Melanie Bosarge v. LWC MS Properties, LLC
158 So. 3d 1137
| Miss. | 2015Background
- In Sept. 2008 LWC loaned Indian Head Station, LLC $3.5M secured by deed of trust; Melanie Bosarge (sole member of Indian Head) signed a continuing personal guaranty for up to $3.5M plus fees/interest.
- LWC alleged Indian Head defaulted (date unclear), accelerated the loan, foreclosed in 2011, was sole bidder at the sale ($1,000,000), and later resold the property for $1,200,000.
- LWC sought a deficiency/guaranty judgment against Bosarge, originally claiming a $2,250,000 deficiency plus claims for waste and attorney’s fees; trial court awarded $2,670,000 (principal + accrued interest) on summary judgment.
- Bosarge (initially pro se) produced an April 2010 appraisal valuing the property at $3.4M and filed an affidavit claiming Indian Head never received the full $3.5M; she also challenged LWC’s $900,000 appraisal as flawed.
- The trial court granted LWC summary judgment and dismissed other pending motions as moot; the Mississippi Supreme Court reversed and remanded, finding material factual disputes about the amount actually transferred and payments made.
Issues
| Issue | Plaintiff's Argument (Bosarge) | Defendant's Argument (LWC) | Held |
|---|---|---|---|
| Whether genuine issue of material fact exists as to the amount of indebtedness owed by Indian Head / guarantor | Bosarge contends she/Indian Head never received the full $3.5M and that payments/credits were not accounted for; also disputes LWC appraisal and foreclosure credit | LWC treats the signed note/guaranty as establishing the $3.5M indebtedness and seeks deficiency after foreclosure | Reversed summary judgment — material factual issues (amount transferred, payments, and appraisal reliability) preclude summary judgment and must be resolved at trial |
| Whether LWC could maintain suit while administratively dissolved | Bosarge argued LWC was dissolved and could not sue | LWC reinstated with Secretary of State and argued reinstatement cured the defect | Court did not decide on appeal; remanded for trial court to consider pending motions including dissolution issue |
| Whether Bosarge should have been allowed to amend pleadings / file counterclaims before summary judgment | Bosarge sought more discovery, appraisal, and to amend pleadings | LWC moved for summary judgment | Court remanded — trial court should consider Bosarge’s pending motions on remand (not decided in this opinion) |
Key Cases Cited
- City of Jackson v. Sutton, 797 So. 2d 977 (Miss. 2001) (standard of de novo review on summary judgment and evidence to be examined)
- Monsanto Co. v. Hall, 912 So. 2d 134 (Miss. 2005) (standard for summary judgment when no genuine issue of material fact exists)
- J. Criss Builder, Inc. v. White, 35 So. 3d 541 (Miss. Ct. App. 2009) (de novo review of conclusions of law)
- Miller v. Meeks, 762 So. 2d 302 (Miss. 2000) (nonmoving party must set forth specific facts showing genuine issue for trial)
- Hartman v. McInnis, 996 So. 2d 704 (Miss. 2008) (discussion of creditor buying at foreclosure and fair-credit rule)
- Lake Hillside Estates, Inc. v. Galloway, 473 So. 2d 461 (Miss. 1985) (commercially reasonable foreclosure credit principle)