Unreported / Non-Citable
Background
Curtis and Tywanic Snell financed the purchase of a mobile home and real property in Mississippi through a promissory note secured by a deed of trust in favor of 21st Mortgage Corporation. After missing their September and October 2023 payments, the Snells sent a series of partial payments, but 21st Mortgage returned them because they were insufficient to cure the continuing default.
A substituted trustee posted a notice of sale at the Oktibbeha County Chancery Courthouse and published notice for three consecutive weeks. After informing the Snells that $8,149.91 was required to cure the default, 21st Mortgage proceeded with the May 9, 2024 foreclosure sale and purchased the property as the highest bidder for $61,244.40. The Snells sued to set aside the sale, but the district court granted summary judgment to 21st Mortgage and denied the Snells’ cross-motion.
The Court’s Holding
The Fifth Circuit affirmed. On the notice issue, the record contained the substituted trustee’s notice, which included the information required by Mississippi law and was signed and dated by the county chancery court’s land-records clerk. The Snells had abandoned the issue by failing to address it at summary judgment, and their unsupported assertion that the notice was not physically posted could not otherwise create a genuine dispute of material fact.
The court also rejected the contention that 21st Mortgage violated Mississippi law by refusing the partial payments. Under the Mississippi Supreme Court’s decision in Weems v. Transamerica Mortgage Co., the governing reinstatement statute does not require a lender to accept payments that do not fully cure the default. The separate returned payments could not be aggregated on the assumption that all ultimately would have been paid, and the deed of trust expressly permitted the lender to return partial payments that were insufficient to bring the loan current.
Key Takeaways
- Unsupported allegations that a foreclosure notice was not physically posted do not create a fact dispute sufficient to defeat summary judgment.
- Mississippi’s mortgage-reinstatement statute does not require a lender to accept partial payments that fail to cure the full arrearage.
- Multiple rejected payments cannot be aggregated retrospectively when there is no evidence that the borrower would have tendered the entire cure amount.
Why It Matters
The decision confirms that Mississippi borrowers seeking to stop a foreclosure must tender the amount necessary to cure the default, including applicable costs and fees; a series of insufficient payments does not compel reinstatement. It also underscores that borrowers opposing summary judgment must support challenges to statutory foreclosure notice with evidence, not allegations alone.