E-Filed Document Apr 7 2017 15:30:20 2016-CA-01770 Pages: 28 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI FRANKLIN N. WILLIAMS APPELLANT VS. 2016-CA-01770 US BANK TRUST, N.A. APPELLEE BRIEF OF APPELLANT ORAL ARGUMENT REQUESTED \ Briley Richmond Attorney at Law MS Bar No. 5340 2112 Bienville Blvd Suite I Ocean Springs, MS 39564 228-282-5303 On behalf of Franklin N. Williams, Appellant 1
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI FRANKLIN N. WILLIAMS APPELLANT VS. 2016-CA-01770 US BANK TRUST, N.A. APPELLEE CERTIFICATE OF INTERESTED PARTIES The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the justices of the Supreme Court, and/or the Judges of the Court of Appeal may evaluate possible disqualification or recusal: Franklin N. Williams, Defendant in the case below, appellant Briley Richmond, Counsel for Franklin N. Williams US Bank Trust, N.A. Plaintiff below, appellee Gene D. Berry, Counsel for US Bank Trust, N.A. Priority Trustee Services of Mississippi, LLC, as Substitute Trustee under the deed of trust that is the subject of this action By: Attorney of Record for Appellant, Franklin N. Williams, Briley Richmond MS Bar No. 5340 2
TABLE OF CONTENTS Table of Cases: 4 Statement of Issues: 5 Statement of Assignment na Statement of the Case 6 Summary of the Argument 8 Argument 10 Conclusion 26 3
TABLE OF CASES, STATUTES, AND OTHER AUTHORITIES CITED Cases: ESTATE OF DYKES v ESTATE OF WILLIAMS 864 So. 2d 926 (Miss. 2003) No. 2002-CA- 00944-SCT. 20,21 GROUND CONTROL, LLC v CAPSO INDUSTRIES, INC., W.G. Yates & Sons Construction Company and Harrah's Entertainment, Inc. No. 2011-IA-00928-SCT (2013) KNIGHT PROPERTIES, INCORPORATED, et al v. STATE BANK AND TRUST COMPANY, 77 So3d 491 (Miss.App 2011) No. 2009-CA-01429-COA. 10 11,12 PRUITT v PAYNE (14 So. 3d 806) No. 2008-CA-00172-COA 21,22 Statutes and other authorities: Federal Fair Debt Collection Practices Act, 15 USC 1692 et seq. 15 Federal Fair Debt Collection Practices Act 15 USC 1692 (2) (A). 16 Mississippi Code Section 89-1-49 11 Rule 56 (e) of the Mississippi Rules of Civil Procedure 23,25 Rule 602 Mississippi Rules of Evidence 24 Rule 803 (6) Mississippi Rules of Evidence 24 4
STATEMENT OF ISSUES 1. Whether the doctrine of estoppel and/or election of remedies shall preclude the reformation of a deed of trust that has already been foreclosed and a Substitute Trustee s Deed issued for a cash payment 2. Whether the facts as presented in Appellant Franklin s Affidavit and related pleadings are sufficient to present a defense of Unclean Hands on the part of the Bank/Appellee precluding the Bank from proceeding in a court of equity seeking relief 3. Whether an affidavit of a person having no personal knowledge of the transaction can establish a scrivener s error. 5
STATEMENT OF THE CASE This matter is an appeal from an order granting summary judgment by the Chancery Court of Pearl River County, Mississippi. The original action filed by the Plaintiff, US Bank Trust N.A. seeks the reformation of a deed of trust that had already been foreclosed prior to the beginning of this action. Defendant Franklin N. Williams filed an answer in the matter, together with affirmative defenses, most notably the estoppel created by the prior foreclosure of the deed of trust, which foreclosure sale resulted in a cash payment to the trustee of an amount of money in excess of $110,000, an amount sufficient to pay any sums secured by the deed of trust, a sum that has not been accounted for at any time up unto the present, and the unclean hands of the Plaintiff/Bank in the manner in which it has conducted itself throughout this matter. The Substitute Trustee has been made a party to these proceedings as the Substitute Trustee has failed to account for any of its actions in this matter, and has failed to account for the money in its hands. This party has filed no pleadings nor participated in the proceedings. Plaintiff/Bank filed a motion for summary judgment. an affidavit. Defendant/Franklin filed a response to the motion for summary judgment in the form of 6
Plaintiff then filed an affidavit by one David Lopez. The affidavit of David Lopez does not comply with the Rule 56 of the Mississippi Rules of Procedure as Mr. Lopez had no personal knowledge of the matters of which he made affidavit. The Court entered summary judgment on behalf of the Plaintiff. Statement of the Facts Relevant to the issues presented for review: Appellant/Defendant Franklin N. Williams (hereinafter Franklin) executed a Deed of Trust to Ameritrust Mortgage Company on February 23, 2004. The original amount owing was $106,000.00. (transcript of the record page 25) That mortgage was subsequently assigned to the Plaintiff/Appellee US Bank Trust N.A. (hereinafter Bank), and the trustee was substituted to name Priority Trustee Services of Mississippi, LLC as substitute trustee. Bank then had the substitute Trustee foreclose the deed of trust and on October 9, 2014, the Substitute Trustee did in fact foreclose the deed of trust through a cash sale and received for the foreclosure the sum of $110,286.58, and a Substitute Trustee s Deed was executed (transcript page 215, portion pertaining to the amount of money paid page 217). Following the foreclosure sale the Bank began a course of conduct that was in extreme bad faith in an attempt to have Franklin surrender valuable rights that he held in this matter. That these actions included the unlawful actions of a Debt Collector hired by the bank and a baseless lawsuit filed by the Bank, all in an attempt to terrorize and harass Franklin. Against this background this lawsuit was begun. The specific facts backing each issue assigned and briefed by Franklin are included in the argument for ease of presentation. 7
Summary of the Argument This is an appeal of an order for Summary Judgment entered on behalf of the Plaintiff (Bank). The civil action filed by Plaintiff/Bank sought the reformation of a Deed of Trust, citing a scrivener s error in the deed of trust. Among the items presented by the defendant (Franklin) as a defense were: 1. The deed of trust that is the subject of the litigation has already been foreclosed, that foreclosure having been performed some two years prior to the time that this action was begun. The sum of $110, 286.58 was received by the Substitute Trustee at the sale and remains unaccounted for. The Substitute Trustee did issue a Substitute Trustee s Deed and such deed is presently on file and of record in the office of the Chancery Clerk for Pearl River County. Defendant/Franklin would show that this prior foreclosure of this deed of trusts creates an estoppel and/or election of remedies that would preclude Bank from proceeding with this action. 2. The defendant/franklin brought a defense of unclean hands alleging that the actions of the Plaintiff in the run up to the filing of this civil action were so egregious as to bar the Plaintiff from seeking a remedy in a court of equity. That among the actions committed by Plaintiff/Bank were the referral of Franklin s account to a debt collector who used unlawful means to attempt to 8
collect the supposed debt, and the filing of another lawsuit against Franklin, a suit that had no merit and was filed only for harassing and vexatious purposes. 3. The circumstances surrounding the execution of the deed of trust were truly not clear, and there was a dispute as to what in fact actually happened at the closing. Compounding the problems brought about by Plaintiff/Bank s unclean hands is that though Plaintiff/Bank has made claim of scriveners error, no affidavit of scriveners error has ever been filed, nor has any person with personal knowledge of this transaction ever provided an affidavit or testimony as to exactly what it is that Plaintiff/Bank believes is the scrivener s error. The Defendant would show that the Court below made three essential errors: 1.. The Court failed to consider that the deed of trust that Plaintiff seeks to have reformed has already been foreclosed and a Substitute Trustee s deed issued, $110,285.000 having been paid to the Trustee, leaving any relief of the nature being pursued as untimely and barred by the doctrine of estoppel, or the election of Plaintiff to pursue an alternate, and mutually exclusive, remedy. 2. The Court failed to properly consider the Affidavit of Franklin, which affidavit, based on Franklin's personal knowledge, created legitimate issues of fact that need be addressed at a trial. That the issue that the affidavit addressed involved the unlawful activity, and related egregious actions, of the Bank which would support Defendant/Franklin s defense of unclean hands. 3. The Court did erroneously consider an affidavit submitted by Plaintiff/Bank that was presented to support the Bank s claim of scrivener s error, but was prepared by a person having no personal knowledge of the facts of the case about which the affidavit covered. The affidavit 9
that does not meet the requirements of Rule 56(e) of the MRCP, and as such should not have been considered by the Court. The affidavit specifically addresses the issue of scrivener s error, though the Bank admits the affiant was not at the closing of the real estate transaction, and the affidavit was made by a person in Dallas, Texas, who is not the scrivener, some 10 years after the closing which occurred in Pearl River County, Mississippi. ARGUMENT STANDARD OF REVIEW Franklin would submit that the standard of review in a matter such as this, that is granting of summary judgment, is de novo. GROUND CONTROL, LLC v CAPSO INDUSTRIES, INC., W.G. Yates & Sons Construction Company and Harrah's Entertainment, Inc. No. 2011-IA- 00928-SCT (2013) 1. The Court erred when it failed to consider that the deed of trust that is at the center of this action has already been foreclosed, and the Substitute Trustee at that sale received a cash payment of $110,286.58, an amount sufficient to completely pay off the underlying indebtedness, and which payment, by paying in full the indebtedness secured by the deed of trust, satisfies the deed of trust rendering the deed of trust extinguished. 10
The Substitute Trustee for this deed of trust held a foreclosure sale under the deed of trust. A copy of the Substitute Trustee s deed is contained in the record of these proceedings at (Transcript of the record page 215). That deed establishes the following facts: a) The Deed of Trust foreclosed is in fact the Deed of Trust that is the subject of this action. A review of the substitute trustee deed shows that the substitute trustee s deed was executed under the powers contained in the deed of trust filed of record in the office of the Chancery Clerk of Pearl River County at book 1134 page 48 of the records of deeds of trust for Pearl River County, Mississippi. The deed of trust that is the subject of this action, as attached as an exhibit to the original complaint in this matter, is in fact that deed of trust. (Transcript page 25) b) The sale under the powers of the deed of trust was conducted on October 9, 2014. The Substitute Trustee, Priority Trustee Services of Mississippi, LLC, did on that date receive $110,286.58 cash in hand paid, receipt of which is hereby acknowledged,.. at the sale for the real estate secured by the deed of trust. The amount and circumstances were recited by the Substitute Trustee in the deed (Transcript 215, recitation of amount at 217). c) The original deed of trust that was foreclosed, that is the one involved in this action, was executed on February 23, 2004, and secured an original amount of $106,000.00. At the time of its foreclosure the deed of trust was over 10 years old, and the amount received at the foreclosure sale, $110,286.58 exceeds the original amount owed by over four thousand dollars. Franklin would submit that a finder of fact could logically determine that the amount paid at the foreclosure sale exceeded the amount owed. The amount paid certainly is sufficient to defeat any claim for summary judgment, as the amount owed and the money received could be more precisely determined at a trial. 11
Traditionally in Mississippi it has been our law that full payment of the indebtedness secured by a deed of trust extinguishes the deed of trust. Mississippi Code Section 89-1-49, addresses this issue, though in a different context. This Court has addressed this issue however in KNIGHT PROPERTIES, INCORPORATED, et al v. STATE BANK AND TRUST COMPANY, 77 So3d 491 (Miss.App 2011) No. 2009-CA-01429-COA. That action involved a suit for a monetary judgment by a lender on an indebtedness also secured by a deed of trust. In Knight the lender had served notice of an intention to foreclose on its security. The lender then apparently changed its mind and elected to pursue a monetary judgment against the obligors under the deed of trust. The court addressed the issue of election of remedies and described the elements necessary to prevail under such a defense and at paragraph 12 of the decision laid out the factors: the three necessary elements of the doctrine of election of remedies: (A) existence of two or more remedies, (B) inconsistency between such remedies, and (C) a choice of one of the remedies The Court noted in its decision that the lender in Knight had provided notice of intention to foreclose, but had changed directions in its actions, stopped the foreclosure action, and only then proceeded with a suit for a monetary award instead of the foreclosure. In ruling there was no election of remedies the court stated: A claim must be litigated to its conclusion in order to warrant the defense of election of remedies to bar a subsequent cause of action. Paragraph 16 12
In the case before the Court today the lender did indeed proceed all the way through a foreclosure and elected its remedy. The remedy it chose was the $110,286.58 cash in hand paid to the Substitute Trustee at the foreclosure sale. Franklin would submit that the actions of the lender in having the Substitute Trustee sell the collateral at the foreclosure sale was in effect the litigated to its conclusion of which the Court had written in Knight. The Substitute Trustee received $110,286.58 at the foreclosure sale. That is a complete remedy as it is apparent that the amount received by the Substitute Trustee exceeds the amount owed on the original deed of trust and suggests that the amount received was at least as much as that owed, and perhaps was more. That amount of money is all the lender is entitled to receive. Perhaps the purchaser is suffering buyer s remorse. Perhaps the purchaser has re-evaluated its decision and now believes that it was not a good business decision to purchase the real estate, especially since the Substitute Trustee had made it clear that the property was being sold as is where is. But that is truly not the matter before the Court today. The matter before the court today is the uncontroverted evidence that the lender under the deed of trust that is in issue in this action has exhorted the Substitute Trustee to conduct a foreclosure sale under the deed of trust. The Substitute Trustee did in fact conduct the sale, and at the sale received a sum that suggests it was full payment, and at a very minimum suggests that this matter is not ripe for summary judgment as the amount of $110,286.58 remains unaccounted for. Franklin believes that some of that money is rightfully his and requests this Court reverse the decision of the trial court and render the matter dismissed, or in the alternative remand it to the Chancery Court of Pearl River County, Mississippi so the matter of an accounting for the funds be had. 13
2) The Court below erred when it failed to properly consider THE AFFIDAVIT OF DEFENDANT (FRANKLIN) in reaching its decision the following: In entering the order for Summary Judgment the Court below stated that it had relied on The Court has considered the Motions and Responses and supporting documents, including exhibits, has considered oral argument from counsel for the Plaintiff and from the Defendant, pro se, and has considered the Affidavit of Plaintiff and Motion to Strike Affidavit and for Related Relief of Defendant, as well as the pleadings in the court record. Though the Trial Court in its decision made mention of the fact that Franklin s Response to the Motion for Summary Judgment was under oath, it is not clear that the Court fully considered it in its decision. Most notable is the statement of the Court at page 9 of its order that: The Defendant has offered no evidence as to disputed issues of material fact in opposition to Plaintiff's evidence. While his Motion to Strike is procedurally correct, there is no affidavit or other such evidence supporting his defense or his Counter Motion for Summary Judgment contrary to that submitted by Plaintiff which creates any issue of material fact for trial in this case. The statements of the Court are simply not correct. Defendant did indeed submit an affidavit in this matter which specifically addressed both the issue of estoppel and the issue of 14
unclean hands. The Court failed to consider it. The affidavit is contained in the record of the court below and can be found at page 179 of this record, with the Jurat being specifically located at 188 of the transcript of the record.. The remaining portions of this brief are predicated on the fact that Defendant Franklin did indeed present an affidavit and that affidavit addressed his various defenses, which defenses will be more fully presented at the appropriate time in this brief: 3) The trial court erred, when in reaching its decision, it failed to consider or take into account the defense of unclean hands tendered by the Defendant During the lead up to the filing of this action the Bank engaged in quite egregious, fraudulent, and at times, unlawful activity in attempting to force Defendant to surrender important rights in this matter. Most notable in this regard was the hiring of a collection agent which employed actions in violation of the Federal Fair Debt Collection Practices Act, 15 USC 1692 et seq. Franklin received a letter from, MARISOL LAW GROUP dated, Nov 18, 2014. A copy of the letter is contained in the transcript of the record (trans 220). 15
The preparer of the letter acknowledged in the letter that the letter was This is an attempt to collect a debt and any information obtained will be used for that purpose. Franklin would submit that this statement in the letter acknowledges that the writer, Floyd Healy, Esq., was a debt collector acting in that capacity as such is defined by the Fair Debt Collection Practices Act and as such was subject to the regulations covering him and his debt collection practices. The letter contained the following assertions: 1) Mr. Healy was acting on behalf of U.S. Bank Trust, N.A., which is the Plaintiff in the case before the Court today. As Mr. Healy was acting as an agent on behalf of Bank, Bank is bound by his unlawful activities. 2) The Debt Collector in his letter stated that Franklin s property had been sold. Franklin would show that such representation was a false representation of the character, amount, or legal status of any debt, as such actions are precluded by Section 16 USC 1692 (2) (A). 3) The Debt Collector in his letter further stated that Franklin was the former owner of the property. Franklin would show that such representation was a false representation of the character, amount, or legal status of any debt, as such actions are precluded by Section 16 USC 1692 (2) (A). 4) The letter went on, demand is hereby made that you quit and return possession of the above referenced property within ten (10) days of the date of this Notice Franklin would show that such representation was a false representation of the character, amount, or legal status of any debt, as such actions are precluded by Section 16 USC 1692 (2) (A). 16
The facts alleged in the letter were untrue, and Plaintiff knew it. The letter alleged that Franklin did not own his home and implored him to leave his home. Plaintiff knew this was not true, and knew it was not true when it hired the collection agency. Plaintiff was engaged in action in concert with the collection agency. The Bank did not hold a valid deed to the property on which Franklin s home sits. All allegations as to this regard were fraudulent and were an unlawful attempt to coerce Franklin into surrendering his home. Bank was a party to this fraud, was a party to this unlawful activity. Activity such as this is clearly covered by the Federal Fair Debt Collection Practices Act, and is clearly unlawful. This activity, the unlawful collection practices employed by Bank was merely one of its actions that give rise to the defense of unclean hands. The actions of Plaintiff provided a cornucopia of bad faith and unclean hands. A review of the activities of all parties in this matter is necessary for the complete presentation of the issue of unclean hands, beginning with, a) The original Deed of Trust. The Deed of Trust for which these proceedings are being held is dated February 23, 2004, and can be found recorded at Book 1134, page 48 et seq of the records of Deeds of Trust for Pearl River County, Mississippi. (transcript 25 ). The real estate covered by this deed of trust is described as being in Section 26, Township 4 South, Range 14 West, Pearl River County, Mississippi. 17
It is a question of fact unresolved, but it is believed by Franklin that his home sits on Section 27, Township 4 South, Range 14 West, Pearl River County, Mississippi. It should be noted that at the time Franklin discovered this apparent discrepancy he notified the Bank and requested their assistance in clearing the matter up. He was told by Bank representatives that he was wrong, and they were content that their documents were correct. Franklin, while relying on the representations of the Bank representatives that they did not care to see if he was right or participate in any corrective activity, began a process of attempting to satisfy his mind on the matter. Had the Bank representatives not taken the action that they took, he would not have taken the actions he took. His actions were based on his reliance on the representations of the Bank. This is all covered in the Affidavit of Franklin (transcript 179) b) The error contained in the Assignment of the Deed of Trust to the Bank The Bank compounded the error when it handled the assignment by which it received title to the deed of trust. It claimed in that assignment that the property was located in Stone County. This assignment dated March 27, 2014, recorded in Book 1653, page 506 et seq of the records for Deeds of Trust for Pearl River County. (transcript page 201) c) The first notice of sale under the deed of trust The substitute trustee, pursuant to the direction of the Plaintiff, then posted a notice of sale at the Courthouse, (transcript 208) for a sale on 20 June, 2014. As is shown, that notice is for a piece of property located in Section 26. The following is from Franklin's affidavit, previously discussed in this brief, 18
I had previously communicated to the Plaintiff and its representatives that there was a problem with their deed of trust, that my home did not sit on Section 26, but rather was on Section 27. My attempts to communicate with Plaintiff were met with derision and ridicule. Plaintiff refused to assist me in clearing the matter up. Instead it embarked on this long journey of fraudulent foreclosures, and now litigation (transcript 162) Further going on, Franklin in his affidavit stated, When I was first notified of the attempt of the Substitute Trustee to foreclose my home on July 24, 2014, I had my lawyer contact the Plaintiff again (I had previously contacted them and had my attorney contact them) and tell them my home is not on Section 26, but rather was on Section 27. I had gone to great trouble and expense to have a deed prepared to clear the matter up for me and I had to pay consideration for the execution and delivery of a deed. I informed the Plaintiff that they should they wish to discuss the matter I would be willing to and perhaps we could resolve this conflict without going through this foreclosure. The response of the trustee was to simply redraft the Notice of Sale and change the property description to Section 27, rerun the notice, and set the sale for October 9, 2014. (transcript 182) d) The second notice of sale As explained by Franklin in his affidavit, This second notice of sale dated September 10, 2014 was then prepared and posted at the courthouse. Likewise this second notice was also run in the newspaper. (transcript 183). This sale is for a parcel of land located in Section 27, Township 4 South, Range 14 West, Pearl River County, Mississippi. (transcript 183). e) The Sale on October 9, 2014 19
The Substitute Trustee did conduct a sale of Franklin's home and sold it for $110,286.58. The Substitute Trustee Deed is filed for Record October 21, 2014, at Book 1094, pages 135 through 139, of the record for deeds of Pearl River County. The deed reflects that the purchaser paid to the Substitute Trustee the sum of $110,286.58. (transcript of the record deed at 215, amount paid at 217) f) The Substitute Trustee Deed (transcript of the record deed at 215, amount paid at 217) A copy of the Substitute Trustee Deed can be found at Book 1094, page 135-139. The Substitute Trustee states in the conveyance that he has been paid...the price and sum of $110,286.58, cash in hand paid, the receipt of which is hereby acknowledged... There is nothing in the record to reflect what has become of these funds. The record reflects that the Substitute Trustee received $110,286.58. No accounting has been made for these funds, and once again the Plaintiff and the Substitute Trustee are shown to be acting with unclean hands. $110,286.58 is unaccounted for and they bring this suit? g) The prior law suit The Bank then filed an action against Franklin seeking to have him evicted from his home. US Bank Trust, N.A.et al vs Franklin N. Williams Cause No. CO 2015-0038 in the Pearl River County County Court. Date of the suit is February 13, 2005 ( transcript of the record 222). This suit was dismissed on December 21, 2015 (transcript of the record 225). 20
The Doctrine of Unclean Hands is a well established cornerstone of our common law legal system, and is the subject of much comment in our Courts. This Court has described it as follows: ESTATE OF DYKES v ESTATE OF WILLIAMS 864 So. 2d 926 (Miss. 2003) No. 2002- CA-00944-SCT at 932. However it is one of the oldest maxims of the law that no man shall, in a court of justice, take an advantage which has his own wrong as the foundation for that advantage To employ this maxim, the conduct need not be of such a nature as to be criminal or justify any legal proceedings, but there must simply be a wilful act concerning the cause of action which can be said to transgress the equitable standards of conduct. Paragraph 25 Let us review this standard as it relates to the collection letter submitted by the agent of Plaintiff, the Marisol Group. This letter, as shown in the brief above, is clearly an unlawful act under our federal laws. ESTATE OF DYKES uses the statement, the conduct need not be of such a nature as to be criminal or justify any legal proceedings, but there must simply be a wilful act concerning the cause of action which can be said to transgress the equitable standards of conduct. Certainly the violation of Federal law in the preface to this lawsuit would be a wilful act concerning the cause of action which can be said to transgress the equitable standards of conduct. Franklin would submit that this action alone would constitute sufficient unclean hands as to bar the Plaintiff from seeking equitable relief in this Court. Let us review the matter of the money received at the foreclosure sale. The Substitute Trustee has acknowledged that he received in excess of $110,000.00 at a foreclosure sale under the deed of trust at issue here. The unclean hands doctrine comes into play here. Plaintiff is 21
attempting to use the judicial machinery to obtain a remedy where the Plaintiff has violated good faith. In PRUITT v PAYNE (14 So. 3d 806) No. 2008-CA-00172-COA, the Court stated the meaning of this maxim is to declare that no person as a complaining party can have the aid of a court of equity when his conduct with respect to the transaction has been characterized by wilful inequity at Paragraph 13, In sum, whenever a party seeks to employ the judicial machinery in order to obtain a remedy and that party has violated good faith or some other equitable principle, the doors of the court shall be shut against him and the court will refuse to interfere on his behalf, to acknowledge his right, or to award him any remedy. Paragraph 13. Good faith? The Plaintiff has caused the property secured to be foreclosed and sold on the courthouse steps. The Substitute Trustee has received at that sale the sum of $110,286.58, and now seeks to begin this action without so much as accounting for the money. Franklin would submit that this is not good faith. Franklin would submit that the entire process carried out by the Bank throughout these proceedings has smacked of unfair dealing, bad faith, and unclean hands. Bank has employed a collection agent to collect an unlawful debt using unlawful tactics. Bank has sought to assign a deed of trust in Pearl River County with an assignment prepared for a Stone County legal description. Bank has authorized the sale at foreclosure of a piece of real estate that was not subject to any deed of trust by simply having the Substitute Trustee change the description on the deed of trust using no lawful authority. The Bank has sought to have Franklin evicted from 22
his home with Bank knowing it had no lawful claim or legal right to bring such an action. And finally, Bank has sought legal remedy in a court of equity without accounting for the sum of $110,286.58 received at a foreclosure sale, an amount of money that appears to be sufficient to pay off Franklin s entire debt. Any of several of Bank s actions should bar it from proceeding in this action. The sum total of the actions of Bank are simply overwhelming in their bad faith an unclean hands aspects. 4) The Court erred in reaching its decision when it relied on THE AFFIDAVIT OF DAVID LOPEZ, dated 23 September 2016 (page 226 of the transcript) As previously stated, the Court, in reaching its decision, relied on an affidavit presented by Plaintiff (Bank) The Court has considered the Motions and Responses and supporting documents, including exhibits, has considered oral argument from counsel for the Plaintiff and from the Defendant, pro se, and has considered the Affidavit of Plaintiff and Motion to Strike Affidavit and for Related Relief of Defendant, as well as the pleadings in the court record. The Court erred in relying on this affidavit for the following reason: 1) It is not based on the personal knowledge of the affiant. Though the affidavit states it is made on personal knowledge, two matters belie this statement. a) The real estate transaction that gives rise to this case occurred in Pearl River County, Mississippi, in 2004. The affidavit being questioned is made by a bank official in Dallas, Texas 23
in 2016. Franklin would submit that an affidavit made 12 years after the fact and a thousand miles from the disputed transaction would require a little more than a simple statement, I have personal knowledge of the facts stated herein. Franklin would submit that this is not sufficient to meet the tests of Rule 56 (e) of the Mississippi Rules of Civil Procedure, where the test is laid out as follows,...affidavit shall be made on personal knowledge, shall set forth facts as would be admissible in evidence, and shall affirmatively set forth that the affiant is competent to testify to the matters stated therein. Nothing in this affidavit addresses the specific competency required by Rule 602 of the Mississippi Rules of Evidence. Quite the opposite, the time and distance differences between the transaction and the affidavit suggest that this is a bank official, not a party present at the closing. Though the bank officials affidavit may be acceptable for the establishment of amounts owed, if any, as that would be an exception to the Hearsay Rule under Rule 803 (6), Records of a Regularly Conducted Activity, under the Mississippi Rules of Evidence that rule would not extend to matters of the occurrences at a loan closing transaction 12 years and a thousand miles removed from the affidavit, as the matter of a scrivener s error, by its nature would not lend itself to this rule, as the error, if any, would be discovered at a time and place far away from the records being maintained, and would not be the type of matter traditionally maintained in the records. 2) Defendant, Franklin, brought the issue of the lack of personal knowledge of the affiant up on his Motion to Strike Affidavit and for Related Relief, filed September 29, 2016 (transcript 248 ) 24
statement, In that motion Franklin, who was the party present at the closing makes the following a. Mr. Lopez was not the scrivener in this matter and has no knowledge whatsoever as to any scrivener's error in this matter, whether one was made or not. He was not the scrivener, he was not present at the transaction... (from Franklin's motion to Strike, page 248 Transcript of the record) In the Response to Motion to Strike Affidavit and Reply in Support of Summary Judgment, Plaintiff admits that Mr. Lopez was not present and has no personal knowledge of what happened at the loan closing: At page 4 of that Response Plaintiff states the following: There is no legal requirement that the affiant be present at the closing of the transaction. (transcript 253, response to motion to strike, page 256 for the above statement). Yes there is. There is a legal requirement pursuant to Rule 56 of the MRCP that the affiant have personal knowledge of the matter to which he is making affidavit. Franklin concedes that for purposes of amount owed that a bank executive in Dallas would have the evidentiary basis to make the affidavit, but only for the amount owed.. This exception to the Hearsay Rule would not extend to the facts and activities that occurred at a closing that had occurred 12 years earlier and a thousand miles away. Was Mr. Lopez present at the closing? Franklin, in his Motion to Strike states on his personal knowledge that he was present at the closing, and Mr. Lopez was not. The Plaintiff, in response to the Motion to Strike has admitted that Mr. Lopez was not there. Mr. Lopez lacks the 25
specific competency to provide an affidavit as to a supposed scrivener's error that occurred 12 years and a thousand miles away from his affidavit. The Court below erred in considering this affidavit in its decision. And though it has been suggested earlier, but not clearly stated, no affidavit of scrivener's error has ever been filed in the Pearl River Courthouse, or submitted to the trial court, and Franklin would submit that any obligation to produce such affidavit would be the obligation of the Bank. The Bank has not produced one. There is not one. In short, there is no evidence whatsoever before this court upon which a judgment can be made that there was a scrivener s error CONCLUSION So, What happens next should this Court affirm this decision. The Deed of Trust has already been foreclosed. A Substitute Trustee s Deed has been issued. $110,000.00 has changed hands. Will the bank foreclose again? Will there be an accounting for the money? What happens to the Substitute Trustee Deed now on the record? Mississippi allows non-judicial foreclosure, but such must be handled with care. In the case before the Court today a bank has acted very cavalierly in its handling of a transaction. The bank has created great problems for Franklin. The Bank should be made to answer for its unclean hands, it s short sighted and unethical conduct. It should be estopped from proceeding in this matter. 26
For the reasons cited in this brief, Appellant Franklin N. Williams requests that this Court reverse the decision of the trial court and dismiss this action with prejudice. /s/briley Richmond MS Bar No. 5340 2112 Bienville Suite I Ocean Springs, MS 39564 228-282-5303 brich.biloxi@gmail.com fax: 228-872-0499 CERTIFICATE OF SERVICE pleading or I hereby certify that on this day I electronically filed the foregoing other paper with the Clerk of the Court using the appellate e-filing system, which sent notification of such filing to the following: Gene D. Berry, Esq This the _7 day of April, 2016. /s/ Briley Richmond Briley Richmond 27
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