           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                         January 25, 2008

                                     No. 07-60328                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


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.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                           No. 07-60328

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

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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 Temple-
Inland “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 Temple-
Inland. 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

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     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 Temple-
     Inland, 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.



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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 that they 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

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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

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                             No. 07-60328

         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.




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