Henry Harvey v. Federal National Mortgage Association

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2015-CP-00134-COA
HENRY HARVEY A/K/A HENRY HARVEY, JR. APPELLANTS
AND LILLIE MAY MOORE HARVEY A/K/A
LILLIE M. HARVEY
v.
FEDERAL NATIONAL MORTGAGE APPELLEE
ASSOCIATION
DATE OF JUDGMENT: 01/12/2015
TRIAL JUDGE: HON. JOSEPH H. LOPER JR.
COURT FROM WHICH APPEALED: GRENADA COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: HENRY HARVEY (PRO SE)
LILLIE MAY MOORE HARVEY (PRO SE)
ATTORNEYS FOR APPELLEE: MICHAEL ALAN JEDYNAK
SEAN ALBERT SOUTHERN
NATURE OF THE CASE: CIVIL - REAL PROPERTY
TRIAL COURT DISPOSITION: ENTERED JUDGMENT OF EVICTION
DISPOSITION: AFFIRMED - 08/23/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE ISHEE, P.J., CARLTON AND JAMES, JJ.
CARLTON, J., FOR THE COURT:
¶1. Henry and Lillie May Moore Harvey appeal the Grenada County Circuit Court’s order
of eviction. Finding no error, we affirm the judgment of the circuit court.
FACTS
¶2. In May 1988, Henry and Lillie purchased 17.8 acres of real property (the Property)
in Grenada County, Mississippi. The legal description of the Property on the deed provides:
17.8 acres of land lying in the West 1/2 of the Northwest 1/4 of Section 30,
Township 22 North, Range 4 East, Choctaw Meridian, Grenada County,
Mississippi, and more particularly described as follows:
Beginning at an iron bar 880.00 feet South of the Northwest
Corner of the West 1/2 of the Northwest 1/4 of said Section 30,
Thence East for 1324.5 feet, thence South for 586.7 feet; thence
West for 1325.0 feet, thence North for 586.7 feet to the Point of
Beginning.
¶3. On December 14, 2007, the Harveys executed a deed of trust to William Glover Jr.,
trustee for Wells Fargo Bank, conveying the Property as security for a loan. Wells Fargo
Bank subsequently recorded the deed in the land records. On March 5, 2012, Wells Fargo
substituted and appointed Sean Southern, counsel for Federal National Mortgage Association
(FNMA), as trustee in the deed of trust. This assignment was also recorded in the land
records.
¶4. After the Harveys defaulted on their loan payments, FNMA held a foreclosure sale
on January 29, 2013. On February 4, 2013, following foreclosure, FNMA conveyed the
Property to Wells Fargo Bank, the highest bidder at the foreclosure sale. Wells Fargo Bank
subsequently conveyed the Property to FNMA in a special warranty deed.
¶5. On January 22, 2014, FNMA sent the Harveys a Notice of Foreclosure and Tenants
Rights, explaining that FNMA had purchased the Property at a foreclosure sale held on
January 29, 2013. The notice served to “provide any occupant [of the Property] the
opportunity, prior to the commencement of the eviction action for possession, to provide
acceptable evidence to show that the occupant is entitled to the protection of the [Protecting
Tenants at Foreclosure Act of 2009 (PTFA)].” The notice further provided that “if you are
a former owner or a person who is not a bona fide tenant under the PTFA, FNMA terminates
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any and all right to occupancy and instructs you to vacate the premises no later than ten days
following delivery of this letter.”
¶6. FNMA then filed a complaint for unlawful entry and wrongful detainer, or eviction,
in Grenada County Justice Court, alleging that the Harveys were “wrongfully occupying the
Property following a foreclosure sale held on the 29th day of January[] 2013” and that
“proper and lawful notice has been given to the [Harveys] according to statute prior to
initiating this eviction proceeding.”
¶7. On February 27, 2014, the justice court entered a Judgment of Eviction. On March
24, 2014, the Harveys appealed this judgment to the circuit court. The circuit court held a
hearing on January 12, 2015. At the hearing, the Harveys admitted that Henry had signed the
loan application and deed of trust, but they argued that Lillie’s signatures on the documents
were forged. Henry testified that Lillie’s signature on the loan application and deed of trust
“looks like something they just stuck on there.” Henry also testified that he only deeded
Wells Fargo Bank one and a half acres of his land as security for a $200,000 loan, rather than
the 17.8 acres listed in the deed.
¶8. The transcript from the January 12, 2015 hearing reflects that the circuit judge
informed the Harveys:
This is not going to be the appropriate court for me to decide whether the
foreclosure was proper or not because the foreclosure has already taken place.
And so the only issue then is whether you’re holding over on that [P]roperty
or not. Because right now they have got a valid foreclosure.
....
I’m not the one [who] would decide whether [FNMA] has a valid mortgage or
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anything else. If you had a problem with that, you should have gone to
chancery court to try and stop the foreclosure proceedings.
....
The only issue before this court is whether you have got the right to be on that
[P]roperty or not. Based on this substitute trustee’s deed, you do not have the
right to be on that [P]roperty. . . . The [FNMA] now owns that [P]roperty
based on this deed.
¶9. After the hearing, the circuit judge entered an order on January 12, 2015, for the
removal of the Harveys and all other occupants from the Property within ten days. The
Harveys filed an appeal of this order on January 20, 2015.1
STANDARD OF REVIEW
¶10. “A circuit court judge sitting without a jury is accorded the same deference with
regard to his findings as a chancellor,” and we will affirm his findings “on appeal where they
are supported by substantial, credible, and reasonable evidence.” McWhorter v. Cal-Maine
Farms Inc., 913 So. 2d 193, 196 (¶5) (Miss. 2005).
DISCUSSION
¶11. The Harveys’ appellate brief consists only of the following paragraph:
In the case of Henry Harvey and Lillie Harvey vs. [FNMA] and Wells Fargo
we intend to prove that Wells Fargo did not have the right to sell 16.3 acres of
land. They only have the house and 1 acre and a half of land which was in the
original deed not the whole 18.8 acres. Wells Fargo attempted to steal 16.8
acres of land and forge Lillie Mae Harvey[’s] signature on the deed. With the
help of a handwritting [sic] specialist we can prove that her name wasn’t on
the deed. Wells Fargo sold Stolen Property to the [FNMA].
¶12. The Harveys’ brief fails to allege any error on the part of the trial court, fails to cite
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The Harveys filed an amended notice of appeal on January 26, 2015.
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any case or statutory authority, and also fails to support their assertion with argument or
analysis of the law as applied to the facts of this case. See M.R.A.P. 28(a). At the time the
Harveys filed their appeal, Rule 28(a) required an appellant’s brief to contain:
(3) Statement of Issues. A statement shall identify the issues presented for
review. No separate assignment of errors shall be filed. Each issue presented
for review shall be separately numbered in the statement. No issue not
distinctly identified shall be argued by counsel, except upon request of the
court, but the court may, at its option, notice a plain error not identified or
distinctly specified.
(4) Statement of the Case. This statement shall first indicate briefly the nature
of the case, the course of the proceedings, and its disposition in the court
below. There shall follow the statement of facts relevant to the issues
presented for review, with appropriate references to the record.
(5) Summary of the Argument. The summary, suitably paragraphed, should
be a succinct, but accurate and clear, condensation of the argument actually
made in the body of the brief. It should not be a mere repetition of the
headings under which the argument is arranged . . . .
(6) Argument. The argument shall contain the contentions of appellant with
respect to the issues presented, and the reasons for those contentions, with
citations to the authorities, statutes, and parts of the record relied on.
¶13. We acknowledge that the Mississippi Supreme Court has held that “[f]ailure to cite
relevant authority obviates the appellate court’s obligation to review such issues.” Byrom
v. State, 863 So. 2d 836, 853 (¶35) (Miss. 2003) (quoting Simmons v. State, 805 So. 2d 452,
487 (¶90) (Miss. 2001)). The appellant possesses the “duty to provide authority and support
for the issues he presents.” Edwards v. State, 856 So. 2d 587, 599 (¶45) (Miss. Ct. App.
2003). Furthermore, we recognize that, on appeal, “pro se parties should be held to the same
rules of procedure and substantive law as represented parties.” Jones v. Miss. Dep't of Emp’t
Sec., 129 So. 3d 224, 226 (¶8) (Miss. Ct. App. 2013); Harvey v. Stone Cty. Sch. Dist., 862
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So. 2d 545, 549 (¶9) (Miss. Ct. App. 2003).
¶14. Accordingly, this assignment of error is not properly before the Court and is
procedurally barred from our consideration. See New Bellum Homes Inc. v. Swain, 806 So.
2d 301, 306 (¶14) (Miss. Ct. App. 2001); see also Cook v. Mardi Gras Casino Corp., 697 So.
2d 378, 383 (Miss. 1997).
¶15. Procedural bar nothwithstanding, we find the Harveys’ claim to be without merit.
This Court “must decide each case by the facts shown in the record, not assertions in the
brief[.]” Minor v. City of Indianola, 909 So. 2d 146, 148 (¶4) (Miss. Ct. App. 2005). We
acknowledge that jurisprudence establishes that the trial court is entitled to a presumption
that its judgment is correct. Id. at (¶5) (citing Branch v. State, 347 So. 2d 957, 958 (Miss.
1977)). Moreover, the law establishes that the Harveys, as appellants, bear the burden of
demonstrating a reversible error to this Court on appeal. Id. at (¶¶4-5). Upon review, we
find that the Harveys have presented no argument or sufficient evidentiary support in the
record to meet this burden or to overcome the presumption that the trial court’s judgment
herein is correct.
¶16. Additionally, we remind the Harveys that FNMA’s unlawful-entry-and-detainer action
herein constituted an eviction proceeding, not an equity proceeding regarding the validity of
the foreclosure or ownership of the property. In Gandy v. Citicorp, 985 So. 2d 371, 373 (¶7)
(Miss. Ct. App. 2008), this Court explained that “[a]n action for unlawful entry and detainer
. . . exists to provide a party the ability to obtain possession of a piece of property when
another party withholds possession after his claim of right has expired . . . . Such an action
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does not prevent a separate action being filed to determine ownership of the property.” See
also Miss. Code Ann. § 11-25-1 (Rev. 2004) (unlawful entry and detainer); Miss. Code Ann.
§ 11-25-31 (Rev. 2004) (allowing a separate action to determine ownership). While an
action for unlawful entry and detainer is properly filed in justice court, an action to determine
ownership of the property must be filed in chancery court.2 Id.; Miss. Const. art. 6, § 160;
see also Graves v. Dudley Maples L.P., 950 So. 2d 1017, 1022 (¶22) (Miss. 2007) (chancery
court has jurisdiction over matters involving property).
¶17. In White v. Usry, 800 So. 2d 125, 127 (¶5) (Miss. Ct. App. 2001), the plaintiff filed
a complaint for unlawful entry and wrongful detainer in the Hinds County County Court.
The defendant filed a counterclaim asking the trial court to remove the plaintiff’s claim as
a cloud on his title to the property. Id. at 128 (¶12). On appeal, this Court held that the
defendant’s “counterclaim sought to have title confirmed, something improper in an unlawful
entry and detainer action in county court but eminently appropriate for a chancery suit.” Id.
at 129 (¶14) (citing Miss. Const. art. 6, § 160).
¶18. We find the Harveys’ argument on appeal procedurally barred and without merit.
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In Gandy, 985 So. 2d at 373 (¶8), this Court recognized that “[a]n action for
unlawful entry and detainer must be maintained in the justice court pursuant to Mississippi
Code Annotated section 11-25-1 . . . or in the county court pursuant to . . . Mississippi Code
Annotated section 11-25-101[ (Rev. 2004).]” This Court clarified that although “the county
court shall have exclusive jurisdiction over matters of unlawful entry and detainer[,] . . . an
action for unlawful entry and detainer should be brought in justice court only when the
county where the action is filed does not have a county court.” Id. Grenada County does
not have a county court; as a result, FNMA filed the instant action in justice court. After “a
ruling in justice court, the aggrieved party may appeal the ruling to the circuit court for a
new hearing on the merits, albeit in a summary manner.” Id.; see also Miss. Code Ann. §
11-51-83 (Rev. 2004).
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¶19. THE JUDGMENT OF THE GRENADA COUNTY CIRCUIT COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANTS.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, FAIR, WILSON
AND GREENLEE, JJ., CONCUR. JAMES, J., CONCURS IN PART WITHOUT
SEPARATE WRITTEN OPINION.
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