IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2013-CA-01107-COA
WENDY HALL APPELLANT

v. GREEN TREE SERVICING, LLC, SUCCESSOR BY MERGER TO WALTER MORTGAGE COMPANY, LLC AND W. STEWART ROBISON APPELLEES

DATE OF JUDGMENT: 05/28/2013 TRIAL JUDGE: HON. JANE R. W EATHERSBY COURT FROM W HICH APPEALED: SUNFLOW ER COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: ALFRED PETER CUTTURINI ATTORNEYS FOR APPELLEES: W

. STEW ART ROBISON ALTON LAMAR W ATTS NATURE OF THE CASE: CIVIL - REAL PROPERTY TRIAL COURT DISPOSITION: FOUND TITLE OF DISPUTED REAL PROPERTY VESTED IN APPELLEES THROUGH A VALID FORECLOSURE SALE DISPOSITION: AFFIRMED - 03/24/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., ROBERTS AND MAX WELL, JJ. ROBERTS, J., FOR THE COURT: ¶1. On Septem

ber 10, 2012, a f

oreclosure sale of a piece o f residential property

located
in Sunf lower County , Mississippi, was h eld on the f r ont steps of the Sunf

lower County Courthouse, with Green Tree Servicing LLC, successor by m erger to Wa lter M ortgage
Com pany (ref erred to as Green Tree), buy ing the property

. W endy H all and Jam es Thom as
f iled a com plaint to set a side the f

oreclosure sale on the grounds t hat the property descriptionwas incorrect and that W

. S tewart Robison was not t he current trustee; thus he did not have

the authori t y t o s ell the property

. The Sunf lower County Chancery Court held that the
f oreclosure sale should not be s et aside since Robison w as a proper trustee and t hat there was

no signif icant e rror in t he property description to warrant setting aside the sale. H all raises
the sam e issues on appeal, but f i nding no error, we af

f irm

. FACTS AND PROCEDURAL HISTORY ¶2. On February 9, 1 993, Hall and Thom as executed a deed of trust in f avor of Jim

W alter
Hom es Inc. encum

bering a piece o f real property located in S unf lower C ounty

. A ttached to
the deed of

trust was the f

ollowing property

description:
Com m ence at the S/W corner o f Block 6 of the McInnis First Addition to the Town of Inverness, a n d run W est to the centerline of U .S. H i ghway No. 49; thence South along the centerline of s aid highway 938.50 f eet; thence North 89 Degrees 19 Minutes East: 34

. 5 0 f e e t to t he east right of way of said highway and the point of beginning of the h erein described parcel of land; thence c ontinue North 8 9 Degrees 19 Minutes East 7 0.0 f e et; thence South 87 Degrees 41 Minutes East 14.50 f eet; thence South 00 Degrees 12 Minutes E a st along the top of said ditch 40.4 f eet to a grader blade i n the center of a n eastwest ditch; thence North 85 Degrees 36 Minutes W est a long the c enter of the east-west ditch 109.5 f

eet to a grader blade 34.5 f eet east of

the centerline of the highway ; thence North 104.5 f eet to the point of beginning, being a part of Block 8, McInnis First Addition according to the of f icial m ap of I n v erness, Mississippi, drawn by

L.E. Claiborne, April 7, 1953.
The deed o f trust n am ed Robison as trustee. The deed of t rust was assigned m ultiple tim es, but ultim ately ended with a June 15, 2012 assignm ent t o U.S. Bank N.A. as t rustee on behalf
of Mid-State Trust IV. ¶3. Hall a n d T h o m a s d e f a u l t e d on the d eed of t rust, so in August 2012, Robison, as

2trustee, began t he f oreclosure p rocess. Robison published the notice of a f oreclosure sale in
the local newspaper with an identical property d e s c r i p t i on as above, except that the word
“line” f rom “centerline” was om itte d i n o n e i nstance. So the p roperty description in the
notice of sale read:
Com m ence at the S/W c orner of Block 6 of the McInnis First Addition to the Town of Inverness, and run W est to the centerline of U

. S

. H i ghway No. 49; thence South along the centerline of said highway 938.50 f eet; thence North 89 Degrees 19 Minutes East: 3 4

. 50 f e e t to t he east right of way of said highway and the point of beginning of the h erein described parcel of land; thence continue North 8 9 Degrees 19 M inutes E ast 70.0 f eet; thence South 87 Degrees 41 Minutes East 14.50 f eet; thence South 0 0 Degrees 12 Minutes E a st along the top of said d i tch 40.4 f eet to a g rader blade i n the center of a n eastwest ditch; thence North 85 Degrees 36 Minutes W est along t he center o f the east-west ditch 109.5 f

eet to a grader blade 34.5 f eet east of

the centerline of the highway ; thence North 104.5 f eet to the point of beginning, being a part of Block 8, McInnis First Addition according to the of f icial m a p o f Inverness, Mississippi, drawn by

L.E. Claiborne, April 7, 1953. (Em phasis added). On Septem ber 10, 2012, the f

o reclosure s ale was h eld, and t he property

was sold to Green Tree. On Septem ber 24, 2012, the trustee’s deed convey ing t he property
to Green Tree was recorded in Sunf l ower County

. ¶4. On March 1, 2013, Hall and Thom as f i led a com

p laint requesting that the f o reclosure
sale be set aside and seeking dam a ges and injunctive relief

. In their c om

plaint, they alleged
that the notice of sale was def ective becaus e i t d i d n o t contain an a ccurate property description due to the o m ission of the word “line” f rom t he description. Additionally , they alleged that Robison was n o longer the trustee due to the deed o f trust’s assignm e nt to U.S. Bank; theref

ore, he did not have the authority to conduct the f oreclos u r e sale. A lso, they

3claim ed that the f oreclosure sale was def

ective because the notice of s a le did not p rovide the

street address f

or the S unf

lower C ounty Courthouse, which was a deterrent f or those bidders

w h o d i d n ot k

n ow w here i t was. Lastly , H all and Thom as claim ed that Green Tr e e intentionally i nf

licted em otional distress upon t hem and their f am ilies. On the sam e day , Hall
and Thom as a lso f

iled a m o tion f

o r a t e m p o rary restraining o rder and a prelim inary injunction requesting that Green Tree be enjoined f rom taking possession o f the property

. ¶5. I n t h e i r separate answers, G reen Tree and Robison both denied Hall and Tho ma s ’ s allegations. R obison also argued that the com plai n t s h o u l d b e dism issed because it was barred by the doctrin e of res judicata, as a def ault j udgm ent was entered against Hall and
Thom a s on October 6, 2 012, in t he Sunf lower C ounty Circuit C ourt. According to the f inal
d ef ault judgm ent f

i led on F ebruary 1 9, 2013, Green Tree f iled suit to recover the p r o p e r t y
f rom Hall and Thom as, who f a iled to plead or otherwise d ef end their def

ault; theref

ore, the
circuit c ourt ordered the sherif f or another lawf

ul of f i c e r t o r em ove Hall and Thom as, and
the i r possessions, f

rom the property

. Shortly thereaf ter, Hall and Thom as instituted the present suit in the chancery court. ¶6. The chancery court held a hearing on March 5, 2013, o n Hall and Thom as’s m otion
f or a t em porary restraining order, which it subsequently d enied because Hall testif ied at the hearing that she and he r c h i ldren would be able to m ove in with her boy f r iend; thus, she
would not suf

f er irreparable injury , loss, or d am age. The chancery c ourt held Green Tree’s
and R obison’s m otions f

or dism i ssal in abey a nce
. T h e n , on May 28, 2013, the chancery

4court heard a r g u me n t s on the m erits. A f ter hearing the evidence, including two expert
witnesses’ testim o nies a s to w hat e f f ect, i f any , the om ission of the word “line” would m ake
in t he property description, the chancery court f ound in f a v or of Green Tree and Robison, and
it dism issed Hall and Thom as’s com plaint. The f

inal judgm ent was entered on June 5, 2013. ¶7. Hall tim e ly f

iled her n o tice of appeal o n June 26, 2013. 1 O n a p p e a l , she raises the
f ollowing claim s:
I. W hether the [ chancery ] court erred as a m atter of l a w i n f inding the om ission of the w ord “line” f rom the Deed of Trust, Notice of Sale, and Trustee’s Deed has no ef

f ect on the v alidity o f the l egal description and the ensuing f

oreclosure s ale in light of [ the a p p e l l ate] court’s requirem ent f

or a correct legal description.
II. W hether t he [ chancery ] court erred a s a m atter of l aw i n f i nding that the f oreclosure sale conducted by the alleged T rustee, Appellee R obison, was valid in all r espects af ter a lso f inding Plaintif

f s indebted to another Trustee, U.S. Bank, N.A., as T rustee on behalf o f Mid-State Trust IV.

STANDARD OF REVIEW ¶8. I f t h e c h a n cery court’s f indings of f

act a re based o n substantial e videnc e a n d t h e
f indings are not an a

buse of discretion, m anif

estly wrong, clearly erroneous, o r t he result of
the application of an erroneous legal standard, then this Court will not d isturb the chancery
court’s f indings. Biglane v. Under The Hill Corp. , 949 So. 2d 9, 13-14 (¶17) (Miss. 2007) (quoting Cummings v. Benderman , 681 So. 2d 97, 100 (Miss. 1996)). W e review questions
of law utilizing the de novo standard. Id

. at 14 (¶17).

1 Wh ile T h o m as d id p articip ate in th e trial, h e d i d n o t f i l e a n o t i c e o f ap p eal; th eref o re, h e is n o t a p arty

to th e p resen t ap p eal.

5ANALYSIS

I. Validity of the Property Description ¶9. Hall’s f

irst issue on appeal is that the chancery court erred in f inding that the om ission
of t he word “line” f

r om a portion of the legal property description was harm less and that the

om ission h ad no im

pact o n the f

oreclosure sale’s validity

. According t o Hall, the om ission
of “line” f rom “centerline” m eans that the property description did not correctly describe the
property intended t o be sold a t f o r e c l o s u re. W hile Green Tree’s two expert witnesses
testif i ed that the om ission o f “line” would m ake no dif f erence i n the p roperty description’s validity , as the description still accurately describes the property , H a l l c laim s that this
rationale is based on a survey or’s o pinion a nd not what a “lay m an of average intelligence and
business prudence” would conclude. Hall say s that “ [ a ] centerline t o a lay m a n m ay indicate
there are lef

t and ri g h t lines, and a center m ay indicate a point where he [ (the lay m an)]
reaches with no expec t a t i o n o f m oving bey ond that point.” Hall f urther claim s that the

average lay

m an would be deterred f

rom b i d d i n g o n the property because the om ission of
“line” would m ake it dif

f icult to ascertain what property was being sold. ¶10. The Mississippi Suprem e Court has held that purpose of a notice of a f oreclosure sale
is “to advise the public o f w h a t i s t o b e sold, and the t im e when, and place where, and the

term s upon which it ma y b e b o u g h t

. ” G riffin v. Land , 214 Miss. 557, 5 67, 59 So. 2d 290,
293-94 (1952) (citation om itted). Put another way , “the essentials o f a notice of sale under
a trust deed are
. . . a s t atem e nt of the tim e, place, and term s of sale, and such a description

6of the property t o be sold as, if read by persons f am iliar w ith the neighborhood, will advise
them of what is to be sold

. . . .” Id. However, even i f t h e n o t ice o f s a le contains all the essentials, the suprem e court has noted that a notice of sale m ay still be f atally def ective if a “lay m an of average intelligence and business prudence” would be deterred f rom bidding

on t h e p r o p e r t y , as the bid would be considered unsaf e. F e d. Loan Bank v. Collom , 201
Miss. 266, 277, 28 So. 2 d 126, 1 2 8 ( 1 9 4 6 ). Furtherm o re, in r egard to errors in property descriptions, the suprem e c ourt explained in Seal v. Anderson , 235 Miss. 249, 254, 108 So. 2d 864, 865 (1959): The precise point of our decision is whether or not the description contained in the deed of trust and in the notice of sale is so f atally def ective as to render the deed of trust and the f oreclosure thereof void; that is to s a y w hether or not the description c reated a patent am biguity that cannot be aided by proof

. . . . ¶11. We f

a c e t he sam e issue explained in Seal of w hether a p roperty d escript i o n i s s o
f atally d ef ective as to set aside the f

oreclosure. 2 W e f

ind that the property description is not
f atally def ective, as it adequately describes the pro p e r t y b e i n g sold. H all disputes the
testim o nies of two expert witnesses at trial t hat there is n o dif f erence between “center” and

2 In S ea l , 2 3 5 M iss. a t 2 5 2 , 1 0 8 S o
. 2 d at 8 6 5 , th e S eals so u g h t t o c a n cel a d eed o f tru st an d f o reclo su re p ro ceed in g o n th e b a sis th at th e p ro p erty d escrip tio n in th e d eed o f tru st an d n o t ice o f sale d escrib ed th e p ro p erty as “T p
. 1 ” in stead o f “T p
. 1 S .” G o v e r n m en t su rv e y reco rd s p resen ted at trial sh o w ed th at “T p
. 1 ” co u l d n o t b e l o cated , as th e p ro p erty sh o u ld h av e b een d escrib ed a s “ T p
. 1 S ” o r “T p
. 1 N , R 1 3 W.” I

d

. at 2 5 3 , 1 0 8 S o
. 2 d at 8 6 5

. T h e su p rem e c o u rt a g reed , a n d i t f o u n d th at th e p ro p erty w as n o t ad eq u ately d escrib ed in th e d eed o f tru s t o r n o t ice o f s ale. Id

. at 2 5 7 , 1 0 8 S o
. 2 d at 8 6 7 (“[ W] e f in d f ro m th e p ro o f th at th ere is a T o w n sh ip 1 N an d a T o w n s h i p 1 S , b u t th ere is n o t ‘T o w n s h ip 1 ’ in F o rrest C o u n ty .”).
7“centerline” when survey ing property , but she provides no proof that the property would be

any dif f e rent if m easured f

rom the “center” of the ditch as opposed t o the “centerline” of the
ditch. W hile the def

inition of “center” and “centerline” m ay d if f er in the dictionary , Hall has
f ailed to dem onstrate h ow an average person, in i nspecting the propert y p u r s u a n t to the
property description om itting “ line,” would be unable to a s certain the property being sold or would be deterred f

rom bidding on the property

. ¶12. Theref

ore, we f i nd this issue to be without m e rit.
II. Trustee ¶13. Second, Hall contends that R obison was no longer t he trustee due to an assignm ent
of the deed of

trust; theref

o r e, he lacked the authority to conduct the f

oreclosure sale. ¶14. Mississippi Code Annotated section 8 9

- 5

- 4 5 ( R e v
. 2 0 1 1 ) p r o v i d e s t h a t t h e s u b s t itution
of a trustee “shall appear of record in the o f f ice of the chancery clerk of the county where the
land is situated,” and be “spread at large upon t h e r e c o r d b ef ore the f irst advertisem ent or notice of sale sha ll h ave been posted or published[ .]” The i nitial deed of trust nam ed
Robison as trustee, and the record is v oid of any substitution of a trustee. W e note that Hall
has cite d n o a u t h o r i t y to support her contention that t he a s signm ent of a d eed of trust

autom atically rem oves the trustee on the initial deed of trust, especially

without the proper
substitution of a tru s tee pursuant to section 89-5-45. See M .R.A.P. 28(a)(6); Little v.
Norman , 1 19 So. 3d 3 82, 386 (¶14) (Miss. Ct. App. 2013) (“The f ailure to cite authority in support of

argum e nts operates as a procedural bar on appeal.”).

8¶15. W e f ind this issue to be without m erit. ¶16. T H E J U D G M E N T O F T H E C H A N C E R Y C O U R T O F S U N F L O W E R COUNTY I S AFFIRMED. A LL COSTS OF T HIS APPEA L A R E ASSESSED TO THE APPELLANT. LEE, C.J., IRVING AND G R I F F I S, P.JJ., BARNES, I SHEE, CARLTON, MAX W ELL, FAIR AND JAMES, JJ., CONCUR.

9