Eastover Bank for Sav. v. Hall

• Decision Date: 18 September 1991
• Docket Number: No. 90-CA-0333,90-CA-0333
• Citation: 587 So.2d 266
• Parties: EASTOVER BANK FOR SAVINGS v. Don A. HALL.
• Court: Mississippi Supreme Court

Page 266

587 So.2d 266

EASTOVER BANK FOR SAVINGS v. Don A. HALL.

No. 90-CA-0333.

Supreme Court of Mississippi.

Sept. 18, 1991.

Willard L. McIlwain, Jr., Greenville, for appellant.

Kinney M. Swain, Greenville, for appellee.

En Banc.

PITTMAN, Justice, for the Court:

Eastover Bank for Savings ("Eastover") appeals from a judgment of $12,713.62 rendered against it by the Washington County Chancery Court due to Eastover's wrongful foreclosure of certain real property owned by Don Hall. Eastover assigns two errors in the lower court. Don Hall alleges two errors on cross appeal. Finding both direct and cross appeal to be without merit, we affirm.

I.

On September 17, 1979, Don Hall purchased certain real property located in Washington County, Mississippi. The deed of trust on the property was held by Eastover. By July 1988, Hall had fallen behind on his mortgage payments to Eastover, and as a result Eastover took steps to foreclose on the property. Charles Mayfield, Jr., served as substitute trustee. Mayfield executed a Substituted Trustee's Notice of Sale on June 29, 1988. The notice set July 21, 1988, as the date for the foreclosure sale, to be held at the Washington County Courthouse. The notice also provided for dates that it should be published.

On July 21, 1988, Charles Mayfield executed a substituted trustee's deed, signifying that the foreclosure sale had been held, that Eastover Bank had bid $17,286.38 for the property, and that the property had been sold to Eastover for that amount. In mid-August Mayfield was attempting to reconcile his business accounts when he discovered a deposit of $1905.30 in his business trust account. On further investigation, he discovered that it was a deposit which had been made by Don Hall on July 21, 1988, at the Trustmark Bank in Greenville. $1905.30 was the amount that Hall owed on the mortgage in question. The deposit had been made in the afternoon and was credited to Mayfield's trust account on July 22. Mayfield returned the amount to Hall via check and certified mail on August 19, 1988. Hall refused to accept the letter. Eventually Eastover returned $1905.30 to Hall.

Don Hall filed suit against Eastover and Charles Mayfield on January 27, 1989. Hall alleged that he and Mayfield had agreed that Hall could pay his mortgage by depositing the amount owed in Mayfield's trust account, and Hall had done that on July 21, 1988, before the foreclosure sale had taken place. Hall further alleged that in spite of this, Mayfield or his agent had wrongfully continued with the foreclosure sale even though the indebtedness had been paid. Hall later amended his complaint to include the allegation that the foreclosure sale had actually never taken place. Hall asked for actual and punitive damages.

The trial in this cause was held on February 26 and 27, 1990. Don Hall, a bail bondsman who had been in the real estate business, testified that he had spoken with Charles Mayfield, Jr., on July 19, with Mayfield asking him whether or not he was going to save the property. Hall stated that he was planning to, and Mayfield gave Hall his trust account number for Trustmark Bank in Greenville. Hall stated that Mayfield instructed him, when he made the deposit, to give the account number to the teller and to have her call Mayfield's Jackson bank, and verify with them that the money had been deposited. Mayfield also informed Hall of the amount which was needed to bring the mortgage current. Hall stated that he had been in a similar situation with Mayfield at least four other times, and he had twice reinstated the mortgage by depositing the correct amount in Mayfield's trust account in the Trustmark Bank. The other two times Hall paid his arrearage directly to Mayfield or Mayfield's son on the day of foreclosure.

Hall, accompanied by his nephew, Freddie Hall, and $1905.30 in cash, arrived at the Washington County Courthouse on July 21, at around 10:45 a.m. Hall had the money with him. Hall first checked with Leola Jordan in the chancery clerk's office to find out if Mayfield had been there to foreclose the property. Finding that the sale had not yet taken place, Hall and his nephew remained at the courthouse until around 12:55 p.m. At that time, Don left and headed to the Trustmark Bank. Freddie remained at the courthouse. At Trustmark, Don was waited on by Cosetta Gray, a teller. Don deposited $1905.30, the necessary amount, into Mayfield's trust account. Hall claimed that the time was 1:00 p.m. or just after. Hall instructed Gray to call the Jackson bank and inform them that the deposit had been made. Hall then returned to the courthouse. He met with Freddie, and they waited at the courthouse for approximately thirty minutes. Both left around 2:00 p.m. Don Hall returned to the courthouse around 4:00 p.m. He checked with Leola Jordan in the clerk's office once again. According to Hall, there had been no notation of any foreclosure sale.

In August, when Hall went to collect the rent from the tenants living at the subject property, he was told that someone had informed them that they no longer had to pay rent to Hall. Hall then called Mayfield. Mayfield told Hall that he had discovered the deposit, and referred Hall to someone employed by Eastover to see about the possibility of setting the foreclosure aside. Eastover refused to do so.

Charles Mayfield, a practicing attorney for thirty years, had been taking care of foreclosure files for Eastover for around two years. Mayfield stated that he and his son had done all the preliminary work on the foreclosure of Don Hall's property and only needed someone to conduct the foreclosure sale, so they hired Mike Boyd, a Greenville attorney. This was the first time Mayfield had used Boyd to conduct a sale. Mayfield stated that he confirmed the sale results with Boyd sometime on the 21st. Mayfield agreed that Don Hall had deposited money into his account on one previous occasion in order to save property from foreclosure. Mayfield also said that on a previous occasion Hall had come to Jackson and personally paid the required amount to Mayfield. Another time Hall had paid the money at the courthouse in Greenville. Mayfield stated that the instructions he "would have given" Hall would have been to have wired the funds to the Trustmark Bank in Jackson, along with a request that the bank officer communicate a confirmation to Mayfield. Then Hall should have confirmed with Mayfield that the funds had been received. Mayfield stated that Boyd confirmed to him in writing that the sale had occurred on July 21, and he remembered the time of the sale being reported as around 1:05 p.m. He had since changed his mind about the time of the sale.

Mike Boyd testified that he recalled the events of July 21, 1988, "very well." A close friend of Boyd's died in Jackson on that day. Boyd had talked with Charles Mayfield and Mayfield's son and law partner, Mark about the foreclosure, but he could not remember when. The only details Boyd could give about his actions concerning the sale were that he "read the substituted Trustee's Notice of Sale." Boyd was a member of the Greenville Appeal Board. The Board had a meeting on the afternoon of July 21, but Boyd could not remember attending the meeting. He did not remember how he had received the bidding instructions from Mayfield. Boyd testified that he called Mayfield late on the afternoon of July 21. According to Boyd's appointment calender he was in bankruptcy court until noon or after, then conducted the Hall sale, followed by a 2:00 appointment with one Thomas Boyd and another meeting after that. Boyd admitted that he had recently contacted various people to find out who, if anyone, had been at the foreclosure sale with him. He stated that he had discovered that Mischa Harper, who worked in the tax assessor's office, had been. Boyd denied that he had performed the sale between 1:00 and 2:00 p.m.

Freddie Hall, Don Hall's nephew, corroborated his uncle's timetable and version of the events of July 21. Freddie testified that no one conducted a foreclosure sale during the time that he was at the courthouse. Freddie was acquainted with Mike Boyd and he never saw Boyd that afternoon. Freddie, an employee of Howard Bonding Company, got a call from the company a little after 1:30 and left the courthouse between 1:45 and 2:00 to go to the Greenville Police Department. Freddie did not return to the courthouse that afternoon.

Tracy Howard worked at Howard Bonding Company on July 21, 1988. Don and Freddie Hall worked as bail bond agents for the Howard Bonding at that time. Tracy testified that on that date she received a bond call and contacted Freddie Hall on his beeper. She then received a call from Freddie, who was at the courthouse, between 10:30 and 12:30. She got another call from Freddie around 1:30 p.m. He had already been to the police department to check on the bond at this time.

Cozetta Gray, the teller at Trustmark Bank in Greenville, testified that Don Hall made a cash deposit with her on July 21, 1988. Hall also asked her to make a call to a Jackson bank to confirm that the deposit had been made. Gray supplied the name of the account, the account number, Trustmark's routing number, and the amount deposited. Gray stated that the deposit was made after 1:00 p.m., as that was the cut-off time for having a deposit credited to an account on the same day. She was able to testify that Hall had made the deposit at around 2:45 p.m., as she had checked her time card for that date.

Over Don Hall's objection, Eastover called Mischa Harper, who was working in the tax assessor's office on July 21, 1988. Harper testified that she had received a call from Mike Boyd, a close friend, and as a result met him in front of the courthouse, sometime after two in the afternoon on the 21st. She stated that Boyd read from a docket form. As to the foreclosure sale, she only followed Boyd's instructions and did not fully understand what she was...