Tony L. Pagador v. Trustmark National Bank
2017 Miss. App. LEXIS 518
| Miss. Ct. App. | 2017Background
- In 2006 Tony Pagador purchased a Gulfport, MS home and executed a deed of trust and promissory note; the deed contained a VA rider and the loan was assigned to Trustmark National Bank.
- Pagador made payments through June 2010, then discovered toxic Chinese drywall and moved out for remediation.
- Trustmark granted two documented VA special forbearance periods: July 1–Dec. 31, 2010 and May–Aug. 31, 2011; Pagador made no payments after June 2010.
- Pagador alleged a third forbearance/extension through March 2012 based on an email from his mother alleging a verbal assurance, but produced no sworn evidence or documentation of any extension.
- Trustmark issued acceleration/foreclosure notices and a substitute trustee advertised a foreclosure sale set for March 22, 2012; Pagador did not cure the default or object to the foreclosure prior to sale.
- The Harrison County Circuit Court granted Trustmark summary judgment; on de novo review the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Pagador was in default at foreclosure | Pagador: he was in an active VA special forbearance (extended through March 2012) so not in default | Trustmark: only two forbearances were granted; no evidence of a third or extension; missed payments after June 2010 | Held: Pagador was in default—no admissible evidence of a third forbearance; summary judgment for Trustmark |
| Whether Trustmark breached contract by failing to follow deed/VA rules before foreclosure | Pagador: Trustmark violated deed/VA regulations and should have extended foreclosure timeline and given conditions precedent | Trustmark: VA rider and deed contain no obligation to grant further forbearance; it complied with loss-mitigation by granting two forbearances | Held: No breach—no contractual or regulatory duty to grant additional forbearance |
| Whether Trustmark failed to give notice of acceleration as required by the deed | Pagador: deed required notice prior to acceleration | Trustmark: the VA rider expressly permits acceleration without prior notice and controls over conflicting deed provisions | Held: No notice violation—the VA rider allowed acceleration without prior notice |
| Whether Pagador’s other tort/contract claims survive (fraud, negligence, wrongful foreclosure, etc.) | Pagador: asserted multiple claims for damages arising from foreclosure | Trustmark: facts do not support these claims; failure to object to sale waives grounds to challenge foreclosure | Held: Claims lack merit and are waived by failure to timely object to the foreclosure sale |
Key Cases Cited
- Blanchard v. Mize, 186 So.3d 403 (Miss. Ct. App. 2016) (standard and treatment of summary judgment review)
- Handy v. Madison Cty. Nursing Home, 192 So.3d 1005 (Miss. 2016) (opposition evidence to summary judgment must be sworn except for undenied pleadings and Rule 36 admissions)
- Robinson v. Trustmark Nat’l Bank, 179 So.3d 1146 (Miss. Ct. App. 2015) (failure to object before sale waives grounds to challenge foreclosure)
- National Mortg. Co. v. Williams, 357 So.2d 934 (Miss. 1978) (mortgagor may elect remedies for wrongful foreclosure: set aside sale or recover damages)