231 So.3d 208
Miss. Ct. App.2017Background
- Decedent Norair Avakian died July 19, 2010; his widow Burnette was appointed executrix and failed to mail statutory notice to known or reasonably ascertainable creditors after probate.
- Norair had executed a promissory note (later owned by Citibank/Wilmington Trust and serviced by J.P. Morgan) secured by deeds of trust on the marital home; foreclosure attempts occurred in 2010 and 2012.
- Burnette sued in chancery (removed to federal court) to enjoin foreclosure; the federal district court ruled deeds unenforceable in February 2014, but the Fifth Circuit issued a stay on foreclosure during appeal (May 12, 2014) and later reversed the district court (December 9, 2014); final district judgment entered August 4, 2015.
- Creditor filed a statement of claim in probate on October 15, 2014 for the promissory-note debt; Burnette contested the claim as time‑barred under the probate claim filing statute and as extinguished under the four‑year limitations for suits against executors.
- The chancery court held (1) the probate filing period (90 days) never began to run because executrix failed to mail statutorily required notice under Miss. Code § 91-7-145, so the October 2014 probate claim was timely; and (2) the four-year statute of limitations on an action to enforce the note was tolled by the Fifth Circuit’s stay under Miss. Code § 15-1-57, so the creditor’s later suit was timely. Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument (Burnette) | Defendant's Argument (Creditor) | Held |
|---|---|---|---|
| Whether probate claim was time‑barred under § 91‑7‑151 (90‑day rule) | Burnette: claim untimely because filed long after 90 days from publication | Creditor: 90‑day filing period was not triggered because executrix did not mail required notice to creditors | Court: 90‑day period did not run because executrix failed to mail notice; probate claim timely |
| Whether four‑year statute of limitations to sue executor (§ 15‑1‑25) expired | Burnette: statute began after 90‑day moratorium and expired Oct. 26, 2014; creditor’s enforcement action untimely | Creditor: tolling applies because federal stay prohibited foreclosure and prevented enforcement | Court: tolling under § 15‑1‑57 applied while Fifth Circuit stay in effect; limitations tolled and creditor’s suit timely |
| Whether prior foreclosure attempts (2010, 2012) tolled or constituted suits under § 15‑1‑25 | Burnette: foreclosure attempts should count as initiating enforcement (or at least not toll) | Creditor: earlier efforts and federal proceedings impacted timing and rights | Court: 2010/2012 foreclosure attempts did not constitute suits for purposes of § 15‑1‑25; tolling instead triggered by appellate stay |
| Whether equitable estoppel or other doctrines bar creditor’s claims | Burnette: estoppel applies against creditor | Creditor: equitable tolling/estoppel favors creditor due to injunction/stay | Court: equitable tolling via statutory provision applied; no error in chancellor’s equitable application |
Key Cases Cited
- In re Estate of Petrick, 635 So.2d 1389 (Miss. 1994) (executor must make reasonably diligent efforts and mail notice to reasonably ascertainable creditors)
- Temples v. First Nat’l Bank of Laurel, 123 So.2d 852 (Miss. 1960) (tolling on a note can toll related mortgage remedies)
- Thomas v. Thomas, 883 So.2d 1173 (Miss. 2004) (statutory 90‑day probate limit is not self‑executing where administrator fails to give required notice)
- Grant v. State, 686 So.2d 1078 (Miss. 1996) (tolling under statute requires the claimant be personally prohibited from bringing suit)
- Stringer v. Trapp, 30 So.3d 339 (Miss. 2010) (statute‑of‑limitations questions are matters of law reviewed de novo)
- Cent. Optical Merch. Co. v. Lowe’s Estate, 160 So.2d 673 (Miss. 1964) (requirements for a probated claim to show a prima facie right against the estate)