Stuckey v. Provident Bank

• Citation: 912 So.2d 859
• Decision Date: 17 March 2005
• Docket Number: No. 2003-CA-02003-SCT.,2003-CA-02003-SCT.
• Parties: Isaac STUCKEY and Karen Stuckey v. THE PROVIDENT BANK.
• Court: Mississippi Supreme Court

912 So.2d 859

Isaac STUCKEY and Karen Stuckey v. THE PROVIDENT BANK.

No. 2003-CA-02003-SCT.

Supreme Court of Mississippi.

March 17, 2005.

COPYRIGHT MATERIAL OMITTED

Hinds County Chancery Court, William Hale Singletary, J.

R. Charles Robb, attorney for appellants.

Richard Scott Pietrowski, attorney for appellee.

EN BANC.

CARLSON, Justice, for the Court.

¶ 1. Isaac and Karen Stuckey ("the Stuckeys"), husband and wife, appeal to this Court from a final judgment of dismissal entered by the Chancery Court of the First Judicial District of Hinds County. The Stuckeys assert that the chancery court failed to consider both the substantive and evidentiary value of the allegations stated in their sworn complaint and thus abused its discretion in granting summary judgment. Finding the Stuckeys' argument unconvincing and the chancellor's final judgment of dismissal well-founded, we affirm.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. On November 29, 1999, Isaac and Karen Stuckey refinanced their home through Southern Mortgage Company ("SMC"), a Louisiana corporation, and borrowed a total of $27,000. In accordance with the provisions of the fully executed loan documents, SMC was named as the Stuckeys' official lender and beneficiary, and the account was to be funded through a warehouse line of credit which SMC maintained with the Evangeline Bank, another Louisiana financial institution. The Stuckeys, who were securing the loan in order to pay off mounting debt obligations, received their loan proceeds from SMC on December 3, 1999.

¶ 3. On December 10, 1999, the Provident Bank ("Provident"), an Ohio banking corporation, purchased the rights to the Stuckey loan from SMC by way of payment of the appropriate funds wired directly to the Evangeline Bank for credit to SMC's account. As of January of 2001, the Stuckeys stopped making their mortgage payments and were in default on their loan. Thus, Provident, as the holder of the deed of trust, instituted foreclosure proceedings against the Stuckeys.

¶ 4. On January 7, 2002, the Stuckeys commenced their subject lawsuit in the Chancery Court of the First Judicial District of Hinds County by filing a sworn pleading entitled "Motion For Injunctive Relief And Complaint," (hereinafter referred to simply as "complaint").¹ The named defendants were "Royce McNeal, Brent McNeal, Brian Michael Pellissier, James R. Hall, and Craig A. Netterville,² The Provident Bank, Ray Michael Gibson, Jr., Universal Title & Escrow, L.L.C., Jo Alice Rankins, American Pioneer Title Insurance Company, Lem Adams, III, XYZ corporation, and John Does 7-15." The thirty-three page complaint, which consisted of 147 paragraphs, exclusive of the three-page prayer for relief, sought, inter alia, to enjoin Provident from foreclosing on the Stuckey loan and alleged that Provident along with its agents had conspired with SMC to engage in predatory lending practices to the detriment of the Stuckeys. To this end, the Stuckeys asserted that Provident and SMC had collaborated in securing the Stuckeys' loan and that Provident had pre-approved the loan for closing and promised SMC a yield premium spread in exchange for allowing it to purchase the loan at a discount. In addition to seeking injunctive relief, the Stuckeys requested the chancery court to determine the validity of liens, cancel and remove clouds from title, set aside conveyances of deeds of trust and direct an accounting. The complaint was accompanied by the Stuckeys' sworn affidavit. Attached to the complaint were twenty-seven pages of documents relating to SMC³, including corporate records from the Secretary of State of the State of Mississippi.

¶ 5. A month later, on motion of two of the defendants, Ray Michael Gibson, Jr., and Universal Title & Escrow, L.L. C., the case was removed to the United States District Court for the Southern District of Mississippi; however, the case was subsequently remanded back to the Chancery Court of Hinds County. Upon remand, the chancery court, on January 28, 2003, entered a very detailed scheduling order in several pending cases, including the case sub judice. Since we deem this scheduling order to be of significant import in this case, we restate here verbatim the provisions of this scheduling order:

Pursuant to Rule 16 of the Mississippi Rules of Civil Procedure, it is:

ORDERED that motions for joinder of parties or amendments to the complaint shall be served on or before February 28, 2003.

ORDERED that a hearing will be conducted on all pleadings for joinder of parties or amendments to the complaints on March 7, 2003 at 10:00 a.m ORDERED that all amended pleadings shall be filed and service of process shall be completed as to any and all parties not previously named as Defendants on or before April 1, 2003.

ORDERED that (I) responsive pleadings pursuant to Rule 12 of the Mississippi Rules of Civil Procedure to all amended pleadings and (ii) all other motions not presently pending which any party desires to be heard at the July 28, 2003 setting, shall be served on or before April 30, 2003.

ORDERED that Plaintiffs shall file a written response to all motions filed prior to or on April 30, 2003 on or before June 15, 2003.

ORDERED that a hearing shall be conducted on all motions filed prior to or on April 30, 2003 on July 28, 2003 at 9:30 a.m. Should counsel desire for any motions presently pending to be heard on said date, then counsel shall file a notice of hearing in connection with such motions prior to April 30, 2003.

ORDERED that all experts of Plaintiffs shall be designated on or before August 31, 2003.

ORDERED that all experts of Defendants shall be designated on or before September 30, 2003.

ORDERED that all discovery shall be completed on or before December 2, 2003.

ORDERED that all dispositive motions, with exception of evidentiary in limine motions, shall be served on or before January 29, 2004.

ORDERED that the opposing party shall file a written response to all dispositive motions and other motions filed prior to or on January 29, 2004 on or before February 28, 2004.

ORDERED that a hearing shall be conducted on all dispositive motions and any other motions filed prior to or on January 29, 2004 on March 29, 2004 at 9:30 a.m.

ORDERED that nothing contained herein shall constitute a waiver of any defense of any Defendant in any of the above styled and numbered civil actions.

¶ 6. In compliance with the chancery court's scheduling order, the Stuckeys filed an amended complaint on March 7, 2003. Unlike the original complaint, this amended complaint was signed only by the Stuckeys' attorney, and was thus an unsworn pleading. On April 30, 2003, Provident filed its answer accompanied by a motion for summary judgment. Attached to Provident's motion, were an affidavit, exhibits, deposition excerpts, and copies of checks disbursed at the Stuckeys' loan closing. Based on the clear and unequivocal provisions of the scheduling order, the Stuckeys were directed by the chancellor to file a written response to Provident's timely filed motion for summary judgment by June 15, 2003. Interestingly, this June 15th court-imposed deadline arrived and passed uneventfully with the Stuckeys failing to file a written response to Provident's motion for summary judgment, with the attached exhibits. On July 17, 2003, finding that no genuine issues of material fact existed for trial, the chancellor entered an order granting Provident's motion for summary judgment. On August 14, 2003, the chancery court entered its Final Judgment as to The Provident Bank wherein, pursuant to the previously entered order granting summary judgment, the chancery court entered final judgment in favor of Provident on all claims asserted by the Stuckeys in their amended complaint, dismissed the amended complaint with prejudice, and certified that dismissal as final under Miss. R. Civ. P. 54(b).

¶ 7. On appeal, the Stuckeys assert two issues for us to consider: (1) Whether the sworn complaint "filed and of record" constituted evidence on material issues so as to create triable issues which thus defeated the motion for summary judgment; and (2) Whether the sworn complaint established evidence to place the investigation of Provident's notice of irregularities of the loan closing "in equilibrio,"⁴ thus creating a triable issue concerning Provident being a holder in due course. Not surprisingly, the Stuckeys fervently assert that we should resolve these issues in their favor and thus reverse the chancellor's grant of summary judgment; but quite interestingly, the Stuckeys likewise assert in their brief that this case ought to be reversed and remanded "to allow the Stuckeys' (sic) discovery and a trial on the issues raised."

DISCUSSION

¶ 8. The standard of review of a trial court's grant of a summary judgment motion is de novo. Miller v. Meeks, 762 So.2d 302, 304 (Miss.2000) (citing Short v. Columbus Rubber & Gasket Co., 535 So.2d 61, 63 (Miss.1988)). Accordingly, this Court must employ a factual review tantamount to that of the trial court when considering evidentiary matters in the record. Aetna Cas. & Sur. Co. v. Berry, 669 So.2d 56, 70 (Miss.1996). By design, the threshold for summary judgment is high and requires that "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 judgment as a matter of law." Miss. R. Civ. P. 56(c). "If any triable facts exist, the lower court's grant of a summary judgment will be reversed; otherwise the decision will be affirmed." Miller, 762 So.2d at 304 (citing Brown v. Credit Ctr., Inc., 444 So.2d 358, 362 (Miss.1983)). "When a motion for summary judgment is made and supported as provided in Rule 56 an adverse party may not rest upon the mere allegations or denials of his pleadings, his response must set forth specific facts showing that there...