        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                              NO. 2016-CA-00879-COA

TONY L. PAGADOR                                                         APPELLANT

v.

TRUSTMARK NATIONAL BANK                                                   APPELLEE

DATE OF JUDGMENT:                       05/17/2016
TRIAL JUDGE:                            HON. ROGER T. CLARK
COURT FROM WHICH APPEALED:              HARRISON COUNTY CIRCUIT COURT,
                                        FIRST JUDICIAL DISTRICT
ATTORNEYS FOR APPELLANT:                TIMOTHY BROWN
                                        WILLIAM JOSEPH KERLEY
ATTORNEYS FOR APPELLEE:                 WILLIAM “TREY” JONES III
                                        WILLIAM DEMENT DRINKWATER
                                        TAYLOR BRANTLEY MCNEEL
NATURE OF THE CASE:                     CIVIL - REAL PROPERTY
DISPOSITION:                            AFFIRMED - 08/29/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      EN BANC.

      LEE, C.J., FOR THE COURT:

¶1.   Tony Pagador appeals the judgment of the Harrison County Circuit Court granting

Trustmark National Bank’s motion for summary judgment arising from the foreclosure of

Pagador’s home. Following a de novo review, we affirm.

                      FACTS AND PROCEDURAL HISTORY

¶2.   In 2006, Pagador purchased a home at 13429 Libby Lane in Gulfport, Mississippi.

To purchase the home, Pagador entered into a deed of trust with T. Graham Mortgage Inc.,

which was secured with a promissory note. The deed of trust contained a “[r]ider” and
incorporated an addendum from the Department of Veteran Affairs (VA) guaranteeing the

loan, as Pagador was a veteran with the United States Coast Guard. T. Graham Mortgage

assigned the deed of trust to Trustmark National Bank.

¶3.    Pagador made timely mortgage payments on the loan up until June 2010, when he

learned that the house contained toxic Chinese drywall. Pagador and his family then moved

out of the home so that remedial work could be performed on the house. He asked Trustmark

for a forbearance from monthly loan payments for the period of time he and his family were

not living in the home while repairs were being made. Trustmark offered Pagador a special

VA forbearance and informed him by letter, which he signed and returned, that his loan was

in forbearance from July 1, 2010, through December 31, 2010. The letter further specified

that after December 31, 2010, Pagador would “be required to pay the total amount past due

for the period of time in which no payments were made . . . .”

¶4.    In May 2011, Pagador requested an additional forbearance period because the drywall

repair was still not complete. Trustmark issued a second forbearance period, which the

parties agree ended August 31, 2011. In September 2011, Pagador requested a third

forbearance period because the drywall remediation was still not complete. In an email to

Trustmark dated February 13, 2012, Karla Pagador, Pagador’s mother, alleged that James

Hodges, a VA representative, had verbally advised Pagador that Trustmark had extended the

forbearance until March 7, 2012. However, there was no communication, documentation,

or other evidence indicating Trustmark had granted a third or extended forbearance. Rather,

Pagador was notified by substitute trustee, Gerald Warren, via certified mail dated February



                                             2
10, 2012, that Trustmark was foreclosing on the home.

¶5.    Specifically, the notice letter stated that “Trustmark National Bank [had] previously

notified [Pagador] by certified mail that the above referenced loan [was] in default and

declared all of the indebtedness secured by [the deed of trust] . . . to be due and owing.” The

notice advised that Warren had been instructed to initiate foreclosure proceedings and stated

that the foreclosure was scheduled for March 22, 2012. The notice further provided that “[i]n

order to cure the default and reinstate the loan, the amount of $21,585.75 is due . . . .”

Finally, the notice advised that the loan must be reinstated or paid in full prior to the day of

sale, and if not reinstated or paid in full, then the foreclosure sale would proceed as indicated.

¶6.    It is undisputed that Pagador made no mortgage payments after June 2010. Pagador

did not cure the default, and neither did he object to the foreclosure. On March 22, 2012,

Trustmark foreclosed on Pagador’s home. Pagador now appeals.

                                 STANDARD OF REVIEW

¶7.    This Court employs a de novo standard when reviewing a circuit court’s grant of

summary judgment. Blanchard v. Mize, 186 So. 3d 403, 405 (¶11) (Miss. Ct. App. 2016)

(citing In re Admin. of Estate of May, 32 So. 3d 1227, 1229 (¶5) (Miss. Ct. App. 2010)).

Summary judgment should be granted where “the pleadings, depositions, answers to

interrogatories and admissions on file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact and that the moving party is entitled to a judgment

as a matter of law.” Id. (quoting M.R.C.P 56(c)). We must examine all of the evidence

before the trial court in the light most favorable to the nonmoving party. Id. “The party



                                                3
opposing the motion may not rest upon the mere allegations or denials of his pleadings, but

his response, by affidavits or as otherwise provided in Rule 56, must set forth specific facts

showing that there is a genuine issue for trial.” Id. (quoting Estate of May, 32 So. 3d at 1229

(¶5) (quoting M.R.C.P. 56(e))). “Bare assertions are not enough to avoid summary judgment

. . . .” Lott v. Purvis, 2 So. 3d 789, 792 (¶11) (Miss. Ct. App. 2009) (internal quotations and

citations omitted).

                                       DISCUSSION

¶8.    Pagador argues that the circuit court erred in granting Trustmark’s motion for

summary judgment. Specifically, Pagador asserts there is a genuine issue of material fact

regarding (1) whether Pagador was in default at the time Trustmark foreclosed on his home

and (2) whether Trustmark breached the contract by failing to follow the conditions

precedent specified in the deed of trust and the VA regulations and guidelines prior to

foreclosing on Pagador’s home.

       I.     Default

¶9.    Pagador claims he was not in default at the time Trustmark foreclosed because he was

in a special VA forbearance. However, Trustmark met its burden of showing an absence of

a genuine issue of material fact with respect to this claim. The record shows and the parties

agree that Pagador was granted two forbearance periods: one from July 1, 2010, through

December 31, 2010, and a second from May 2011 through August 31, 2011. Pagador now

claims in his brief on appeal that the forbearance “was extended up until on or about March

7, 2012,” and again that “his special VA forbearance period was repeatedly extended all the



                                              4
way up to the March 22, 2012 foreclosure sale.” But, apart from his bare assertions, Pagador

provided no evidentiary support for this claim.

¶10.   The Mississippi Supreme Court has held that “other than undenied allegations in the

party’s pleadings and [Mississippi Rule of Civil Procedure] 36 admissions, all material

submitted in opposition to summary judgment must be sworn.” Handy v. Madison Cty.

Nursing Home, 192 So. 3d 1005, 1010 (¶16) (Miss. 2016). As such, the email in which

Pagador’s mother, a nonparty, asserts that Hodges, also a nonparty, purportedly told Pagador

that a third forbearance had been approved is improper summary-judgment evidence.

Pagador failed to produce any documentation, affidavits, or otherwise proper summary-

judgment evidence to support his claim that he was still in forbearance. In fact, neither

Pagador’s complaint nor his affidavit claims that a third or extended forbearance was ever

granted.

¶11.   Under the terms of the promissory note, Pagador was in default when he failed “to pay

the full amount of each monthly payment on the date it [was] due.” The facts clearly show

that Pagador’s last mortgage payment was made in June 2010 and that his final forbearance

period ended August 31, 2011. As such, it is clear there is no genuine issue regarding

whether Pagador was in default at the time of the foreclosure on March 22, 2012. This issue

is without merit.

       II.    Breach of Contract

¶12.   Pagador also asserts that Trustmark breached the parties’ contract by failing to comply

with VA regulations and guidelines by extending the time period for foreclosure and by



                                              5
failing to provide him with proper notice of acceleration prior to foreclosure.

              A.     VA Regulations and Guidelines

¶13.   Pagador argues that Trustmark was required to comply with VA regulations and

guidelines, to specifically extend the time period for foreclosure. However, in his appellate

brief, Pagador admits that nothing in Mississippi law has addressed VA regulations and

guidelines being incorporated into a mortgage. Furthermore, there is nothing in the deed of

trust, VA rider, VA regulations, VA servicing guidelines, or otherwise that would require

Trustmark to grant an additional forbearance, extend the time prior to the foreclosure, or

refrain from foreclosure. In response to Trustmark’s motion for summary judgment, Pagador

does not cite to any specific VA regulations or guidelines that would require an additional

forbearance period or prohibit the lender from foreclosure. Rather, Pagador references

generally the VA guidelines’ stated purpose of limiting foreclosures on VA guaranteed loans

through various loss-mitigation options, including repayment plans, loan modifications,

special forbearance, compromise sale, or deed in lieu of foreclosure.

¶14.   Indeed, Trustmark participated in such loss-mitigation options by extending Pagador

two forbearance periods. There was nothing in the deed of trust or other incorporated

documents that imposed a duty on Trustmark to grant an additional forbearance period or

otherwise refrain from foreclosure. Accordingly, there is no genuine issue of material fact

with respect to whether Trustmark breached the contract by failing to comply with VA

guidelines and regulations.

              B.     Notice of Acceleration



                                              6
¶15.   Pagador also argues that Trustmark was required under the deed of trust to “give

notice to Borrower prior to acceleration following Borrower’s breach of any covenant or

agreement in this Security Instrument . . . .” However, the mortgage addendum for the VA

guaranteed loan specifically stated, “The Borrower agrees that the Lender or its assignee may

at any time without prior notice accelerate all payments under the Deed to Secure Debt and

Note and exercise any other remedy allowed by law, including foreclosure, for breach of the

Deed to Secure Debt or Note . . . .” (Emphasis added). Furthermore, the addendum provided

that “[i]n the event of any conflict between the provisions of this Rider and the provisions

of the Deed to Secure Debt or Note, the provisions of this Rider shall control.” As such, the

addendum controls, and Trustmark was not required to give notice prior to acceleration of

the debt. This issue is without merit.

       III.   Pagador’s Remaining Claims

¶16.   Pagador also asserts various other arguments, including misrepresentation, fraud,

promissory estoppel, negligence, wrongful foreclosure, negligent infliction of emotional

distress, unjust enrichment, breach of the implied covenant of good faith and fair dealing, and

breach of fiduciary duty. None of the facts in the record, when viewed in light most

favorable to Pagador, support these claims. Under the terms of the deed of trust, promissory

note, and VA rider, Trustmark was well within its rights to foreclose. After granting Pagador

two separate forbearance periods, Trustmark notified him of the foreclosure proceedings.

Pagador failed to object to the foreclosure, and the foreclosure took place as set forth. When

a property owner fails to object to the foreclosure before the sale, he has waived any ground



                                              7
to challenge the foreclosure. Robinson v. Trustmark Nat’l Bank, 179 So. 3d 1146, 1150 (¶19)

(Miss. Ct. App. 2015). Thus, in addition to the fact that these claims lack merit, Pagador has

waived the right to raise them on appeal.

¶17.   The concurring opinion interprets Robinson as holding that if a debtor does not object

before, during, or immediately after the foreclosure sale, he has “waived only his right to

have the sale set aside . . . .” In doing so, the concurring opinion states that “Pagador’s

failure to object . . . waived only his right to have the sale set aside, not a claim for damages.”

However, Robinson states that a failure to raise objections before the sale “waived any

ground to challenge the foreclosure.” Robinson, 179 So. 3d at 1150 (¶19). The concurring

opinion mistakes “challenge the foreclosure” as synonymous with “have the sale set aside.”

Thus, the concurring opinion confuses the right available to the injured mortgagor—to

challenge the sale through a wrongful-foreclosure action—with the remedies available to the

injured mortgagor—“(1) having the sale set aside and (2) recovering from the mortgagee the

damages suffered as a result of the wrongful foreclosure.” Nat’l Mortg.Co. v. Williams, 357

So. 2d 934, 936 (Miss. 1978).          In the instant case, Pagador seeks the remedy of

damages—however, his cause of action remains one for wrongful foreclosure. Our body of

caselaw on wrongful foreclosures is not rendered inapplicable in the instant case simply

because, here, the mortgagor seeks the remedy of damages. Accordingly, Pagador’s failure

to object to the sale waived any grounds to challenge the foreclosure.

¶18.   AFFIRMED.

       GRIFFIS, P.J., CARLTON AND WESTBROOKS, JJ., CONCUR. IRVING,
P.J., AND ISHEE, J., CONCUR IN PART AND IN THE RESULT WITHOUT

                                                8
SEPARATE WRITTEN OPINION. BARNES, J., SPECIALLY CONCURS WITH
SEPARATE WRITTEN OPINION, JOINED BY ISHEE, J. WILSON, J., CONCURS
IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. FAIR AND
GREENLEE, JJ., NOT PARTICIPATING.

       BARNES, J., SPECIALLY CONCURRING:

¶19.   While I concur with the majority’s affirming the circuit court’s grant of summary

judgment to Trustmark, I disagree with the determination that Pagador waived his claims by

failing to object to the foreclosure sale.

¶20.   To support its finding of waiver, the circuit court cited Jackson v. Bank of America,

No. 3:13CV581-LG-JCG, 2014 WL 5511017, at *5 (S.D. Miss. Oct. 31, 2014), which held

that when a mortgagor has actual notice of a foreclosure sale and fails to object, he is

“estopped from subsequently challenging the title of the purchaser.” However, what the

circuit court failed to consider is the district court’s holding that the plaintiff’s claims for

negligence, unjust enrichment, and fraudulent conveyance should be dismissed “because each

of these claims seeks to have the sale voided or set aside for irregularities in the foreclosure

sale.” Id. at *6 (emphasis added). Similarly, the majority cites Robinson v. Trustmark

National Bank, 179 So. 3d 1146, 1150 (¶16) (Miss. Ct. App. 2015), where this Court held

that because the appellant failed to raise her issues before the sale, she waived “any ground

to challenge the foreclosure.” In that case, we noted our “consistent” holding that if a debtor

does not object before, during, or immediately after the foreclosure sale, “he waives his

grounds for challenging the sale.” Id. (emphasis added); see also Nichols v. Bush, 913 So.

2d 387, 391 (¶22) (Miss. Ct. App. 2005) (finding a plaintiff’s “silence” during the

foreclosure sale “waived any irregularity in the sale and . . . estopped [him] from seeking to


                                               9
have the foreclosure set aside”).1 Were Pagador seeking to set aside the foreclosure sale, I

would agree with the circuit court and the majority that he had waived his claims.2

¶21.      But as Pagador asserts, he does not “seek to have the sale voided or set aside for

irregularities in the foreclosure sale”; he seeks monetary damages. Therefore, Jackson and

Robinson are inapplicable to this case, as neither stands for the proposition that there is

absolutely no relief available to a plaintiff after foreclosure if he fails to object to the

proceedings. These cases simply hold that if a plaintiff makes no objection to the

foreclosure, he may not challenge or set aside the sale.

¶22.      I have found no precedent that a plaintiff waives any and all rights to bring an action

for damages for wrongful foreclosure if he fails to object to the sale. In National Mortgage

Company v. Williams, 357 So. 2d 934, 936 (Miss. 1978), the Mississippi Supreme Court

stated:

          In general, the authorities support the rule that an action at law by the
          mortgagor against the mortgagee will lie to recover damages for a wrongful


          1
              This holding is grounded on the doctrine of equitable estoppel:

          [O]ne of the established rules of the doctrine is that, if a person knowingly
          suffers another to expend money on land under an erroneous opinion of title,
          although he does it passively by looking on without making known his claim,
          he shall not afterwards be permitted to enforce his legal right against such
          other.

Nichols, 913 So. 2d at 391 (¶20) (quoting Kelso v. Robinson, 172 Miss. 828, 840-41, 161
So. 135, 137 (1935)).
          2
        The Robinson court found the former property owner “had a duty to speak, and her
silence as to the legitimacy of the foreclosure and the documents supporting the sale
effectively estopped her from challenging the title of the subsequent purchaser.” Robinson,
179 So. 3d at 1149 (¶15) (emphasis added).

                                                 10
       foreclosure that is, a foreclosure without right, which would ordinarily be
       ineffective and invalid irrespective of the manner in which it is executed.
       Generally, in such circumstances, the mortgagor has the right to elect between
       (1) having the sale set aside and (2) recovering from the mortgagee the
       damages suffered as a result of the wrongful foreclosure.

       Actions at law for damages for premature foreclosures have been sustained,
       particularly where a required demand of payment was not made to accelerate
       maturity, although there is authority to the effect that a right to maintain such
       an action may be lost by electing to proceed in equity for the return of the
       equity of redemption and obtaining a decree ordering restoration of the
       property.

(Quoting 55 Am. Jur. Mortgages § 535, 516-17 (1971)). Thus, our supreme court has

distinguished between the two types of relief requested in an action for wrongful foreclosure.

See also C&K Invs. v. Fiesta Grp. Inc., 248 S.W.3d 234, 254 (Tex. App. 2007) (The failure

to foreclose on property properly “gives rise to a cause of action for either the return of the

property or damages.”) (emphasis added).           Pagador’s failure to object prior to, or

immediately after, the sale waived only his right to have the sale set aside, not a claim for

damages.

       ISHEE, J., JOINS THIS OPINION.




                                              11
