IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI. No CA COA

Transcription

1 E-Filed Document Jul :15: CA COA Pages: 7 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI No CA COA CRAIG W. CLEVELAND APPELLANT/CROSS- APPELLEE VS. DEUTSCHE BANK NATIONAL TRUST COMPANY, SOLELY IN ITS CAPACITYAS TRUSTEE FOR GSAMP MORTGAGE LOAN TRUST 2002-HE2 APPELLEE/CROSS- APPELLANT VS. CRAIG W. CLEVELAND CROSS-APPELLEE Appeal from the Chancery Court of Prentiss County, Mississippi (Hon. Jacqueline Estes Mask) APPELLEE/CROSS-APPELLANT DEUTSCHE BANK NATIONAL TRUST COMPANY, SOLEY IN ITS CAPACITY AS TRUSTEE FOR GSAMP MORTGAGE LOAN TRUST 2002-HE2 S RESPONSE IN OPPOSITON TO APPELLANT/CROSS-APPELLEE CRAIG W. CLEVELAND S MOTION FOR REHEARING Jason E. Fortenberry (MSB #102282) Anna Sweat Day (MSB #104485) BRADLEY ARANT BOULT CUMMINGS LLP 188 East Capitol Street, Suite 400 Jackson, MS Telephone: (601) Facsimile: (601) jfortenberry@bradley.com asweat@bradley.com Attorneys for Appellee/Cross-Appellant Deutsche Bank National Trust Company, Solely in its Capacity as Trustee for GSAMP Mortgage Loan Trust 2002-HE2 July 5, 2016

2 Appellant/Cross-Appellee Craig W. Cleveland s ( Cleveland ) motion for rehearing asks the Court of Appeals to, once again, re-examine arguments that the Chancellor and this Court properly and thoroughly considered. The motion does not raise any new arguments and does not provide any valid reason for the Court to grant rehearing. On June 14, 2016, this Court affirmed the judgment of the Chancery Court of Prentiss County, which found that the lien of Deutsche Bank was not extinguished for its lack of action to protect or enforce its lien in connection with the disputed tax sale. Cleveland v. Deutsche Bank, No CA COA, 2016 WL (Miss. Ct. App. June 14, 2016) (the Opinion ). On June 28, 2016, Cleveland filed a motion for rehearing (the Motion ), simply rehashing the arguments he made at the trial level and to this Court. Motions for rehearing are governed by Mississippi Rule of Appellate Procedure 40, which requires a motion for rehearing to state with particularity the points of law or fact which, in the opinion of the movant, the court has overlooked or misapprehended.... Miss. R. App. P. 40(a). The Rule expressly cautions that the motion for rehearing is not intended to afford an opportunity for a mere repetition of the argument already considered by the court. Id. See also Brandau v. State, 662 So. 2d 1051, 1052 (Miss. 1995). Contrary to Cleveland s argument, the Court properly held that Deutsche Bank should not be equitably estopped from asserting its lien on the subject property. This holding is in accordance with Mississippi law. See, e.g., Stribling Bros. Corp. v. Eucild Memphis Sales, 235 So. 2d 239, 243 (Miss. 1970) ( Since [the lender s] lien was of record it had a right to remain silent. ); Davis v. Butler, 91 So. 279, 280 (1922) ( With this deed of record he had a right to be silent. ). Cleveland s other contention that the Court overlooked whether Deutsche Bank maintains a valid lien based on his statute of limitations argument is also without merit. 1

3 Motion at 4. In response to Cleveland s suit to quiet and confirm title based on the tax sale, Deutsche Bank filed a counterclaim requesting a declaratory judgment that Deutsche s lien interest in and to the property remains intact and that Cleveland takes the property, if at all, subject to Deutsche s lien. R. 96; R.E Deutsche Bank did not put the entire validity of its lien in question by filing the declaratory judgment action. Deutsche Bank simply asked for an adjudication that any tax sale had not affected its lien. Thereafter, Cleveland put the validity of the underlying Deed of Trust at issue by raising the statute of limitations as an affirmative defense in his answer to Deutsche Bank s counterclaim. R. 128; R.E. 315 ( Cleveland further affirmatively pleads the following affirmative defenses as may be applicable in this action: statute of limitations.... ). It is well settled under Mississippi law that the plea of statute of limitations is an affirmative defense for which the party asserting it has the burden of proof. Blessitt v. King s Daughters Hosp. of Yazoo Cty., Inc., 18 So. 3d 878, 881 (Miss. Ct. App. 2009) (citing Huss v. Gayden, 991 So. 2d 162, 165 (Miss. 2008)). By asserting this affirmative defense, Cleveland assumed the burden of proof to establish the statute of limitations invalidated the promissory note and Deed of Trust, which were otherwise valid on their face. At the summary judgment hearing, Cleveland presented his statute of limitations defense to the trial court but provided absolutely no evidence or testimony in support of that issue, which he bore the burden of proof. Hrg. Tr. at 53-54; R.E The only relevant evidence in the record for the Chancellor to consider with respect to this issue was the Deed of Trust and promissory note, and both are valid on their face until As set forth in each of these 1 In the very first paragraph of Deutsche Bank s counterclaim, it states: This is an action seeking a declaratory judgment that Cleveland takes the subject property, if at all, subject to Deutsche s lien on the property, which remains intact, due to violation of the notice requirements of Mississippi Code et seq. R. 97; R.E

4 instruments, monthly payments are required with the full debt, if not paid earlier, due and payable on March 1, R. 136, 139; R.E. 139, 142. Because the loan is payable in installments and payments are to be made until the maturity date in 2030, Cleveland s statute of limitations defense failed. See Miss. Code Ann ( Where the remedy to enforce any... lien... which is recorded, appears on the face of the record to be barred by the statute of limitations (which, as to a series of notes or a note payable in installments, shall begin to run from and after the maturity date of the last note or last installment), the lien shall cease and have no effect.... ); Walker v. Chase Manhattan Mortg. Corp., No. 1:12CV376 LG-JMR, 2013 WL , at *2 (S.D. Miss. Apr. 23, 2013) (rejecting plaintiff s statute of limitations argument because the note required installment payments and any remaining amount to be paid on the maturity date of December 1, 2031 and, therefore, the statute of limitations did not begin to run until 2031). Based on the evidence presented, the Chancellor ruled that Deutsche Bank s lien remains intact, and by doing so, effectively ruled that Cleveland s statute of limitations defense was not valid. This honorable Court also considered Cleveland s statute of limitations argument that he presented in both his appellate briefing and at oral argument. See Cleveland s Reply Brief at 5 n.7, Indeed, the focus of oral argument was on this very issue, as Cleveland s counsel conceded at oral argument that notice to both the borrower and Deutsche Bank was improper. Oral Argument, Cleveland v. Deutsche Bank (Miss. Ct. App. Feb. 9, 2016) (No CA COA), available at iyk7gpnnyjm. Because it was Cleveland s burden to prove his statute of limitations defense and he presented not one shred of evidence or testimony to challenge the facially valid Deed of Trust and promissory note in the record, the Court properly affirmed the judgment of the Prentiss County Chancery Court. 3

5 For these reasons, the Court s opinion contains no misstatements of law or fact, and the motion for rehearing should be denied. RESPECTFULLY SUBMITTED, this the 5 th day of July, /s/ Anna Sweat Day Jason E. Fortenberry (MSB #102282) Anna Sweat Day (MSB #104485) BRADLEY ARANT BOULT CUMMINGS LLP 188 East Capitol Street, Suite 400 Jackson, MS Telephone: (601) Facsimile: (601) jfortenberry@bradley.com asweat@bradley.com Attorneys for Appellee/Cross-Appellant Deutsche Bank National Trust Company, Solely in its Capacity as Trustee for GSAMP Mortgage Loan Trust 2002-HE2 4

6 CERTIFICATE OF SERVICE I, Anna Sweat Day, one of the attorneys for Deutsche Bank National Trust Company, solely in its capacity as Trustee for GSAMP Mortgage Loan Trust 2002-HE2, do hereby certify that I served by United States Mail, postage prepaid, on the 5 th day of July, 2016, a true and correct copy of the foregoing to the following interested parties: Thomas Cooley Langston & Lott, P.A. Post Office Box 382 Booneville, Mississippi Attorney for Appellant Jon J. Mims Rawlings & MacInnis, P.A. P.O.Box 1789 Madison, MS Attorney for Sinecure Investments, LLC David Bubba Pounds, Clerk Prentiss County Chancery Court 100 North Main Street Booneville, MS Mississippi Department of Revenue J. Ed Morgan, Commissioner 1577 Springridge Road Raymond, MS City of Booneville, Mississippi c/o City Clerk Booneville City Hall 203 North Main Street Booneville, MS Jim Hood, Attorney General for the State of Mississippi Walter Sillers Building 550 High Street Suite 1200 Jackson, MS I further certify that I have this day served by United States Mail, postage prepaid, a true and correct copy of the same, to: 5

7 Honorable Jacqueline Estes Mask Chancery Court Judge for Prentiss County, Mississippi P.O. Box 7395 Tupelo, MS Trial Court Judge THIS the 5 th day of July, /s/ Anna Sweat Day OF COUNSEL 6