t 4 , 2 0 1 5

. We w ill n o t co m m en t o n th e ch an c ello r’s statem en t th at th e C red ito r’s F eb ru ary 2 3 , 2 0 1 5 law su it w as tim ely f iled u n d er sectio n 1 5 -1 -2 5

. 9¶22. This Court “will not disturb a chancellor’s f indings u nless they are m anif estly wrong, clearly erroneous, or the cha n c e l l or applied an erroneous legal standard.” Howard v. Gunnell , 6 3 So. 3d 589, 5 93 (¶8) ( Miss. Ct. App. 2011). 6 W e apply an abuse-of

- discretion standard when reviewing a chancellor’s decision. Id . (citing Creely v. Hosemann , 910 So. 2d 512, 516 (¶11) (Miss. 2005)). ¶23. “The issue of whether the applicable statute of lim itations has r u n i s a question of
law.” Stringer v. Trapp , 30 So. 3d 339, 341 (¶9) (Miss. 2010) (citing W ayne Gen. Hosp. v. Hayes , 868 S o. 2d 997, 1000 (¶11) (Miss. 2004)). “W e utilize a d e novo standard of review
when reviewing questions o f law.” Howard , 63 S o. 3d at 5 93 (¶8). The Mississippi Suprem e Court has explained that “[ t]he burden of proving an af f irm ative d ef

ense lies u

pon the party who relies upon that def

ense[ , and] . . . when a [ party ] pleads t he statute of lim itations as a
def ense and shows that the suit is thereby b arred, he has m et this burden of proof .” Jenkins
v. Pensacola Health Tr. Inc

. , 933 So. 2d 923, 927 (¶14) (Miss. 2006). ¶24. This Court has held that “[ a] probated claim m ust s u b s t a n t i a l l y c o m

p l y with the provisions of

. . . [ section] 91-7-149.” In re Estate of L ingle , 8 2 2 So. 2d 3 20, 322 (¶12) (Miss. C t. App. 2 0 02) (citing Cent. Optical M erch. Co. v. Lowe’s Estate , 2 49 M iss. 61, 71,
160 So. 2d 673, 678 ( 1964)). I n Estate o f L ingle , 8 22 S o. 2d at 322-23 (¶12), w e e xplained
that “ [ t]he written evidence or statem ent of claim m ust on its f

ace show a prim a f

acie right

to recover f

rom the estate or that liability exists on the part of the estate.” This Court f urther

6 S ee a lso In re E

sta te o f H ig h , 1 9 S o . 3 d 1 2 8 2 , 1 2 8 5 (¶7 ) (M iss. C t. A p p . 2 0 0 9 ). 1 0provided:

An adequate claim m

ust give notice that it existed a gainst t h e e state, m ust distinguish the claim w ith r easonable c e rtainty f rom all other sim ilar claim s[ ,] and m ust give inf

orm ation c o n c e r ning the nature and am ount of the dem and so that it would e nable the representative of the e state to act intelligently either in providing f

or its pay m ent or in rejecting it.
Id

. at 3 23 (¶12); see a lso T hornhill v. Thornhill , 9 0 5 S o
. 2 d 7 4 7 , 752 (¶¶14-15) (Miss. Ct. App. 2004) (addressing a determ in a t i o n o f t h e tim eliness of a probate claim where the
claim ant was a m inor, this Court explained that the question was whether the claim ant “could
prove any set of evidence that would entitle him to relief against [ the estate]”).
DISCUSSION ¶25. The sole issue bef ore us on appeal is whether the Creditor tim ely f iled its statem ent of claim against the Estate on the prom issory note in the probate proceeding. 7 W e f irst turn
to e xam ine whether the chanc e l lor erred in f inding t hat the C reditor’s October 15, 2014

statem ent of

claim was not barred. ¶26. Section 91-7-151 bars all claim s against the estate of a deceased person, whether due

or not, that were f

iled m ore than ninety day s af ter the f irst publication of notice to creditors to present their c laim

. As previously stated, the record ref

l ects that Burnette, as executrix,
f ailed in h er statutory duty pursuant to section 91-7-145(1) to provide notice to any creditors

7 S ee In re E s t a te o f P h ilya w , 5 1 4 S o
. 2 d 1 2 3 2 , 1 2 3 6 (M iss. 1 9 8 7 ) (“[ T ] h e tim e f o r an ap p eal f

o r an a d m in istrato r o r ex ecu to r u n h ap p y w ith a d ecree a llo w i n g a c o n tested claim ru n s f ro m th e d a te o f su ch d ecr e e [ an d n o t] f ro m t h e d ate o f th e d ecree f i n ally clo sin g th e estate.”). 1 1regarding the probate of Norair’s estate. W e acknowledge t hat j urisprudence and the plain

language of s e c t ion 91-7-145 theref ore ref lect that the chancellor c o rrectly f ound that the
f iling p eriod f

or probate claim s in this c ase di d n o t e x p ire since Burnette f ailed to provide
the required statutory notice to trigger the running o f t he f iling p eriod. See M iss. C ode Ann. § 9 1-7-145(1); Bankston v. First Nat’l Bank & Tr. Co. of Vicksburg , 177 Miss. 7 19, 719, 171
So. 1 8, 19-20 ( 1936). In o ur revie w o f t he l aw as applied t o t his case, we turn now to the
record. ¶27. T h e r e c ord ref

lects that on July 28, 2010, the chance r y c o u r t e n t e r e d a n o r d e r probating the last will and testam ent and issued letters testam entary to Burnette to serve as
executrix of the Estate. As stated, the Creditor f iled no statem ent of claim until October 15,
2014. In his judgm ent, the chancellor also acknowledged Burnette’s f ailure to provide the required statutory

notice to the Creditor, stating as f ollows:
Af ter the U.S. District Court deem ed the subject deeds of tr u s t i n v a l i d in February 2014, a nd f

inding itself with the p o ssibility of a n unsecured prom issory note, [ t he C reditor] f iled a S tatem ent of Claim in the E state on October 1 5, 2014. The C laim was f iled outs ide of the [ n inety ]-day statutory tim e period i n w h i c h t o probate a claim against the Estate. See M iss. Code Ann. § 91-7-151. Thus, one could argue that the claim was u n t i me l y a n d, theref ore, barred. However, W if

e , as E x ecutrix, is r equired by

. . . [ section] 91-7-145(1) to m ail notice to “reasonably ascertainable” creditors. [ In re Esta t e o f Petrick ], 6 35 So. 2d 1389, 1 393 ( Miss. 1994)

. A r e a sonably ascertainable creditor is one who is discoverable through “reasonably diligent ef

f orts.” Id

. There is no question that the prom issory note holder was a reasonably ascertainable creditor and that W if e did not m ail notice p ursuant to

. . . [ section] 91-7-145(1).
1 2A strict and literal interpretation of

. . . [ section] 91-7-145(1) m andates that the

prom issory n o te holder be g i v e n notice b y m a il b ef ore the [ ninety ] d ay s specif i ed in

. . . [ section] 91-7-151 begins to run. See In r e E state of Ladner , 911 So. 2d 673, 676 (Miss. [ Ct. App.] 2005). Having f ailed to do so in this case, this Court f i nds that the Statem ent of Claim f iled by [ the Creditor] was tim ely

. ¶28. Section 91-7-145(1) provides:
The e xecutor or adm inistrator shall m ake reasonably diligent e f f o rts t o identif

y persons having claim s a gainst the estate. Such executor o r administrator shall mail a notice to persons so identified, at their last known address, informing them that a f

ailure t o have their claim p robated and registered by the clerk of the court granting l etters w ithin ninety ( 90) days after the first publication of the notice to creditors wil l b a r s u c h claim as provided in [ Mississippi Code Annotated s] ection 91-7-151

. (Em phasis added). In Ladner , 911 So. 2d a t 676 ( ¶ 1 4 ) , this Court held that “a strict and
literal interpretation o f

. . . [ s]ection 91-7-145

. . . m a ndates t hat [ a reasonably ascertainable
creditor o f the e state] b e g i v e n notice by m ail b y t he a d m inistrator bef ore the ninety day s specif ied in

. . . section 91-7-151

. . . begins to run.” 8 See Miller v. Trs. of Jefferson Coll. , 13 Miss. 651, 662 ( Miss. 1846) (m ortgage on record provides c o nstructive n o t ice to the
adm inistrator). ¶29. The statutory tim e f or f iling a probate claim is not self -e x e c u t i n g b u t i s i n s t e a d triggered t o begin by the executrix’s statutory notice to creditors. Our jurisprudence clearly recognizes that the tim e f or f i ling a proba t e c l a i m a g ainst a n estate w ill not run against a

8 We reco g n i ze th at s ec t i o n 9 1 -7 -1 4 5 (1 ) “d o es n o t sp ecif ically allo w f

o r n o tice b y p u b licatio n as a s u b stitu te f o r actu al n o tice b y m ail; rath er, n o tice b y p u b li c a t i o n i s a req u irem en t in a d d itio n to p ro v id in g cred ito rs n o tice b y m ail.” P etrick , 6 3 5 S o
. 2 d at 1 3 9 3

. 1 3creditor where the executrix f a ils to provide the statutory notice to the credito r s t o p r e s e nt their claim s. See Miss. Code Ann. § 91-7-145(1); Petrick , 635 So. 2d a t 1394. H ence, the
tim e f or f iling a probate c laim a gainst an estat e i s n o t s e l f -executing. Estate o

f T homas v. Thomas , 883 So. 2d 1173, 1178 ( ¶ 15) (Miss. 2 004). Burnette does not contest that, as executrix, she f

ailed to p r ovide the Creditor with the required statutory notice of the probate proceeding. ¶30. Here, the record ref lects that Burnette did not identif y the Creditor or provide notice by m ail. Burnette did f

ile a “Notice to Creditors Af f idavit” stating that she had and would
notif y known creditors, but Burnette f ailed to identif

y any specif

ic creditors in the af

f idavit.
In Thomas , 883 So. 2d at 1178 ( ¶15), the suprem e c ourt addressed the tolling o f the statute of lim itations due to the f

ailure o f an adm inistratrix to p rovide notice to a known illegitim ate heir. T he T

homas court explained that the ninety -day provision of s ection 9 1-1-15 is not self

executing and “held t hat t he requirem ent t o t i mely f ile within [ ninety ] day s of f irst publication is not alway s so strictly required.” Id

. The suprem e c ourt held that “[ f ]ailure on the part of the adm inistratrix t o notif y a child of whom the adm inistra t r i x h a d a c t ual knowledge c an prevent t he [ ninety ]-day statutory bar f rom being raised against that child” concerning the need f

or the ch i l d t o r a i s e paternity c l aim s within ninety day s of the f irst publication of

notice to creditors in order to inherit f rom the decedent. Id . at 1177 (¶12). ¶31. The suprem e court has also explained: [ O]ur [ s t a t e ] c ourts a re essential to the probate proceedings i n t hat the adm inistratrix m ay only v alidly publish notice in som e newspape r , which
1 4triggers the [ n inety -]day lim it to f ile a claim pursuant to [ section] 91-7-145 and [ section] 91-7-151, af

ter f iling an af

f idavit with t he clerk of c o urt stating t hat she has ma d e r e asonably diligent ef f orts t o identif

y persons h aving claim s against t he estate and h as given noti c e b y ma i l a s required in

. . . [ section] 91-7-145[ (1)].
Petrick , 635 So. 2d at 1394. ¶32. Like the chancellor below, we f ind that an application of t he l aw to the f acts of this

case r ef l ects that the October 15, 2014 statem ent of claim f ile d i n the probate proceeding
below w as not tim e - b a r r e d b y t he Creditor’s f ailure to f ile the claim within the ninety -day requirem ent in section 91-7-151. See Price v. Clark , 21 So. 3d 509, 521 (¶27) (Miss. 2009) (recognizing t o lling ef

f ect of a f ailure to give statutory notice); Miss. C ode A nn. § 15-1-57 ( R e v. 2012). W e also f

ind no abuse of discretion in the chancellor’s f inding that sinc e Burnette f

ailed to provide notice p u rsuant to section 91-7-145(1), she is estopped f rom arguing that the statem e nt of claim is barred because the Creditor f ailed to f ile i t w ithin the ninety -day tim e lim it f

or probated claim s set f

orth in section 9 1 -7-151. W e now turn to review the chancellor’s determ ination that the statute of lim itations in the underly ing claim had not expired. ¶33. The statute of lim itations a pplicable to a creditor’s i ndependent right to bring a civil
action based on its claim on t h e prom issory note is not tolled by an untim ely f iled probate
claim

. Howev e r , a s d e t e rm ined by the chancellor herein, the statute of lim itations in such
actions can be tolled by equitable estoppel as a r es ult of a def endant’s action that prevents

1 5or delay s t he f iling of a claim

. 9 S

ee Ezell v. W

illiams , 724 So. 2 d 396, 398 ( ¶6) ( Miss. 1998) (citing I zard v. Mikell , 173 Miss. 770, 775, 163 So. 498, 499 (1935)); Douglas Parker Elec.
Inc. v. Miss. Design & Dev. Corp ., 949 So. 2d 874, 878-79 (¶¶18-19) (Miss. Ct. App. 2007). ¶34. In his judgm ent, the chancellor f ound: [ L]etters testam entary were issued to [ Burnette] on July 28, 2 010. The [ ninety ]-day m o ratorium [ under section 91-7-239] expired o n O c t ober 26, 2 010. O n that date, the f our-y ear statute of lim itation[ s ] e stablished b y [ section] 15-1-25 began to run. On October 26, 2014, the f o ur-y ear statute of lim itation[ s] expired.
It is undisputed that neither W ilm ington [ Trust], nor a ny other party , f iled suit against the Estate to enf

orce the prom issory

note prior to October 26, 2014. ¶35. The record shows that t he Creditor f iled the statem e nt o f claim on October 1 5, 2014. 10
The chancellor acknowledged that i f the C reditor is not paid on a c l aim based on the
prom issory n ote during the probate proceeding, the Creditor m ust t hen bring a separate civil
suit against the Estate to enf orce that c laim o n the prom issory n o t e b e f o r e the f our-y ear

9 C learly , a s ecu red cred ito r w ith a lien o n a d eced en t’s p ro p e rty is n o t req u ired to p resen t a p ro b ate claim in o rd er to en f o rce its lien

. S

e e G a n d y v. C itico rp , 9 8 5 S o
. 2 d 3 7 1 , 3 7 4 (¶1 2 ) (M i ss. C t. A p p
. 2 0 0 8 ) (p ro b atin g th e claim p ro tects th e m o rtg a g e e’s rig h t to claim a d ef icien cy ). H o w ev er, a secu red cred ito r w h o w ish e s to reco v er f ro m th e estate’s assets o r en f o rce a p ro b a te c laim f

o r a d ef icien cy m u st tim ely f

i le a statem en t o f claim in p ro b ate. Id

.
10 W e a ck n o w led g e t h at th e C red ito r p o s s esses th e rig h t to j u d i cial f o reclo su re o r n o n j u d icial f o reclo su re o n th e d eed o f tru st a s a sep arate av en u e o f r elief f ro m an actio n o n th e p r o m isso ry n o te a g ain st th e E state. S ee M o ssler A ccep ta n ce C o
. v. M o o re , 2 1 8 M iss. 7 5 7 , 7 6 9

- 7 0 , 6 7 S o
. 2 d 8 6 8 , 8 7 3 -7 4 (1 9 5 3 ) (ev en th o u g h a p ay e e w h o f ai l e d to tim ely p ro b ate its claim o n th e n o te o f th e d eceased w as b arred as an u n secu red cred ito r, th e p ay ee w a s en titled to reco v er th e salv a g e v alu e o f th e d estro y ed au t o m o b ile, w h ich h ad b een m o rtg ag ed to secu re th e d eb t.). 1 6s t a t u t e o f lim itations in such actions expires. 11 The chancellor also applied t he law to the

f acts of this case in determ ining t hat the statute of l im itations was tolled as to a separate civil
suit against the E s tate on the prom issory note, a n d i n f inding that the Creditor tim ely f iled
its probate c laim

. As previously stated, “[ t]he issue of whether the a p p l i c a ble statute of
lim itations has run is a question of law.” Stringer , 30 So. 3d at 341 (¶9). ¶36. In addressing the tolling of the statute of lim itations f or civil a ctions against the Estate

on the prom issory n o t e , the chancellor ultim ately held that t he f o reclosure a ctions of 2010
and 2012 f

ailed to constitute “ lawsuits” f or t he purposes of s ection 15-1-25. However, the
chancellor determ ined t hat the Fif th Circuit’s stay (entered May 12, 2014) prohibiting the
Creditor f rom f oreclosing on the property began and trigge r e d t he tolling of the statute of
lim itations u nder section 15-1-25 as t o t h e p rom issory note. The chancellor cited to Mississippi Code Annotated section 15-1-57 (Rev. 2012), which provides as f o llows:
W hen any person s hall be prohibited by law, or restrained or enjoined b y the order, decre e , o r p r ocess of any court in t his state f rom com m e n cing or prosecuting any a ction or r em edy , the tim e during which such person shall be so prohibited, enjoined[ , ] or restrained, shall n ot b e com puted as any part of the period o f tim e lim ited by this chapte r f o r the com m encem ent of such action. ¶37. The chancellor acknowledged that the suprem e court d iscus s e d s e ction 15-1-57 in
Grant v. State , 686 So. 2d 1078, 1084 (Miss. 1996). T he Grant court explained t hat “[ t]here

can be n o tolling o f the statute of l im itations u nless the person is personally prohibited f rom

11 S ee M iss. C o d e A n n
. § 1 5 -1 -2 5

. 1 7bringing suit.” Id

. The Grant court f urther stated t hat t here is “no savings o r t olling of the

statute of lim itations unless an individual is personally prohibited or restrain e d f r om

com m encing o r p r o s e c u t ing his claim ; t he f act that h e cannot recover because of an applicable def

ense or im m

unity does not toll t he running of t he statute of lim i tations.” Id. ;

see also Chimento v. Fuller , 965 S o. 2d 668, 676 (¶33) ( Miss. 2007); but cf. W hite v. McMillin , No. 3:09CV120-DPJ-FKB, 2011 W L 3555766, at *7 (S.D. M iss. Aug. 1 1, 2011) (f i nding that since the stay im posed had no im

pact on the plaintif

f s ’ ability to f

ile any m otion
necessary to f

acilitate the f

i ling of a tim e ly c om

plaint, t he p laintif

f s were not p rohibited f

rom bringing suit to the extent necessary to trigger section 15-1-57). ¶38. The Creditor subm i ts that o ur jurisprudence has recognized in m ultiple contexts that
the special relationship between a deed of trust and a prom issory note entwines t he r ights and

rem edies each instrum ent creates. 12 The Creditor c ites to Kirby v. Bank of America N.A. , No. 2:09-CV-182-DCB-JMR, 2012 W L 1067944, at *4 (S.D. Miss. Mar. 2 9, 2012), in which the
f ederal district court e xplained that “[ t]he Mississippi Suprem e Court has articulated [ that]

. . . when the m ortgage and the note are suf f iciently connected[ ,] the assignm ent of the note operates [ a s ] a n a ssignm ent o f t he m ortgage also.” T he Kirby court f urther stated that “[ u]nder Mississippi caselaw, which is consistent with general principles of m o rtgage law,

12 Wilm in g to n T ru st f

u r th er su b m its th at b ecau se th e m atu rity d a te o f th e p ro m isso ry n o te i s af ter N o rair’s d eath , th e f

o u r-y ear statu te o f lim ita t i o n s in sectio n 1 5 -1 -2 5 t h at g o v ern s c l aim s ag ain s t an ex ecu trix is in a p p licab le. Wilm in g to n T ru st claim s th e n o te itself states th e m atu rity d ate is A p ril 1 , 2 0 3 6 , w e l l af ter N o rair’s d eath o n Ju ly 1 9 , 2 0 1 0

. 1 8the m ortgage f ollows the note.” I

d

. ¶39. Jurisprudence supports the chancellor’s application of t he law to the f acts of this case wherein the chancellor held t hat the f ederal court stay prohibited f oreclosure of the property
at i ssue and thereby toll e d t h e statute of lim i tations. In Temples v. First National Bank of
Laurel , 239 Miss. 446, 455, 123 So. 2d 8 52, 8 55 (1960), the suprem e c ourt held that an event that t olled the running of the stat u t e o f l i m i t a tions f or a note secured b y a m ortgage also
tolled the running of the s tatute of lim itations on the m o rtgage itself

. See also Chimento , 965
So. 2d at 669 ( ¶3) (suprem e court acknowledged the trial court’s order f inding that the order that enjoined f

oreclosure tolled the statute of lim itations on a prom issory note). ¶40. W e f

ind n o error in t he c hancellor’s f i nding that t he statem ent of claim in this probate proceeding was t im e ly f

iled, and w e f

ind no error in the c h ancellor’s d eterm ination that “the
Fif th Circuit’s stay entered May 12, 2014, prohibiting [ the Creditor] f rom f oreclosing on the property pending the appeal began the tolling of [ section] 15-1-25 as to the prom issory note
in a ccordance with [ s ection] 15-1-57.” See H oward , 63 So. 3d at 593 (¶8) ( prohibiting an appellate court f

rom disturbing a chancellor’s f indings under the circu ms t a nces). The
chancellor also subsequently f o und that “the tolling period c eased at its earliest on Decem ber 9, 2014, approxim ately seven m onths later, when the Fif t h Circuit reversed the U.S. District Court, or at the latest o n A u g u s t 4, 2015, when the U.S. District Court rendered a f inal judgm ent.” ¶41. In a ddressing the i ssue bef ore u s on review as to the tim eliness of this probate claim ,

1 9t h i s C o u r t h as h e ld that the q u estion is “whether [ the claim ant] could prove any set o f
evidence that would e ntitle him to relief against [ the estate].” Thornhill , 905 So. 2d at 752 (¶15); see also T

homas , 8 83 So. 2d at 1178 (¶15). The broad language of section 91-7-151 requires the f

i ling of all claim s against an estate, whether due or not. To p rotect its recovery of i ts secured lien f

rom the assets o f an estate, a creditor m ust f ile a statem ent o f claim in the probate proceeding. In addition to protecting a creditor’s rec o v ery f rom the assets of an
estate on its claim under the prom i ssory note, probating the claim a lso protects the creditor’s right to claim

a def iciency

. 13 ¶42. W h ere a claim ant p resents a claim against an e s tate in good f aith and in su b s t a n t ial

c o m pliance with the statute, t he courts have held such com pliance suf

f icient. See Cent

. O p t i c a l Merch. Co. v
. Lowe’s Estate , 249 Miss. 61, 71, 160 So. 2d 673, 6 77 (196 4 )

. T h i s Court will af

f irm the f a c t u a l f indings of the chancellor “unless they are m anif estly wrong, clearly erroneous, or the chancellor applied an erroneous l egal standard.” Howard , 63 So.
3d at 593 (¶8); see also Izard , 173 Miss. at 7 75, 163 So. at 499-500; Douglas P arker Elec. ,

13 S ee M iss

. C o d e A n n
. § 1 1 -5

- 9 3 (R e v
. 2 0 1 4 ) (j u d icial f o reclo su r e); M iss. C o d e A n n
. § 8 9

- 1

- 5 5 (R ev
. 2 0 1 1 ) (n o n j u d icial f o reclo su r e); M iss. C o d e A n n
. § 8 9 -1 -5 9 (R ev
. 2 0 1 1 ) (rein statem en t o f accelerated d eb t). I f a d ef icien cy rem a i n s af

ter a j u d icial f

o reclo su re an d sale, a cred ito r c an t h en p u rsu e a d ecree f o r th e b alan ce d u e. S

ee M i ss. C o d e A n n
. § 1 1

- 5 -1 1 1 (R ev
. 2 0 1 4 ). We n o te th a t a f ter th e sale o f th e r eal p ro p erty in a j u d icial f o reclo su re, th e c red ito r h as o n e y ear to o b tain a d ef icien cy j u d g m en t f

o r an y b alan c e o r d ef

icien cy rem ain in g af

ter su ch sale. S

ee W a n sley v. F

irst N a t ’l B a n k o

f V icksb u rg , 5 6 6 S o
. 2 d 1 2 1 8 , 1 2 2 4 (M iss. 1 9 9 0 ). U p o n issu an ce o f a j u d icial d e cree f o r a d e f ici e n c y j u d g m en t, th en a n ew statu t e o f lim itatio n s arises an d r u n s f ro m th e d ate o f th e d ef

icien cy j u d g m en t. S

ee R o eb ke v. L o ve , 1 8 6 M iss. 6 0 9 , 6 0 9 , 1 9 1 S o
. 1 2 2 , 1 2 5 ( 1 9 3 9 ); E d g ew a te r P a r k C o
. v. S ta n d a rd B o n d , etc., C o
. , 1 6 2 M iss. 6 8 4 , 6 8 4 , 1 3 8 S o . 8 1 1 , 8 1 2 (1 9 3 2 ). 2 0949 So. 2 d at 878-79 (¶¶18-19) (discussion of f actual questions involved in determ ining equitable estoppel). 14 Based upon the f o regoing a nd the record , w e f i nd n o error in the
chancellor’s application of the law to the f acts of this case. W e a l s o f ind t hat the record
ref lects substantial credible evidence supporting the chancellor’s f indings and judgm ent that
the Creditor tim ely f

iled i ts claim in the probate proceeding. W e theref ore af f irm on that sole
issue that is bef

ore this Court on appeal. ¶43. THE JUDGMENT OF THE LOWNDES COUNT Y CHANCERY C OURT IS A F F IRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT. LEE, C .J., IRVING AND GRIFFIS, P .JJ., ISHEE, FAIR, GREENLEE AND WESTBROOKS, JJ., C ONCUR. WILSON, J., CONCURS IN R ESULT ONLY W I T H O U T S E P A R A T E W R I T T E N O P I N I O N . B A R N E S , J . , N O T PARTICIPATING.

14 C f. A l len v. M

a y er , 5 8 7 S o . 2 d 2 5 5 , 2 6 0 (M iss. 1 9 9 1 ) (q u estio n o f f act ex isted as to w h eth er f

ailu re to f ile p lead in g s b arred relief ; h eld th at “[ w ] h eth er lach es b ars an actio n in a g iv en case d ep en d s u p o n t h e circu m stan ces o f t h at case a n d i s a ‘ q u estio n p rim arily ad d ressed to th e d iscretio n o f th e trial co u rt’”). 2 1