Brown Lakeland Properties v. Renasant Bank

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2016-CA-01448-COA

BROWN LAKELAND PROPERTIES AND APPELLANTS
CHARLES H. BROWN

v.

RENASANT BANK APPELLEE

DATE OF JUDGMENT: 09/08/2016
TRIAL JUDGE: HON. STEVE S. RATCLIFF III
COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: PAMELA L. HANCOCK
JEFFREY BRYAN MCGUIRE
ATTORNEYS FOR APPELLEE: SCOTT R. HENDRIX
L. BRADLEY DILLARD
ROBERT BRANNON KAHLSTORF
NATURE OF THE CASE: CIVIL - REAL PROPERTY
DISPOSITION: AFFIRMED - 02/06/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE LEE, C.J., FAIR AND GREENLEE, JJ.

LEE, C.J., FOR THE COURT:

¶1. In this appeal we must decide whether the trial court properly granted summary

judgment in favor of Renasant Bank, finding it was entitled to a deficiency judgment against

Brown Lakeland Properties LLC (BLP) and Charles Brown (Brown). Finding no error, we

affirm.

FACTS AND PROCEDURAL HISTORY

¶2. In November 2012, BLP executed two commercial promissory notes to Renasant

Bank for the loan amounts of $2,880,320.87 (Note One) and $906,786.40 (Note Two). Note
One was secured by a 635-acre parcel of land in Yazoo County, Mississippi, and a 2.93-acre

parcel of property in Brandon, Mississippi, on which a bowling alley sat. Note Two was

secured by a 6.75-acre parcel of land on Old Fannin Road, also in Brandon, Mississippi. At

the time the loans were made, Brown executed and delivered to Renasant Bank multiple

continuing guaranties related to the notes, and in doing so, individually guaranteed to

Renasant the indebtedness due on the notes. BLP defaulted on both loans, and Renasant

foreclosed on the properties that had been pledged as security under the notes. Renasant

purchased all three parcels at a public foreclosure sale.

¶3. In anticipation of the foreclosure sales, Renasant Bank obtained appraisals for all three

parcels of land. The appraisals reported that the 2.93-acre, bowling-alley parcel had a market

value of $1,500,000 and a disposition value (foreclosure or liquidation value) of $900,000;

the 635-acre tract in Yazoo County had a market value of $1,240,000 and a disposition value

of $930,000; and the 6.75-acre tract in Brandon had a market value of $1,475,000 and a

disposition value of $885,000. In December 2014, at a public foreclosure sale, Renasant

purchased the Rankin County properties—the 2.93-acre parcel for $778,100 and the 6.75-

acre parcel for $780,000. Renasant purchased the Yazoo County 635-acre parcel for

$900,000 at a public foreclosure sale in March 2015. BLP and Brown were given notice of

the sales but did not attend either sale or bid on the properties.

¶4. In April 2015, Renasant sold the Yazoo County property to a third-party purchaser for

an amount greater than that obtained at the foreclosure sale. Accordingly, Renasant applied

the excess proceeds of $198,774.44—being the difference between the proceeds from the

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foreclosure sale and the proceeds from the third-party purchase—as a credit to the

indebtedness owed under the notes. Likewise, in May 2015, Renasant sold the Rankin

County properties to a third-party purchaser for an amount greater than that obtained at the

foreclosure sale. Renasant also applied the excess proceeds from this sale, $228,501.59, as

a credit to the indebtedness due under the notes.

¶5. After the collateral was liquidated and the excess proceeds from the third-party sales

applied as credits to the notes, BLP and Brown remained indebted under the notes and

continuing guaranties for the amount of $1,375,824.69. In July 2015, Renasant filed a

complaint against BLP and Brown individually, seeking payment for the indebtedness due

under the notes and continuing guaranties, as well as attorneys’ fees and costs. In September

2015, BLP and Brown filed their answer, generally denying all of Renasant’s claims and

asserting all available defenses. BLP also filed a counterclaim, alleging that the foreclosure

sales should be set aside for inadequate purchase prices, and that Renasant was negligent for

failing to sell the properties in a commercially reasonable manner by failing to secure

purchase prices that reflected the fair market values of the properties.

¶6. In May 2016, Renasant moved for summary judgment, asserting that it was entitled

to relief under the terms of the notes and continuing guaranties due to the default of BLP.

Renasant also moved for summary judgment with regard to BLP’s counterclaim, asserting

that there was no genuine issue of material fact regarding the commercial reasonableness of

the sale. After a hearing on the motion, the trial court granted Renasant’s motion for

summary judgment, holding that BLP and Brown owed Renasant $1,416,722.86, which

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included legal fees, pre- and post-judgment interest, and costs. The trial court also dismissed

BLP’s counterclaim with prejudice. BLP and Brown now appeal and assert the following

issues: 1) Renasant failed to demand the post-foreclosure deficiencies; 2) Renasant failed to

establish that its bids represented the fair market value of the properties; and 3) the appraisals

of the properties were deficient.

STANDARD OF REVIEW

¶7. This Court reviews a trial court’s grant of summary judgment de novo. Donovan v.

Burwell, 199 So. 3d 725, 729 (¶10) (Miss. Ct. App. 2016) (citing Evans v. Howell, 121 So.

3d 919, 922 (¶14) (Miss. Ct. App. 2013)). Under Mississippi Rule of Civil Procedure 56(c),

summary judgment should be granted to the party seeking it, “if the pleadings, depositions,

answers to interrogatories and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is entitled to

a judgment as a matter of law.” We review the evidence in the light most favorable to the

nonmoving party. Donovan, 199 So. 3d at 729 (¶10). However, the party opposing summary

judgment “may not rest upon the mere allegations or denials of his pleadings, but his

response, by affidavits or as otherwise provided in this rule, must set forth specific facts

showing that there is a genuine issue for trial.” M.R.C.P. 56(e). “If he does not so respond,

summary judgment, if appropriate, shall be entered against him.” Id.

DISCUSSION

I. Demand for Post-Foreclosure Deficiency

¶8. BLP and Brown argue that Renasant “failed to show as a matter of record that any

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demand for the post-foreclosure deficiencies was ever made,” and that this alone should have

precluded summary judgment. For support, BLP cites only one case, Gutierrez v. Gutierrez,

153 So. 3d 703, 708 (¶13) (Miss. 2014), wherein the Mississippi Supreme Court stated, “The

record does not contain evidence that demand has ever been made for the deficiency on the

second mortgage, which is required under Mississippi law before a mortgagee can collect a

post-foreclosure deficiency.” However, we do not find that this isolated statement from

Gutierrez is applicable to the instant case.

¶9. In Gutierrez, an appeal arising from a divorce action, the husband asserted that the

chancellor erred in the calculation of assets and liabilities, resulting in an erroneous equitable

distribution. Id. at 707-08 (¶10). The parties’—husband and wife—marital home was

subject to two mortgages. Id. at 708 (¶11). Before trial, the bank holding the first mortgage

foreclosed, which covered the first mortgage, but there was a balance remaining on the

second mortgage. Id. The chancellor assessed the balance on the second mortgage equally

between the husband and wife as a liability, even though the wife had not signed the

promissory note and the chancellor had, in his alimony analysis, listed the second mortgage

as the debt of the husband. Id. at (¶¶11-12). The supreme court’s statement that the second

mortgagee must make demand was specifically in relation to the fact that the chancellor

assigned part of the deficiency on the second mortgage as a liability to the wife without

“address[ing] the parties’ respective obligations in the event the second mortgagee did obtain

a deficiency judgment,” and the holder of the second mortgage had not yet evidenced any

intention to collect on the remaining balance. Id. at (¶13). Gutierrez simply does not apply

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here. The instant case does not deal with a second mortgage, nor does it deal with a

mortgagee who has not shown an intention to collect on the indebtedness owed to it.

¶10. Moreover, the record in the instant case supports that demand was made. In his sworn

affidavit, Scott Williams, vice president and special-assets officer with Renasant Bank, stated

that Renasant had made demand upon BLP as borrower and Brown individually as guarantor,

to pay in full the principal and interest due and owing under the notes and guaranties. And

finally, under the terms of the promissory note, BLP “waive[d] any required notice of . . .

demand” and, in the event of default, Renasant could “pursue any remedy available” under

the loan documents, at law, or in equity. In a forbearance agreement executed to extend the

maturity date of the loan, BLP and Brown acknowledged that the loan documents were valid

and enforceable and that it had no defenses. BLP does not dispute that it defaulted, nor does

it allege that the foreclosure was wrongful. This issue is without merit.

II. Fair Market Value

¶11. In its second issue on appeal, BLP argues that Renasant failed to establish that its bids

at the foreclosure sales represented fair market value of the property because its bids were

less than the appraised values.

¶12. “The creditor has no right to a deficiency judgment until he satisfies the court that it

would be equitable, in the light of the sale price, to authorize a deficiency judgment.”

Hartman v. McInnis, 996 So. 2d 704, 710 (¶21) (Miss. 2007) (quoting Wansley v. First Nat’l

Bank, 566 So. 2d 1218, 1225 (Miss. 1990)). “Something more than a difference between the

price paid at the foreclosure and the amount of the indebtedness must be demonstrated before

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the mortgagee is entitled to a deficiency judgment.” Id. (quoting Wansley, 566 So. 2d at

1224). “Where the foreclosing creditor buys at foreclosure, it must give the debtor fair credit

for the commercially reasonable value of the collateral.” Id. at 711 (¶23) (quoting Wansley,

566 So. 2d at 1221-22, 1224-25). “To determine the adequacy of the purchase price in

satisfying the debt, the mortgagee must establish the fair market value of the property.” Id.

(citing Allied Steel Corp. v. Cooper, 607 So. 2d 113, 118-19 (Miss. 1992)).

¶13. “‘Fair market value’ is defined as ‘the amount at which property would change hands

between a willing buyer and a willing seller, neither being under any compulsion to buy or

sell and both having reasonable knowledge of the relevant facts.”’ Id. (quoting Black’s Law

Dictionary 414 (6th ed.1991)). “The determination of the fair market value is a question for

the trier of fact . . . .” Id. (quoting Allied Steel, 607 So. 2d at 118-19).

¶14. Here, Renasant provided evidence concerning the fair market value of both the Rankin

County and Yazoo County properties. It hired independent certified appraisers to conduct

appraisals in anticipation of the foreclosure sales, and the appraisal reports were completed

in August 2014 (Rankin County properties) and January 2015 (Yazoo County

property)—both shortly before the properties were sold.

¶15. BLP contends that Renasant did not establish the fair market value because it

undisputedly purchased the three parcels for less than the foreclosure values by its own

appraisals. However, Renasant did not merely demonstrate “a difference between the price

paid at the foreclosure and the amount of indebtedness” in support of a deficiency judgment.

All three parcels were later sold to third parties, demonstrating “the amount at which property

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would change hands between a willing buyer and a willing seller,” i.e., the fair market value.

To the extent that these third-party sales resulted in an amount greater than the price paid at

the foreclosure sale, Renasant applied these amounts, in addition to the foreclosure-sale

prices, as a credit on BLP’s indebtedness. Thus, by applying the credit from the third-party

sales, Renasant gave BLP fair credit for the commercially reasonable value of the collateral

and, in doing so, BLP was credited with a price greater than that of the appraised disposition

values for both the Rankin County and Yazoo County properties. The record demonstrates

that in regard to the Yazoo County property, BLP was credited with approximately $170,000

more than the appraised disposition value, and the credit was within approximately $150,000

of the appraised maximum market value. In regard to the Rankin County properties, BLP

received credit for $1,786,000—the price at which the properties sold—being $1,000 more

than the combined appraised disposition values. Renasant therefore established the fair

market value of the properties and credited BLP with the same.

¶16. BLP failed to contradict the appraisal values or the third-party sales values with their

own appraisals or other expert opinion regarding the fair market value of the property. BLP

asserted that it received an offer to purchase a portion of the Rankin County property, and

that the amount was greater, per square foot, than that obtained at the foreclosure and third-

party sales. Our law is clear, however, that “evidence of mere offers or options to purchase

property is not competent to establish [a property’s] fair market value.” Allied Steel, 607 So.

2d at 119. Furthermore, fair market value is not established by extrapolating an inadmissible

offer for a part of a parcel as evidence for value of the whole parcel. Thus, BLP failed to

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present any competent evidence of fair market value to rebut the fair market value

established by Renasant.

¶17. While BLP argues that there is a genuine issue of material fact regarding the fair

market value and sale of the properties, “[a] fact is neither material nor genuinely contested

. . . merely because one party proclaims it so.” Suddith v. Univ. of S. Miss., 977 So. 2d 1158,

1167 (¶10) (Miss. Ct. App. 2007). A dispute is “genuine” where “the evidence is such that

a reasonable jury could return a verdict for the nonmovant.” Frazier v. McDonald’s Rests.

of Miss. Inc., 102 So. 3d 341, 345 (¶21) (Miss. Ct. App. 2012) (citing Anderson v. Liberty

Lobby Inc., 477 U.S. 242, 248 (1986)).

¶18. Here, there is no evidence that the appraised values or the third-party sales values

were not fair market values. A party opposing the motion for summary judgment “must rebut

by producing significant probative evidence showing that there are indeed genuine issues for

trial.” Miller v. Myers, 38 So. 3d 648, 651 (¶13) (Miss. Ct. App. 2010). The fair market

value as established by Renasant was not genuinely disputed by contrary evidence, and BLP

failed to meet its burden of rebuttal. Renasant established the fair market value of the

properties and demonstrated that there was no genuine issue of material fact with respect to

the same. BLP failed to rebut with any competent evidence showing there was a genuine

dispute regarding the fair market value and sales price of the properties. Therefore, Renasant

established that it was entitled to a deficiency judgment and summary judgment was proper.

This issue is without merit.

III. Adequacy of the Appraisals

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¶19. BLP also asserts that the appraisals were deficient and were “inadequate as a proper

metric of value for the subject parcels.”

¶20. “Three standards are accepted in determining fair market value for real property: (1)

the cost approach, (2) the income-capitalization approach, and (3) the market-data or

comparative-sales approach.” Gulf S. Pipeline Co. v. Pitre, 35 So. 3d 494, 498 (¶6) (Miss.

2010). “These approaches do not, considered singly, establish value. Each rather is one

approach to value, with the appraiser’s estimate of value being, in the end, an opinion which

is the product of a reconciliation of the indications yielded by the three approaches.” Id.

¶21. In this case, the Rankin County properties were appraised using the comparative-sales

and income-capitalization approaches. The Yazoo County property was appraised using the

comparative-sales and cost approaches. The respective appraisals employed the applicable

approaches to value, and reconciled the values of the approaches utilized for a final value

opinion. BLP criticizes the appraisals stating the approaches used were “either a worthless

method, or in some instances, a potentially useful method was not employed.” However,

BLP does not offer evidence or state with specificity what approach should have been used

in the alternative. Nor does BLP offer expert valuation testimony or competing appraisals.

The record demonstrates that the appraisal reports were thorough and the methods utilized

were well supported.

¶22. Again, “[a] fact is neither material nor genuinely contested . . . merely because one

party proclaims it so.” Suddith, 977 So. 2d at 1167 (¶10). Here, there is no genuine dispute

that the appraisals were deficient as Renasant has established that the appraisals utilized the

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applicable methods and BLP has offered no proof or evidence to the contrary. Additionally,

the appraisals were not the only proof of value, as the actual market sales values were present

in this case and BLP was given credit for the same. There is no genuine dispute regarding

the adequacy of the appraisals or appraisal methods. Thus, this issue is without merit.

¶23. With respect to Renasant’s claim against Brown individually as a guarantor, Renasant

is not required to demonstrate that the foreclosure price was commercially reasonable. See

Bosarge v. LWC MS Props. LLC, 158 So. 3d 1137, 1143 n.5 (Miss. 2015). “[U]nlike suits

where the lender sues the primary borrower, an individual guaranty (as written in the

contracts applicable here) does not require foreclosure or fairness of price. The guarantor

is immediately liable upon the borrower’s . . . default.” Id. Here, Brown executed continuing

guaranties which waived all defenses to the debt owed under the notes. Under the terms of

the guaranty, in the event of default, Brown as guarantor would be liable for all the

indebtedness under the notes. There is no dispute that BLP defaulted under the notes and,

as a result, Brown is liable individually for the indebtedness due to Renasant.

CONCLUSION

¶24. Summary judgment is appropriate where there is no genuine issue of material fact, and

the movant has established that it is entitled to a judgment as a matter of law. M.R.C.P 56(c).

“The mortgagee’s right to a deficiency decree usually depends on the facts and circumstances

of each case . . . .” Hartman, 996 So. 2d at 711 (¶22). BLP and Brown do not dispute that

they owe Renasant some money under the notes and continuing guaranties, but rather dispute

the amount they owe under the facts and circumstances of this case. However, Renasant has

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established that it is entitled to a deficiency judgment against BLP and Brown for the

remaining indebtedness due under the notes and under the personal guaranty. Despite BLP’s

and Brown’s assertions, they have failed to present any competent evidence contradicting the

claims established by Renasant, and thus fail to demonstrate there are genuine issues of

material fact. The trial court’s judgment for Renasant Bank “against [BLP] and Brown,

jointly and severally in the amount of . . . [$1,416,722.86], [including] $16,000.00 in legal

fees, plus pre- and post-judgment interest at the highest lawful rate, costs and any future

accruing reasonable attorneys’ fees and expenses of Renasant Bank pursuant to the Notes and

related guaranties” is affirmed.

¶25. AFFIRMED.

GRIFFIS, P.J., CARLTON, FAIR, WILSON, GREENLEE, WESTBROOKS
AND TINDELL, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE
RESULT WITHOUT SEPARATE WRITTEN OPINON. BARNES, J., NOT
PARTICIPATING.

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