IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2017-CA-00291-COA BURNETTE AVAKIAN, INDIVIDUALLY AND AS EX ECUTRIX

OF THE ESTATE OF NORAIR AVAKIAN, DECEASED A PPELLANT/ CROSS-APPELLEE

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 APPELLEE/ CROSS-APPELLANT

DATE OF JUDGMENT: 01/27/2017 TRIAL JUDGE: HON. H.J. DAVIDSON JR. COURT FROM W HICH APPEALED: LOW NDES COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: STEVEN CRAIG PANTER ATTORNEYS FOR APPELLEE: W I LLIAM JACOB LONG IV CHRISTOPHER DANIEL MEYER NATURE OF THE CASE: CIVIL - CONTRACT DISPOSITION: ON DIRECT APPEAL: AFFIRMED. ON CROSS-APPEAL: AFFIRMED - 04/10/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., GREENLEE AND TINDELL, JJ. LEE, C.J., FOR THE COURT: ¶1. T h i s c a s e i s t h e l atest in a series of litigation betwee n t h e p a r t i e s r e g a r d i n g W i lm ington Trust, N ational Association’s right to f oreclose on Burnette Avakian’s hom e. In this appeal, we m

ust decide whether t he chancery c o urt—f inding that res judicata applied—properly granted W ilm ington Trust’s m otion f or p artial s u m m ary judgm ent on its claim s f or judicial f

o reclosure, b r e a c h of contract, and declaratory j udgm ent. On cross-appeal, we m ust also decide whether the chancery court p roperly g ranted Burnette’s m otion f or partial sum m ary judgm ent o n W i l m i n g t o n T r u s t ’ s claim f

or unjust enrichm ent. F ollowing a de novo review, we af

f irm the judgm ents of

the chancery

court. ¶2. W e acknowledge th e f a c t s a n d circum stances giving rise t o the instant action on appeal are identical to those in previous actions between these sam e parties. See Estate of Avakian v. W

ilmington Tr. Nat’l Ass’n , 231 So. 3d 208 (Miss. Ct

. A pp. 2017) (probate action); Avakian v. Citibank N.A. , 773 F.3d 647 (5th Cir. 2014); Avakian v. Citibank N.A. , No. 1:12-CV-00139-SA-DAS, 2015 W L 4 6 4 3 1 2 9 ( N

. D

. M i s s . A u g . 4 , 2 0 1 5 ) (f ederal action). ¶3. Because the c hancery c ourt’s decision to grant s um m a r y judgm ent on certain claim s in t he instant case was based on the doctrine of res judicata, it is necessary t o detail not only

t h e f a cts and procedural history of the instant c ase, but a lso the prior a ctions between th e parties. FACTS ¶4. In Septemb e r 2 0 0 2 , N o r air and Burnette Avakian, husband and wif e , purchased a house in Colum

b us, Mississippi, and exec u ted a deed o f trust to secure a loan f or the purchase f

r o m Southstar F inancing LLC. At that t im e, the title to the property w as vested in both their nam es a s joint tenants. The n , i n N o v e m ber 2004, Norair executed a deed
convey ing title to the property to Burnette alone. In March 2 006, the Avakians ref inanced the m ortgage w i t h E q uiFirst Corporation, a nd Norair took out a loan in his nam e only and executed a prom issory note in f avor of EquiFirst. It was u n d i s p u t e d that the Avakians intention was to structure the ownership and debt so that Burnette w ould n ot be liable f or the

2debt if Norair died. However, because title was vested in Burnette alone, EquiFirst required

both Burnette and Norair to execute a deed of trust. Norair was out of state at the tim e of the closing, so Bur n e t t e and Norair each signed separate deeds of trust o n the property

. This resulted in two deeds of t rust on t he property —one executed by N orair o n M a r c h 7 , 2006, and one executed by Burnette o n March 8, 2006. Each deed o f t r u s t w a s r ecorded as a separate instrum ent with the Lowndes County Chancery

Clerk. ¶5. Norair’s prom issory n ote to EquiFirst was later s old to Citibank N.A. i n its capacity

as trustee of t he Bear Sterns A sset Backed Securities Trust. J .P. Morg a n b ecam e the servicing agent f

or Citibank. On D ecem

ber 3, 2 012, W ilm ington Trust replaced C itibank as the trustee f

or B ear Sterns. So, J.P. Morgan served as the servicer f or the loan, and EquiFirst, Citibank, and W ilm ington Trust were the successive creditors. ¶6. Norair def

aulted on t he prom issory note and d ied s hortly af ter in J uly 2010. In early 2012, Citibank, the trustee/creditor at that tim e, noticed Burnette its intention to f oreclose on the house and s et t he f

oreclosure s ale f

or May 10, 2012. On May 9 , 2 012, the day bef ore the scheduled f

oreclosure s ale, Burnette f iled suit in the chancery c ourt against C itibank seeking
to enjoin the f

o reclosure. This began the series of litigation between the parties present on appeal (through W i lm i ngton Trust’s predecessor, Citibank). PROCEDURAL HISTORY 1. Federal Action ¶7. On May

9, 2012, Burnette f

iled a lawsuit in chancery c o urt t o e njoin Citibank f rom f oreclosing on the property . She argued that the two deeds of trust on the hom e were both

3void pursuant to Mississippi Code Annotated section 89-1-29 (Rev. 2011) b ecause neither

deed contained the signatures o f both Burnette and Norair. Citibank rem oved the lawsuit to the United States District Court f or the Northern District o f Mississippi. F ollowing a trial, the district court entered a f inal judgm ent on February 10, 2014, in f avor of Burnette, holding that t he deeds of trust on the house were u nenf o rceable. See Avakian v. Citibank N.A ., No. 1 :12-CV-00139-SA-DAS, 2014 W L 346861 (N.D. Miss. Jan. 30, 2014), re v ’ d a n d remanded , 773 F.3d 647 (5th Cir. 2014). ¶8. Citibank appealed the de c i s i o n t o t h e Fif th Circuit Court of Appeals. See Avakian , 773 F.3d at 649. Dur i n g t h e a p p e a l, the Fif t h Circuit issued a stay on May 12, 2014, that prohibited f

oreclosure o f

the property

during the pendency

of the appeal. On Decem ber 9, 2014, the Fif

th Circuit r eversed the district court, f inding that the Mississippi Suprem e Court would likely construe the t wo deeds of trust as together creating a valid deed of t rust. Id

. at 653. Thus, the Fif

th Circuit f

o und the two deeds of trust together f orm ed a v a l i d and enf orceable instrum ent and rem anded the case f o r f u rther proceedings. Id

. ¶9. On rem and in the district court, Citibank f iled a m otion f

or entry of f inal judgm ent. See A vakian , 2015 W L 4643129, at *1. In r esponse, Burnette f iled a m otion to dism iss the action without prejudice, a r g u i n g that it becam e m o ot on Decem b er 3, 2012, when
W i lm ington Trust succeeded Citibank as trustee f or the l ienholder. Id

. at *2. Citibank responded b y f

iling a m otion to substitute W il mi n g t on T rust as t he def endant and then renewed its request f

or entry of a f

inal judgm ent. Id

. T he district c ourt noted that “[ Rule 25 of the Federal R

ules o f Civil P rocedure] states that when ‘an interest is transf erred, the action

4m ay be continued b y or against t he original party unless t h e c o u r t , o n m otion, orders the

transf eree to be substituted in the action or joined with the original p arty .’” Id. (quoting Fed.
R. Civ. P. 25(c)). In apply i ng the r ule, the district court f

ound that it was proper f

o r Citibank
to c ontinue as the nam ed def endant even af

ter i t c eased to have any i n t e r e s t i n the subject property

. Id

. Further, the d istrict court noted that “ [ B urnette] [ did] not dispute that
W i lm ington succeeded Citibank a s trustee on Decem ber 3, 2012. In f

act, [ Burnette relied]
upon the com

plete transf

e r of Citibank’s interest t o W ilm ington in arguing that th[ e] action [ was] m o ot because Citibank no long e r ha[ d] any i nterest in t he outcom e.” Id

. at *3. Accordingly , the district court denied Burnette’s m otion to dism i ss w ith prejudice, granted Citibank’s m otion to substitute W ilm ington Trus t , and granted Citibank’s m otion f or f inal judgm ent in f

avor of W ilm ington Trust. Id

. 2. Probate Action ¶10. On July 28, 2 010, Burnette f iled a petition i n the L o wndes C ounty Chancery Court to probate N orair’s last will and testam ent. That sam e day , the chancery court entered an order probating the last will and testam ent and issued letters testam entary to Burnette to serve as
executor of the Estate. Burnette did not identif y any entity as a known creditor of the Estate and did not provide W ilm ington Trust, or any creditor, n otice by m ail regarding the probate of the Estate, thereby f

a iling to com

ply with Mississippi Code Annotated section 91-7-145 (Rev. 2 013). She did f

ile a “Notice to C reditors Af f idavit,” stating that she had and would notif y known creditors; however, she did not list any specif ic creditors. ¶11. Citibank m ade two attem p t s t o f oreclose in 2010 but did not com plete the process.

5During the pendency of the 2012 f oreclosure attem

pt, a f t er the district court (prior to appeal) ruled that the deeds of t rust were void and unenf orceable, Citibank (through i ts servicer, J.P. Morgan) f

iled a statem e nt of claim on October 14, 2014, in the p robate proceeding pending in chancery c ourt based upon Norair’s debt a rising f rom the prom issory note of $815,905.06. The statem e nt of claim set f orth t h a t “ [ t]he claim was presum ed secured pursuant to a

m ortgage loan; however, the claim h a s been deem ed unsecured v ia [ the district court’s judgm ent].” Burnette f

iled her contest of the statem ent of claim , asserting that any claim on the prom issory n ote was tim e-barred by Mississippi Code A nnotated section 15-1-25 (Rev. 2012), and that pursuant to Mississippi Code Annotated section 15-1-3 (Rev. 2012), t h e statute of lim itations had run on the underly ing claim

. ¶12. The chancellor f

ound that although C itibank f iled its statem ent of claim outside of the ninety -day statutory tim e period to probate a claim against the Estate under Mississippi Code Annotated section 91-7-151 (Rev. 2013), the claim was s t i l l t im ely f i led due to Burnette’s f ailure a s executor t o provide all reasonably ascertainable creditors w ith notice of probate of the Estate as required by

section 91-7-145. ¶13. In regar d t o B u r n e t t e ’ s a r g u ment that the statute o f lim itations had run on the underly ing claim , the chancellor noted that if the creditor is not paid on a claim based on the
prom issory note during the probate proceeding, the creditor m ust then bring a separate civil suit against the Estate to enf orce th a t c l a i m o n the p rom issory note bef ore the f our-y ear
statute of lim itations i n s uch actions expires u n der section 15-1-25. T he chancellor acknowledged t hat letters testam entary w e r e issued t o Burnette on July 28, 2010; the

6ninety -day

m oratorium

on bringing a civil suit against a n executor u nder Mississippi Code Annotated section 91-7-239 (Rev. 2013) expired on O ctober 26, 2010; a nd on that date, the f our-y ear statute of

lim itations established by section 15-1-25 began to run and expired on October 26, 2014. The chancellor determ ined that although W ilm i ngton Trust, or any other creditor, had n ot f

iled a civil action against the Estate prior to Octo b e r 2 6 , 2 0 14, the Fif th Cir c u i t ’s stay (entered M ay 1 2, 2014) p rohibiting any creditor f rom f oreclosing on the property began and triggered the tolling of the statute of lim itations under se c t i on 15-1-25

a s to the prom issory n ote. The chancellor also subsequently f ound that “the tolling period ceased at its earliest on D ecem ber 9, 2014, approxim ately seven m onths later, when the Fif th Circuit reversed the U.S. District Court, or at the latest o n A ugust 4, 2015, when the U.S. District Court rendered a f inal judgm ent.” ¶14. Burnette appealed t h e c h a n c e l l o r ’ s d ecision in the probate action to this Court in
Estate o f Avak i an, 231 So. 3d at 210 (¶1). In E state of Avakian , this C ourt af f irm ed the judgm ent of the chancery court, holding there w as “no error in the chancellor’s f i nding that the statem ent of claim in t his probate proceeding w a s tim e l y f iled, and

. . . no e rror in the chancellor’s determ ination that ‘the Fif th Circ u i t ’s s tay entered M ay 12, 2014, prohibiting [ Equif irst, J.P. Morgan, Citibank, and W ilm ington Trust] Creditor f rom f o reclosing on the property pending the appeal began the tolling o f section 15-1-25 as to the prom issory note in accordance with section 1 5 -1-57.’” Id. at 218 (¶40). The s uprem e court denied Burnette’s petition f or writ of certiorari. See Avakian v. W ilmington Tr. Nat’l A s s’n , 229 So. 3d 122 (Miss. 2017).

73. Current State Action

¶15. F o l l o wing the f

i nal judgm ent of the f

ederal d istrict court (on rem and), W ilm ington
Trust f iled the current action now on appeal on February 23, 2015. This f iling cam e less than three m onths af

ter reversal and, thus, was tim ely according to this Court in the Estate action.
In the present suit, W ilm ington T r u s t m ade the f ollowing claim s: C ount I (judicial f oreclosure); Count II (breach o f c ontract); Count III (unjust enrichm e nt); and Count IV (dec l a r a t o ry j u dgm ent). On Novem ber 10, 2015, W ilm ington Trust m oved f o r partial

sum m ary judgm ent as to Counts I, II, and IV of the com plaint. Burnette opposed the m otion, arguing that there was a genuine issue o f m aterial f act as to whether W ilm ington T rust was the true owner and holder of the prom issory

note and deeds of

trust. ¶16. The chancellor f

ound t hat res judicata barred t h i s def e nse raised by Burnette. The chancellor also f

ound t hat it was undisputed that t h e A v a k i ans had def aulted on the
prom issory note, that none of the indebtedness had been r e p a i d , and that the d eed of trust provided f

or f oreclosure upon def

ault. Finding that no other issues were l ef t unresolved by previous li t i g a t ion or were r ipe f o r decision and not raised, the chancellor g ranted partial

sum m ary j udgm ent in f

avor of W ilm ington Trust a s t o Counts I, II, and IV. The chancellor, however, granted partia l sum m ary judgm ent i n f avor of Burnette on W ilm ington Trust’s unjust-enrichm ent claim (Count III). ¶17. Burnette now appeals the c hancellor’s g rant of partial sum m ary judgm ent i n f avor of
W i lm ing t o n T r u s t on Counts I, II, and IV; and W ilm ington Trust cross-appeals the chancellor’s grant of p artial sum m ary judgm ent in f a vor of B u rnette on its unjust-enrichm ent

8claim

. 1
STANDARD OF REVIEW

¶18. This Court “ c o n d u c t [ s ] a d e n o v o r e v i e w o f a t r ial court’s grant of sum m ary judgme n t

. ” E

state of W

hite v. W hite , 152 So. 3 d 3 14, 316 (¶9) (Miss. 2 014). “A civil def endant m ay r aise res j udicata in a m otion f o r sum m ary judgm ent where a plaintif f ’s suit
centers a round issues decided i n a previous lawsuit.” I d

. a t 3 1 6

- 3 7 (¶9). I n viewing the evidence in the light m ost f a vorable to the nonm oving p a r t y , sum m ary judgm ent is proper

w h e re “the pleadings, depositions, answers t o interrogatories and adm issions on f ile, t o g e t h e r with the a f

f idavits, if any , show that there is no genuine issue as to any m aterial f act and that the m o ving party is e ntitled to judgm e n t a s a m atter of law.” Mitchell v. Ridgewood E. Apartments LLC , 205 So. 3d 1069, 1073 (¶13) (Miss. 2016) (quoting M.R.C.P. 56(c)). DISCUSSION I. Res Judicata ¶19. I n r e s p o n s e to the grant of sum m a ry judgm ent on W ilm ington Trust’ s c l a i ms i n Counts I, II, and I V, B urnette contends there is a genuine i s s u e o f ma t erial f a ct regarding whether W ilm ington Trust was the true holder o f the prom issory note and deeds o f trust. The chancellor held t hat this claim was barred under the doctrine of res judicata. Af ter a de novo review, we agree. ¶20. Under the doctrine o f res judicata, parties are barred “f rom litigating claim s within the

1 T h e ch an cello r also issu ed ru lin g s an d g ran ted p artial su m m ary j u d g m en t o n o th er v ario u s co u n terclaim s an d d e f en ses raised b y th e p arties, th ereb y d i sp o sin g o f all th e issu es in th e c ase b elo w . H o w ev er, in lig h t o f th e len g th y a n d ted io u s p ro c ed u ral h isto ry alread y reco u n t ed , w e o m it th ese d etails, as th ey are n o t at issu e o n ap p eal. 9scope of t he j udgm e nt in a prior action.” H i l l v. Carroll Cty ., 17 S o. 3d 1081, 1084 (¶8) (Miss. 2009) (citation and internal quotation m arks om itted). “This i ncludes claim s that were

m ade o r should have been m ade in the prior suit.” Id

. “ T h e d octrine of res judicata is f undam ental t o the equitable and ef f icient operation of t he judiciary and r ef lects the ref

usal of the law to tolerate a m ultipl i c i t y of litigation.” Gibson v. W illiams, W

illiams & Montgomery P.A. , 1 86 So. 3d 836 , 844 (¶16) (Miss. 2016) (citation and internal quotation

m arks om itted). “ The courts cannot revisit adjud i c a t e d c l aim s[ ,] and all grounds f or[ ] or def enses to recovery that were a vai l a ble to the parties in the f irst action, r egardless of whether they were asserted or determ ined in the prior proceeding, are barred f rom re-litigation in a subsequent suit under the doctrine of res judicata.” Id

. (citation and internal quotation m arks om itted). ¶21. “Under t he principle known as ‘bar,’ r e s j u d i c a t a p r e c l u d e s claim s which were actually l itigated in a previous action.” Hill , 1 7 S o . 3 d a t 1084 (¶9). “Under the principle known as ‘m erger,’ res judicata prevents subsequent litigation of any claim that should have been litigated in a previous action.” Id . at 1084-85 (¶9). ¶22. In order f

or res j udicata to apply , the f ollowing f

our identities m

ust be present : “(1) identity of the subject m atter of the action; (2) identity of the cause of action; (3) identity of the parties t o the cause o f a ction; and (4) identity of the quality or character of a person against whom th e c laim is m ade.” Id

. a t 1085 (¶10). “[ O]nce the f our i dentities of res judicata have been established, any claim s that c ould have been b rought in the prior action

are barred.” Id

. H owever, “the absence of a n y one of the elem ents is f atal to the def

ense of

1 0res judicata.” I d

. “Additionally , the prior judgm e nt m ust be a f inal judgm ent adjudicated on the m erits.” Doss v. Dixon , 131 So. 3d 1265, 1269 ( ¶8) (Miss. C t

. A pp. 2014). “A f inal judgm ent o n t h e m erits is a j udgm ent based on the evidence rather than on technical or procedural grounds.” W

h ite , 1 52 So. 3d a t 317 ( ¶10) (citation and internal quotation m arks

om itted). ¶23. In the prior f

ederal action, the district court’s judgm ent (August 4, 2015) was based

on evidence, and not rendered on technical or procedural g rounds. As s uch, it is a f inal judgm ent on t h e m erits f

or t he p urposes o f res judicata. W e n ow turn to exam ine whether the f our identities are present f or res judicata to apply

. A. Identity of the Subject Matter of the Action ¶24. “The do c t r i n e o f res judicata b ars a second action between the sam e parties on the subject m atter directly involved i n the prior action.” Hill , 1 7 So. 3 d at 1 085 (¶12) (citation

om itted). “In older cases, [ the suprem e court] h a s r e f erred t o s ubject[ -]m a tter identity as identity in the thing s ued f o r .” Id

. (citation and i nternal quotation ma r k s o m itted). “More recently , the [ suprem e c ourt] d ef ined subject m atter a s the ‘substance’ of the lawsuit.” Id

. In t he instant case, the subject m atter of the prior f ederal acti o n is the sam e as the subject

m at t er of this case: W ilm ington Trust’s (and its predecessors’) attem pt t o f oreclose on Burnette’s property u n d e r t h e d eeds of trust and prom issory n ote f ollowing the A vakians’ def ault. Theref

o re, the subject-m atter identity is m et. B. Identity of the Cause of Action ¶25. The “cause of action” in the suits m ust also be the sam e. Id

. at (¶13). The suprem e

1 1c o u r t h as def ined t he “ cause of action” as “the u nderly ing f acts and circum stances up o n which a c laim has been brought.” I d

. (citation om itted). The un d e r l y i n g f a c ts and circum stances giving rise to all the previous litigation, including t he prior f ederal case, are identical to those in the present c ase on appeal: the Avakians executed certain deeds of trust
to secure a loan f

or t he subject property , and later def aulted u nder the prom issory n ote, which
prom pted W ilm i ngton Trust (and its predecessors) to seek f oreclosure. The cause-of

-action identity is m et. C. Identity of the Parties to the Cause of Action ¶26. “Although identity of the p arties is a necessary elem ent of res judicata, [ the suprem e court] repeatedly has held that ‘strict identity of p arties is not necessary . . . if it can be shown that a nonparty stands in privity with t he party in the prior action.’” EMC Mortg. Corp. v. Carmichael , 17 So. 3d 1087, 1090-91 (¶13) (Miss. 2009). Privity is a word which expresses the idea that as to certain m atters and in certain circum stances persons who are not parties to an action bu t w h o are connected w ith i t in their interests are af f ected by t he judgm ent with ref erence to interests involved in the action, as if they were parties.
Fason v. T

russell Enters. I

nc . , 120 So. 3d 454, 460 (¶18) ( Miss. Ct. App. 2 013) (quoting In re Estate of Bell , 976 So. 2d 965, 968 (¶7) (Miss. Ct. App. 2008)). ¶27. In t he prior f

ederal case, Citibank was i nitially n am ed as a def endant in Burnette’s suit
to e njoin the f

oreclosure. In 2012, Citibank assigned t he prom issory note and deeds of trust
to W ilm ington Trust, and W ilm ington Trust replaced Citibank as t rustee. Thus, W ilm ington
Trust is u n doubtedly in p r ivity with Citibank in regard to the previous l itigation b e tween Citibank and Burnette. Furtherm ore, in the prior f e deral case, the d i s t r i c t court granted

1 2Citibank’s m oti o n t o s u b stitute W ilm ington Trust as the def endant and the f

inal judgm ent and

m em orandum opinion w ere entered as to W ilm ington Trust’s interests. Thus, the identitiesof -the-parties elem e nt is m et.

D. I d e n t i t y of the Quality o r Character of a P e rson Against Whom the Claim is Made ¶28. “Our suprem e cour t h a s n o t e d t h a t it has not ‘explicitly def ined the identity of

the quality or character of a p erson against whom t he claim i s m ade.’” Fason , 120 So. 3d at 460 (¶20) ( quoting Hill , 17 So. 3d at 1086 (¶18)). However, exam ples and applications of this identity exist, particularly where the parties a re the sam e in the relevant actions and acting in t he sam e interests or capacity

. See Hill , 1 7 So. 3d at 1086-87 (¶¶18-19); Black v. City of Tupelo , 853 S o. 2d 1221, 1225 ( ¶11) (Miss. 2 003). Here, it is clear that the qualit y and character of the parties, W ilm ington Trust as trustee and Burnette as executor f or the Estate and individually , are the sam e in this case as in the prior f ederal action, and are a cting in their

sam e respective interests in the present case as in the prior action. As such, this identity is

m et. ¶29. Again, “once the f

our identities of res judicata have been established, any claim s that could h ave been brought in the prior action a re barred.” Hill, 17 So. 3 d at 1085 ( ¶10). This is true f or “all grounds f

or, or defenses to recovery that were available to the parties in the f irst action, regardless of whether they were asserted or d etermined in t

he prior p roceeding . . . .” G ibson , 186 So. 3d at 844 (¶16) (em phasis added). ¶30. In the p rior f

ederal action, Burnette could have c laim e d that Wi l mington Trust was
not the true holder of the deed o f trust or prom i ssory note, thereby contesting W ilm ington

1 3Trust’s right to f oreclose on Burnette’s hom e . However, a s the f ederal case ref

lects, Burnette instead chose to argue that Citibank’s l awsuit f o r f oreclosure becam e m oot when its interest

as trustee w as transf

erred to W ilm ington Trust. See Avakian , 2015 W L 4643129, at *2. The f e deral district court f

o und that B urnette’s argum ent lacked m e rit, b ecause Rule 25 of the Federal Rules of C ivil Procedure states that when “an interest is transf erred, the action m ay be c ontinued by or against the original p arty unless the court, on m otion, orders the transf eree
to b e substituted in the action or joined with the original party .” Id

. (quoting Fed. R. Civ. P. 25(c)). ¶31. A d d i t i o n a l l y , i n r e s p o n se to Burnette’s a r gum ent, Citibank m o ved to substit u t e W i lm ington Trust, and still, Burnette did not then claim that W ilm ington Trust was not the

t r u e holder of the deed of trust or prom issory note. Rather, as t he district court n o t e d , “[ Burnette] does not dispute that W ilm ington succeeded Citibank as t rustee on Decem ber 3, 2012. In f

act, [ Burnette] relies upon the c om plete transf

er of Citibank’s i n t e rest to W i lm ington in a rguing that t his action is n o w m oot because Citibank no l onger has any interest i n the outcom e.” Id. at *3. The d istrict court granted Citibank’s m otion to substitute
W i lm ington Trust as t he def endant, and the district court rendered a f i n al j udgm ent in
W i lm ington Trust’s f

avor, f inding that it could f

oreclose. In the instant case, the chancellor properly note d t h a t the right to f oreclose had already been decided by the f ederal district
court. Af ter a de n ovo review, this Court too f i nds that res j udicata applies. Thus, Burnette is precluded f

rom claim ing t hat W ilm ington Trust was not the true holder of the deed of trust and prom issory n o t e . A c c o r d i n g l y , W i l m i n g t o n T r ust’s m otion f

or partial s um m ary j udgm ent

1 4with respect to Counts I, II, and IV of the com plaint was properly

granted.
II. Cross-Appeal: Unjust Enrichm ent ¶32. On cross-appeal, W ilm ington Trust claim s the chancery court erred w hen it granted Burnette’s m otion f

or sum m ary judgm ent on its unjust-enrichm e nt c laim

. T he parties agree tha t B u r nette lived and conducted a bed-and-breakf ast business on the subject property without m aking any l oan or rent pay m ents under the prom issory n ote or deed of trust since July 2010. It is also undisputed that Burnette p rof ited through h er com m ercial use of the property , although the parties dispute the am oun t o f p r o f i t

. As such, W ilm ington Trust argues that Burnette has been unjustly enriched. ¶33. “An u njust[ -]enrichm ent action is based on the equitable principle that a person shall
not be allowed to enrich him self unjustly at the expense of another.” B easley v. Sutton , 192 So. 3d 3 2 5, 332 (¶23) (Miss. Ct. App. 2015) (citation a nd i nternal quotation m a rks om itted).
Ho w e v e r , “ [ u]njust enrichm ent applies to situations where t here is no legal contract

. . . .” Id. (citation and internal quotation m arks om itted). ¶34. Here, W ilm i ngton Trust cannot recover dam ages und e r an unjust-enrichm ent claim because there is a contract between the parties—the deed of trust a n d p r o mi ssory note. Und e r the term s of the deed of trust, W ilm ington’s rem edy in the event of a def ault was f oreclosure. W ilm ington Trust argues that the deed of trust contem p lated only t hat the hom e would be used f

o r a residence; however, there was nothing i n the deed o f trust that p rohibited the hom e f

rom being r ented out. At a hearing on the sum m ary -judgm ent m o tion, W ilm ington
Trust acknowledged that n e ither the deed of trust nor the p r o mi ssory note contained an

1 5assignm ent-of -rents-and-prof

its provision. As s u ch, b eca u se t he parties’ relationship is governed by contract, dam ages based on unjust enrichm ent are not an appropriate rem edy

. 2 Thus, the chancery court properly granted sum m ary judgm ent in f avor of Burn e t t e o n this claim

. ¶35. ON DIRECT APPEAL: AFFIRMED. ON CROSS-APPEAL: AFFIRMED. IRVING AND GRIFFIS, P.JJ., CARLTON, FAIR, WI LSON, GREENLEE, W E S T B ROOKS AN D T I N D E L L , J J . , C O N C U R . B A R N E S , J . , N O T PARTICIPATING.

2 T h e c h an c ello r d id , h o w ev er, o rd er B u rn e t te “ to p ay $ 2 , 5 0 0 .0 0 p er m o n th i n r e n t b eg in n i n g F eb ru ary 1 , 2 0 1 7 , an d co n tin u in g ea ch m o n th th e reaf ter u n til an ap p ellate d ecisio n is ren d e red [ ,] ” reg ard in g Wilm in g to n T ru st’s u n j u st-en rich m en t claim

. 1 6