* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-60328 

Summary Calendar

BRIAN H NEELY; KAREN NEELY

Plaintiffs - Appellants

v.

REGIONS BANK INC, also known as Regions Mortgage Inc; PIERCE

LEDYARD; TONDA BURKE; HELEN F-J JOYCE; JANE DOE, paralegal for

Pierce Ledyard; JOHN 1-20, attorney

Defendants - Appellees

Appeal from the United States District Court 

for the Northern District of Mississippi 

USDC No. 4:04-CV-106

Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Brian and Karen Neely, husband and wife, filed suit after their mortgage

company foreclosed on property they owned. The district court dismissed the

case and sanctioned the Neelys. The Neelys now appeal. For the reasons that

follow, we affirm. 

United States Court of Appeals

Fifth Circuit

F I L E D

January 25, 2008

Charles R. Fulbruge III

Clerk
No. 07-60328

2

1. The Neelys first contend that the district court erred in granting

judgment in favor of Regions Bank. The district court both granted

Regions summary judgment and simultaneously dismissed the case

against it as frivolous. 

We review grants of summary judgment de novo, applying the

same legal standards as the district court. Machinchick v. PB

Power, Inc., 398 F.3d 345, 349 (5th Cir. 2005). Summary judgment

is proper when the undisputed material facts establish that the

moving party is entitled to judgment as a matter of law. Celotex

Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986). 

The Neelys seem to make two arguments to establish that

Regions was not entitled to summary judgment. First, the Neelys

argue that they were not behind in their mortgage payments. The

Neelys contend that after Regions sent notice in early February

2003 that they were behind $4,220.07 on their mortgage, they sent

Regions three checks in early March 2003 totaling that very

amount. While the Neelys claim that they mailed the checks,

Regions claims it never received them. But even assuming that the

Neelys mailed the checks as they claim, since another month had

gone by, the Neelys would have owed another month’s mortgage

payment in addition to the $4,220.07. Thus, even crediting the

Neelys’ story, they were still behind in their mortgage and Regions

could foreclose on the property. 

The Neelys next argue that Regions was not entitled to

summary judgment in light of Temple-Inland Mortgage Corp. v.

Jones, 749 So. 2d 1161 (Miss. Ct. App. 1999). There, Temple-Inland

sent the mortgagor a series of letters telling him that he was behind

on his mortgage and informing him of the amount of the
No. 07-60328

3

delinquency. Id. at 1163–64. After Temple-Inland threatened to

foreclose, the mortgagor brought suit several months later, alleging

that Temple-Inland was trying to wrongfully foreclose on his

property. Id. at 1164. In determining what duties Temple-Inland

had to its mortgagor, the court quoted an earlier Mississippi

Supreme Court case that held that the mortgagee in that case was

“‘estopped from exercising the right conferred upon him in the

mortgage contract to declare the entire amount of the indebtedness

due prior to its maturity without first rendering to . . . [the

mortgagor] a true and correct account of the amounts received by

him, and the balance due on the indebtedness, and giving [the

mortgagor] a reasonable opportunity to pay the past due interest

and taxes . . . .’” Id. at 1167 (quoting Johnson v. Gore, 80 So. 2d 731,

737 (Miss. 1955)). With that standard as its guide, the court held

that to the extent that Mississippi law placed a duty on TempleInland “to provide an accounting of the indebtedness necessary to

avoid a foreclosure before the mortgagee can proceed with a

foreclosure sale,” it had complied with its obligations. Id. at 1168.

The Neelys contend that there are disputes of material fact

with respect to whether Regions has complied with its duties under

Temple-Inland. But the undisputed evidence establishes that the

facts of this case are materially indistinguishable from TempleInland. Regions sent several letters to the Neelys informing them

of their delinquency, as was the case in Temple-Inland; while the

Neelys claim not to have received some of these letters, Mississippi

law presumes that an individual receives a letter sent in the mail

unless that individual can come forward with evidence to the

contrary—a statement by a party that he or she did not receive the
No. 07-60328

4

mail, as is the case here, is insufficient as a matter of law to

overcome the presumption. Holt v. Miss. Employment Sec. Comm’n,

724 So. 2d 466, 471 (Miss. Ct. App. 1998). Moreover, as in TempleInland, the Neelys had sufficient opportunity to cure their

delinquency; indeed, they had an opportunity in March 2003 when

they chose to send checks that failed to properly cure their

delinquency. Accordingly, Regions did not violate its duties to the

Neelys and Regions was entitled to summary judgment. 

2. The Neelys next contend that the district court should not have

granted the Pierce Ledyard law firm, and its employee, Helen Joyce,

summary judgment. Regions hired Pierce Ledyard to stand in as

trustee on the deed of trust securing the promissory note on the

Neelys’ property. The firm was hired to initiate foreclosure

proceedings against the Neelys because of their perpetual

delinquency on their mortgage. 

Under Mississippi law, a deed of trust is only superficially

analogous to a conventional trust and is “little more than a common

law mortgage with a power to convey in the event of default.”

Wansley v. First Nat’l Bank of Vicksburg, 566 So. 2d 1218, 1223

(Miss. 1990). Thus, Pierce Ledyard and its employees did not have

the typical duties associated with a trustee; instead they owed the

Neelys no duties “until called upon to foreclose,” at which point the

duties were “limited to conducting a fair and impartial sale

according to law and the contract between the parties.” K.F.

BOAKLE, MISS. REAL ESTATE FORECLOSURE LAW § 2:3 (2d ed. 2006).

In other words, the scope of Pierce Ledyard’s duties did not extend

beyond the foreclosure sale. 
No. 07-60328

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The Neelys concede that Pierce Ledyard, acting through

Joyce, did not violate any duties with respect to the foreclosure sale.

Instead, they cite cases, such as Temple-Inland (discussed above),

that delineate the duties of a mortgagee—i.e., Regions’s duties to

the Neelys. But those cases have nothing to do with the duties

Pierce Ledyard, acting as trustee, owed the Neelys. And because

there is no dispute that Pierce Ledyard and Joyce did not violate

their trustee duties with respect to their conduct of the foreclosure

sale, they were properly granted summary judgment. 

3. The Neelys also argue thatthey should not have been ordered to pay

some of the attorneys fees of Regions as a sanction. We review the

district court’s decision to sanction the Neelys for an abuse of

discretion. Jackson Marine Corp. v. Harvey Barge Repair, Inc., 794

F.2d 989, 992 (5th Cir. 1986). 

The district court sanctioned Mr. Neely approximately $6,000

for violating 28 U.S.C. § 1927. The district court awarded Regions

attorney fees to reimburse it for the fees associated with the March

2006 motion for contempt hearing. Mr. Neely, a licensed attorney

who by March 2006 was representing himself and his wife, failed to

appear for the hearing. Mr. Neely claims he never received notice

of the hearing even though the district court sent Mr. Neely both

mail and electronic notice. But even if Mr. Neely did not receive the

mailed notice, he had been required since January 2006 to register

with the electronic notice system because he was acting as his own

attorney. Thus, if Mr. Neely did not receive notice, it was his own

fault. The Neelys also argue that since 28 U.S.C. § 1927 allows only

attorneys, not litigants, to be sanctioned, the provision is

inapplicable since they were represented by counsel. But this
No. 07-60328

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ignores that Ms. Neely was expressly not sanctioned under this

provision and Mr. Neely was sanctioned only for his conduct when

he was acting as an attorney in this litigation. Accordingly, the

district court did not abuse its discretion in awarding Regions fees

under 28 U.S.C. § 1927. Similarly, the district court did not abuse

its discretion in determining that the billing records of Regions in

support of its attorney-fee request were specific enough to sustain

an award. 

The district court also sanctioned the Neelys approximately

$6,000 for violating Rule 11(b)(3) of the Federal Rules of Civil

Procedure. Regions was awarded fees for this violation to

compensate it for the Neelys making a frivolous factual

contention—that they were no longer behind on their mortgage

when they mailed three checks in March 2003. The Neelys contend

that their factual contention was not frivolous, but as explained

above, even assuming they did in fact mail checks to Regions, they

would still have been behind in their mortgage payment—a fact

they ignored before the district court. The Neelys also state that

they cannot be sanctioned because they were represented by counsel

during the suit. But litigants can be sanctioned under Rule 11 even

if they are represented. See FED. R. CIV.PROC. 11(c)(1) (stating that

“the court may impose an appropriate sanction on any . . . party”).

Thus, we cannot say that the district court abused its discretion by

determining the suit was frivolous and sanctionable. 

Finally, the district court sanctioned the Neelys

approximately $8,000 for violating Rule 37 of the Federal Rules of

Civil Procedure. Regions was awarded fees under Rule 37 to

compensate it for the Neelys numerous and flagrant discovery
No. 07-60328

7

violations. The district court also awarded Regions approximately

$3,500 in costs. The Neelys make no argument that the district

court abused its discretion with respect to either award and

therefore any complaint they might have is waived. United States

v. Thames, 214 F.3d 608, 611 n.3 (5th Cir. 2000). 

4. Finally, the Neelys assert that the district court and magistrate

judges should have recused themselves. The Neelys, however, make

no argument, cite no legal authority (including identifying the

controlling standard), or point to any evidence supporting their

position. Accordingly, they have waived the issue for lack of

adequate briefing. Id.

AFFIRMED.