Jerald D. McKinley v. James S. Welch, Jr. ( 2002 )


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  •                       IN THE SUPREME COURT OF MISSISSIPPI
    NO. 2002-CT-02070-SCT
    JERALD D. McKINLEY
    v.
    THE LAMAR BANK, JAMES S. WELCH, JR., AND
    GEORGE GUNTER
    ON WRIT OF CERTIORARI
    DATE OF JUDGMENT:                          10/29/2002
    TRIAL JUDGE:                               HON. MICHAEL R. EUBANKS
    COURT FROM WHICH APPEALED:                 LAMAR COUNTY CIRCUIT COURT
    ATTORNEYS FOR APPELLANT:                   LAWRENCE E. ABERNATHY, III
    JOHN T. KERSH
    ATTORNEYS FOR APPELLEES:                   AMANDA CLEARMAN WADDELL
    S. ROBERT HAMMOND, JR.
    MONICA R. MORRISON
    RICHARD F. YARBOROUGH, JR.
    NATURE OF THE CASE:                        CIVIL - CONTRACT
    DISPOSITION:                               THE JUDGMENT OF THE COURT OF APPEALS
    IS REVERSED, AND THE JUDGMENT OF THE
    LAMAR COUNTY CIRCUIT COURT IS
    REINSTATED AND AFFIRMED – 09/22/2005
    MOTION FOR REHEARING FILED:
    MANDATE ISSUED:
    EN BANC.
    CARLSON, JUSTICE, FOR THE COURT:
    ¶1.    Claiming, inter alia, that a bank had wrongfully commenced foreclosure proceedings
    on his property pursuant to a deed of trust which allegedly had previously been satisfied and
    canceled of record, Jerald D. McKinley commenced a suit for damages against the bank, the
    original holder of the deed of trust, and the bank’s substituted trustee. The trial court granted
    summary judgment in favor of the defendants and entered a final judgment dismissing
    McKinley’s case with prejudice.         Aggrieved by the trial court’s dismissal of his case,
    McKinley appealed, and his case was assigned to the Court of Appeals, which reversed the trial
    court’s judgment and remanded this case for a jury trial.     McKinley v. Lamar Bank, __ So.2d
    __, 
    2004 WL 1662257
    (Miss. Ct. App. 2004).            Upon a grant of certiorari, we find that the
    Court of Appeals erred; therefore, we reverse the judgment of the Court of Appeals and
    reinstate and affirm the judgment of dismissal entered by the Circuit Court of Lamar County.
    FACTS AND PROCEEDINGS IN THE TRIAL COURT
    ¶2.    The following facts are gleaned from the opinion of the Court of Appeals:
    Jerald and Minnie McKinley purchased a home from James S. Welch, Jr. on
    May 25, 1990. The McKinleys executed a deed of trust and promissory note to
    Welch to secure financing of the home. The deed of trust secured a $50,000
    indebtedness and provided for monthly payments in the amount of $482.40. It
    was recorded in the Forrest County Chancery Clerk’s office on May 29, 1990.
    On March 17, 1995, Welch recorded a photocopy of the original recorded deed
    of trust. The photocopy was denoted as a “Corrected Deed of Trust,” in which
    a Bobbie B. Hudson replaced Welch as the beneficiary. On May 23, 1995,
    Hudson reassigned all of her interest in the deed of trust back to Welch.
    Additionally, on that same day, Welch assigned all of his interest in the deed of
    trust to Lamar Bank as collateral for a loan financed by the bank. Both of these
    assignments were filed in the clerk’s office on June 6, 1995. It is noteworthy
    that the note from the McKinleys to Welch was assigned to Lamar Bank, but the
    bank never notified the McKinleys of the assignment.              Apparently, the
    McKinleys continued making payments to Welch, with no payments ever being
    made to Lamar Bank. Further, the bank did not send the notice of foreclosure
    to the McKinleys.
    2
    Gunter testified by deposition that he never talked with Welch prior to initiating
    foreclosure proceedings. He took Lamar Bank’s word that the McKinleys were
    in default on their promissory note to Welch. Lamar Bank said that Welch told
    it that the McKinleys were in default.
    On July 5, 1996, Welch canceled the recorded deed of trust in which he was
    listed as the beneficiary. On May 19, 1997, he paid off the loan financed by
    Lamar Bank and, on the same day, assigned to the bank for a second time all of
    his interest in the McKinley deed of trust. This second assignment was security
    for a new loan. This assignment was filed on June 23, 1997.
    In March 2001, McKinley defaulted on his promissory note to Welch. As a
    result, Lamar Bank appointed George Gunter as substitute trustee of the deed
    of trust and authorized Gunter to initiate foreclosure proceedings on
    McKinley’s property. Apparently, McKinley was not notified of the impending
    foreclosure proceedings, for according to McKinley, he learned of the
    foreclosure proceedings from his son who had seen the published notice in the
    local newspaper.
    McKinley filed a Chapter 13 bankruptcy to interrupt the foreclosure
    proceedings.    In response to the bankruptcy filing, Gunter terminated the
    foreclosure proceedings and took no further action in this regard. McKinley
    continued to live in the house without making any further payments until the
    house was destroyed by a fire in November 2001.
    
    Id. at **2-3, ¶¶
    3-8 (footnotes omitted).
    ¶3.    Asserting that the Lamar Bank, James S. Welch, Jr., and George Gunter initiated
    foreclosure proceedings against him on a deed of trust which Lamar Bank, Welch and Gunter
    knew had been satisfied and canceled of record, Jerald D. McKinley commenced this action
    against the Bank, Welch, and Gunter on May 18, 2001.       In his six-count amended complaint
    filed on October 9, 2002, pursuant to an agreed court order allowing the amended complaint,
    McKinley charged the defendants with (1) extortion, (2) conversion, (3) slander and libel, (4)
    gross negligence or willful misconduct, (5) conspiracy, and (6) conduct justifying the award
    3
    of punitive damages.       After extensive discovery, McKinley filed a motion for partial summary
    judgment, and the Bank and Gunter filed separate motions for summary judgment.                          We note
    here that the record reveals that Welch failed to appear and defend this action, and Welch
    likewise never submitted any sworn testimony via deposition or otherwise.1                     In his motion for
    partial summary judgment, McKinley sought a judicial declaration that the “corrected deed of
    trust” recorded by Welch on March 17, 1995, and indicating Bobbie B. Hudson to be the
    beneficiary thereunder, was “void, and of no consequence or effect.”                    On the other hand, in
    1
    As to Welch, we can ascertain certain facts after a thorough review of the record. At the time of
    the commencement of the suit on May 18, 2001, a summons was issued for service upon Welch at 155
    Beverly Hills Loop, Petal, Mississippi. The record is silent as to a return being filed on this summons. On May
    22, 2001, an alias summons was issued for service upon Welch (no address stated). Again, there is no return
    on this summons in the record. On June 29, 2001, another alias summons was issued for service upon Welch
    at P. O. Box 142, Gaulman (sic), Mississippi 39077. Once again, no return on this summons can be found in
    the record. However, on August 6, 2001, Welch, through an attorney, filed a separate motion for an additional
    thirty days to respond to the amended complaint, but “without waiving any of his defenses or objections to the
    in personam jurisdiction or subject matter jurisdiction of [the] [c]ourt.” On August 28, 2001, the same attorney
    who filed the motion for additional time for Welch, filed a motion to withdraw due to a “conflict” which had
    arisen between Welch and the attorney. By order entered on September 11, 2001, the trial judge permitted
    the attorney to withdraw as Welch’s attorney of record and the trial judge via the same order granted Welch
    an additional thirty days to retain an attorney, to file an answer, and to respond to discovery. This is the last
    time we hear from Welch, directly or through an attorney. We further note that the record reveals that on
    April 3, 2002, an agreed order setting a trial date was entered, and while the order was agreed to by the
    attorneys for McKinley, the Lamar Bank, and Gunter, Welch, nor anyone in his behalf, executed the order.
    We likewise note that subsequent executed certificates of service by the various attorneys reflect that copies
    of the designated pleadings were mailed directly to an unrepresented Welch. In fact, the trial judge, in his
    subsequently entered opinion, found as a fact that “[t]hough also a defendant in the lawsuit, Welch has failed
    to defend himself and has apparently not given any testimony in this action.” Although Welch’s name
    remained in the style of the case in all pleadings filed in the trial court (and before us), the trial court’s final
    judgment dismissed only the Lamar Bank and Gunter, but not Welch. Thus, the trial court wisely entered a
    Rule 54(b) final judgment. See Miss. R. Civ. P. 54(b). However, McKinley’s notice of appeal stated that he
    was appealing to this Court “against the Lamar Bank, James S. Welch, Jr., and George Gunter,” even though
    no final judgment was entered as to Welch. Finally, Welch has made no appearance before the Court of
    Appeals or this Court during the pendency of this appeal. Accordingly, we find that Welch is not a party to
    this appeal.
    4
    their respective motions for summary judgment, the Bank and Gunter sought a grant of
    summary judgment, in toto, thus dismissing this action against them.
    ¶4.     In a thorough 15-page opinion and order Circuit Judge Michael R. Eubanks denied
    McKinley’s motion for partial summary judgment and granted the motions for summary
    judgment filed by the Bank and Gunter. Likewise, on the same date, Judge Eubanks entered a
    final judgment consistent with the opinion and order, thus dismissing this action, with
    prejudice, pursuant to Miss. R. Civ. P. 54(b) and 58.
    ¶5.     We find the trial court’s detailed findings of fact to be critical to our disposition of this
    case; however, so as to not participate in an exercise of lengthy quotation of the trial court’s
    findings of fact, we will summarize these findings which are not redundant to the findings of
    fact made by the Court of Appeals, as we have already noted through quotation.         We begin by
    noting that while the Court of Appeals found that on July 5, 1996, Welch “canceled the
    recorded deed of trust in which he was listed as a beneficiary,” the trial court found that Welch
    “attempted to cancel” the deed of trust. The trial court also found that (1) McKinley failed to
    make both the April, 2001 and May, 2001 payments to Welch; (2) on May 9, 2001, after
    learning of the foreclosure proceedings from his son, McKinley went to Gunter’s office
    wanting to know the amount of money required to “get current on his house” and McKinley was
    informed by Gunter that the sum was $4,906.42, which included the arrearage, as well as
    publication costs and attorneys fees; (3) the foreclosure was scheduled to take place on May
    18, 2001, but one day before the scheduled foreclosure, McKinley filed for Chapter 13
    bankruptcy protection and Gunter, therefore, canceled the foreclosure proceedings so as to
    5
    not violate the bankruptcy court’s automatic stay; and, (4) on May 28, 2001, McKinley
    dismissed his bankruptcy proceedings, Gunter made no further attempts to foreclose on
    McKinley’s property, and McKinley continued to live in his home while making no further
    payments pursuant to the promissory note and deed of trust.2
    ¶6.    The trial court also detailed McKinley’s version of certain facts. As the trial court
    stated, McKinley recalled (as noted by his deposition testimony) that his used car dealership
    had purchased a $4,300 cashier’s check from the Lamar Bank, payable to Welch, on April 16,
    1999, but that McKinley did not remember purchasing the cashier’s check.                 Also, while
    McKinley stated the purpose for purchasing the cashier’s check was to use as a “cushion” in
    the event that he missed a payment (evidently claiming that Welch could “draw down” on this
    cashier’s check when McKinley missed a payment), McKinley never                       discussed   this
    “arrangement” with Welch. Nor was there any discussion as to how Welch should apply the
    $4,300, including whether Welch could simply apply the entire amount to the current balance
    on the note. Notwithstanding all of this, McKinley claimed that he could not be in default since
    Welch supposedly had available the sum of $4,300 from which to “deduct” any missed monthly
    payment. McKinley also never revealed this “cushion” to Gunter. McKinley also claimed that
    he had no further liability under the note and deed of trust after Welch canceled the deed of
    trust of record on July 5, 1996. McKinley attempted to undergird this assertion by stating that
    before his wife, Minnie, passed away in 1997, Minnie told McKinley not to worry about the
    2
    As noted by the trial court and the Court of Appeals, McKinley’s house was destroyed by fire in
    November, 2001.
    6
    house note, which he interpreted to mean that she had paid off the note. However, McKinley
    admitted that he was not aware of how Minnie could have generated the money to pay off the
    promissory note unless it happened to have come from her friend in Memphis, Tennessee, or
    a brother in Texas. The trial court noted, however, that this purported conversation between
    Minnie and McKinley occurred in June, 1997, almost a year after Welch had marked the deed
    of trust as canceled, and that despite Minnie’s alleged assurance that the house note “was taken
    care of,” McKinley continued making the monthly payments pursuant to the promissory note
    until March, 2001.
    ¶7.     McKinley made an alternative claim that Welch’s July, 1996 execution of the
    cancellation stamp on the deed of trust took effect when Welch paid off the first note to the
    Lamar Bank in 1997, and the 1995 assignment of the original deed of trust terminated. Using
    McKinley’s logic, even if, due to the 1995 assignment of the original deed of trust to the Bank,
    Welch had no interest in the original deed of trust at the time he stamped it as cancelled in
    1996, when Welch paid off the debt to the Bank in 1997 and the 1995 deed of trust assignment
    was terminated, the original deed of trust was again vested in Welch and Welch was thus bound
    by his 1996 cancellation of the deed of trust. Therefore, according to McKinley, because the
    deed of trust was cancelled, he owned the house, lien-free, and he was thus not in default on
    his mortgage.    Finally, McKinley asserted that the 1995 “corrected deed of trust” purporting
    to change the beneficiary from Welch to Hudson, was void; therefore, the original 1990 deed
    of trust was also void.
    PROCEEDINGS IN THE COURT OF APPEALS
    7
    ¶8.     In his brief, McKinley sets out eleven issues in his Statement of the Issues, but restates
    these issues by arguing five points: The trial court opinion was based on a mistake of fact; the
    foreclosure proceedings were commenced on a deed of trust which had been stamped “[p]aid
    in full, satisfied and cancelled;” even if the deed of trust had been assigned to the Lamar Bank
    at the time of its cancellation, the cancellation became valid when Welch paid off the
    promissory note to the Bank; McKinley was not in default on his promissory note to Welch;
    and, the trial court inappropriately relied upon an affidavit of Deborah Graham, Gunter’s
    secretary, even though Graham was not identified in discovery as a potential witness, and even
    though Graham’s testimony contradicted Gunter’s testimony. 3                     The Court of Appeals
    summarized the issues as:
    (1) [W]hether the altered deed of trust was an original document or a photocopy,
    (2) whether the loan for the house had been paid off, (3) whether [McKinley]
    was in default on his house payments in light of a lump sum payment to Welch,
    and (4) whether the affidavit of Deborah Graham should have been stricken.
    
    2004 WL 1662257
    , at *1 ¶ 1.
    3
    In her affidavit attached to Gunter’s motion for summary judgment, Graham, Gunter’s legal
    secretary, testified, inter alia, that Welch came into the office wanting to foreclose on the property because
    McKinley was behind in his payments; that the Lamar Bank had sent Welch to Gunter’s office to make the
    foreclosure request; that upon her request for Welch’s receipt book, Welch complied with the request by
    bringing Graham the receipt book several days later, at which time she copied the receipt book and returned
    the original receipt book to Welch; that she informed Gunter of Welch’s office visits; that on April 10, 2001,
    she went to Lamar Bank, at which time Bank Vice-President Brad Holmes executed an Appointment of
    Substituted Trustee appointing Gunter as the substitute trustee; that prior to the first newspaper publication
    of the foreclosure notice, McKinley’s son (Mark), who worked in the same building where Gunter’s law
    office was located, came by the law office, at which time Graham informed him that “his father’s house was
    in the process of foreclosure;” that Mark expressed no surprise or emotion upon learning about the
    foreclosure, but instead stated that “he knew his father was struggling and did not know why his father did
    not come to he and his brothers for help;” and, that Mark requested and received from her the arrearage
    amount, and stated to her that he was going to discuss this matter with his brothers to determine if they could
    assist their father.
    8
    ¶9.       The Court of Appeals, in a 5-3 opinion (three judges dissented without a separate
    written opinion), found no merit in Issues (1), (3), and (4), but found as to Issue (2) that there
    existed a genuine issue of material fact as to whether the indebtedness which was secured by
    the deed of trust had been satisfied.         En route to its finding on this issue, the Court of Appeals
    stated:
    We have not been able to find any case in Mississippi or in any other
    jurisdiction on all fours with the case before us. However, we believe that
    Emmons v. Lake State Ins. Co., 
    193 Mich. App. 460
    , 
    484 N.W.2d 712
    , 714
    (1992) and Blacketor v. Cartee, 
    172 Miss. 889
    , 
    161 So. 696
    (1935) provide
    guidance.
    
    2004 WL 1662257
    , at *3, ¶ 13. In relying on Emmons and Cartee, the Court of Appeals held:
    Following the reasoning in Emmons and Cartee, we find that although the
    assignment was absolute on its face, it gave Lamar Bank only a qualified interest
    in the McKinleys’ property. Since the assignment was given as collateral
    security for Welch’s loan, the interest conveyed was commensurate with the
    debt. Hence, when Welch paid off his loan to Lamar Bank on May 19, 1997, the
    bank’s interest in the secured property ceased as of that moment, and the bank’s
    interest was reinvested in Welch to the same extent as it would have been if an
    actual reassignment from the bank to Welch had been executed.4 The fact that
    Welch apparently immediately thereafter executed another assignment does not
    prevent the aforementioned result.
    
    Id. at *4, ¶
    21. In applying the “after-acquired title” doctrine, the Court of Appeals opined that
    the indebtedness owed by McKinley to Welch had been paid off and satisfied. 
    Id. at *5, ¶
    23-
    4
    There appeared here in the Court of Appeals’s opinion footnote 7, which stated:
    This finding is commensurate with Mississippi law regarding the effect of
    payment of debts subjected to collateral security. See Mississippi Code
    Annotated section 89-1-49 (1972) which states that payment of the money
    secured by a deed of trust “shall extinguish it, and revest the title in the
    mortgagor as effectually as if reconveyed.”
    9
    24.5 The Court of Appeals likewise found an issue of negligence on the part of the Bank and
    Gunter, which could only be resolved by a jury. The questionable negligence was the purported
    failure by the Bank and Gunter to exercise ordinary diligence to discover that there was a
    recorded cancellation of the deed of trust. 
    Id. at **5-6, ¶¶
    25-28, *7, ¶ 36.
    ¶10.    The Court of Appeals, therefore, reversed the trial court on this issue and remanded the
    case to the trial court for a jury trial.      After the Court of Appeals denied the motion for
    rehearing, Gunter filed a petition for writ of certiorari, which was granted by this Court.
    DISCUSSION
    ¶11.    Gunter asserts that the Court of Appeals erred in (1) failing to address whether the
    purported cancellation of the original deed of trust was ineffective, “as it was a spoliation of
    that document,” thus causing the original deed of trust to still be enforceable and causing the
    commencement of the foreclosure proceedings to be appropriate; (2) applying the “after-
    acquired title” doctrine to this case since McKinley had the same capability as Gunter to obtain
    information and McKinley’s statements to Gunter amounted to an admission that he
    (McKinley) was in default on the promissory note; (3) applying the “after-acquired title”
    doctrine because McKinley had not paid for any “conveyance of any interest from Welch;” (4)
    holding that Gunter had failed to exercise ordinary diligence; and, (5) relying on Emmons since
    McKinley’s property was never foreclosed on and the loan securing Welch’s second
    assignment to the Bank had not been satisfied.
    5
    However, in its conclusion, the Court of Appeals found that there existed a jury issue as to whether
    McKinley’s note had been paid in full at the time of the initiation of the foreclosure proceedings.
    10
    ¶12.   We must remember that this appeal was initially commenced by McKinley because of
    the grant of summary judgment by the Lamar County Circuit Court.            Thus, while we consider
    today’s case as a result of Gunter’s petition for writ of certiorari, such petition is due to the
    Court of Appeals’s finding of error on the part of the trial court in granting summary judgment
    in favor of Gunter and Lamar Bank. The issues before us today go directly to the propriety or
    impropriety on the part of the trial court in granting summary judgment. To determine whether
    the Court of Appeals properly reversed the trial court’s grant of summary judgment, we visit
    anew the trial court’s actions.    We thus apply a de novo standard of review concerning the
    propriety of a trial court’s grant or denial of summary judgment. Montgomery v. Woolbright,
    
    904 So. 2d 1027
    , 1029 (Miss. 2004); Brown ex rel. Ford v. J. J. Ferguson Sand & Gravel
    Co., 
    858 So. 2d 129
    , 130 (Miss. 2003); Armistead v. Minor, 
    815 So. 2d 1189
    , 1191-92 (Miss.
    2002); Richardson v. Methodist Hosp., 
    807 So. 2d 1244
    , 1246 (Miss. 2002). We recently
    discussed our responsibilities in reviewing cases involving summary judgments:
    We apply a de novo standard of review of a trial court’s grant or denial of a
    motion for summary judgment. Satchfield v. R. R. Morrison & Son, Inc., 
    872 So. 2d 661
    , 663 (Miss. 2004); McMillan v. Rodriguez, 
    823 So. 2d 1173
    , 1176-
    77 (Miss. 2002); Lewallen v. Slawson, 
    822 So. 2d 236
    , 237-38 (Miss. 2002);
    Jenkins v. Ohio Cas. Ins. Co., 
    794 So. 2d 228
    , 232 (Miss. 2001); Aetna Cas.,
    & Sur. Co. v. Berry, 
    669 So. 2d 56
    , 70 (Miss. 1996). Accordingly, just like the
    trial court, this Court looks at all evidentiary matters in the record, including
    admissions in pleadings, answers to interrogatories, depositions, affidavits, etc.
    
    Id. at 70. The
    evidence must be viewed in the light most favorable to the party
    against whom the motion has been made. 
    Id. If, in this
    view, the moving party
    is entitled to judgment as a matter of law, summary judgment should forthwith
    be entered in his favor. 
    Id. When a motion
    for summary judgment is made and
    supported as provided in Miss. R. Civ. P. 56, an adverse party may not rest upon
    the mere allegations or denials of the pleadings, but instead the response must
    11
    set forth specific facts showing that there is a genuine issue for trial. Miller v.
    Meeks, 
    762 So. 2d 302
    , 304 (Miss. 2000). If any triable issues of fact exist, the
    trial court’s decision to grant summary judgment will be reversed. Otherwise,
    the decision is affirmed. 
    Id. at 304. Harrison
    v. Chandler-Sampson Ins., Inc., 
    891 So. 2d 224
    , 228 (Miss. 2005).
    ¶13.   We first address the Court of Appeals’ treatment of the three issues raised by McKinley
    and in which the Court of Appeals found no merit. McKinley claimed error in the trial court’s
    failure to find that the original 1990 deed of trust from the McKinleys to Welch had been
    altered. We agree that both the trial court and the Court of Appeals correctly found that the
    original deed of trust had not been altered. In essence, McKinley argues that when Welch filed
    his “corrected” deed of trust in 1995, he had in fact altered the original deed of trust and not
    just a copy of the deed of trust. We again note that the 1995 “corrected” deed of trust reveals
    that the name “James S. Welch, Jr.” is lined through, with the word “Corrected” hand-written
    above the “line-through.” Below the “line-through” is the name “Bobbie B. Hudson” written in
    long-hand. On this issue, the Court of Appeals found:
    A thorough review of the record reveals that Welch did not alter the original
    document, but instead altered a photocopy of the original document. Therefore,
    the original deed of trust remained valid and is thus binding. For the forgoing
    (sic) reasons, we find this issue is without merit.
    McKinley v. Lamar Bank, 
    2004 WL 1662257
    , at *2, ¶ 11. Our review of the record brings
    us to the same conclusion as that of the trial court and the Court of Appeals. We also note that
    there are notations on the “corrected” deed of trust, unrelated to the “corrections,” which
    would not be on the original document.         We unhesitatingly conclude that any alterations by
    Welch were done to a photocopy of the original deed of trust, not to the original document
    12
    itself. The trial court cited Holmes v. Ford, 
    179 Miss. 673
    , 
    176 So. 524
    (1937); and, Upton
    v. Bush, 
    141 Miss. 660
    , 
    107 So. 284
    (1926). In so doing, the trial court correctly
    distinguished these cases from the present case.            In Holmes and Upton, the actual original
    documents were altered by way of erasures of the names of the payees and insertions of the
    names of different payees/beneficiaries.        As the trial court correctly found in today’s case,
    Welch did not alter the 1990 original deed of trust, but instead altered a photocopy of the deed
    of trust and recorded the copy as a “corrected” deed of trust. Thus, the trial court also quite
    appropriately found that the original deed of trust remained in full force and effect.
    ¶14.    McKinley also claimed error in the trial court’s finding that he was in default,
    notwithstanding the $4,300 lump sum payment he made to Welch by way of a certified
    cashier’s check.    Again, we agree with both the trial court and the Court of Appeals in their
    findings that this lump sum payment did not cause McKinley to avoid being in default.
    McKinley admitted missing at least three monthly payments in the Spring of 2001, but he
    asserts that when he missed those monthly payments, Welch should have been required to
    “draw down” on this $4,300 lump sum payment, by way of crediting McKinley with these
    payments.6 Again, as correctly pointed out by the Court of Appeals, the record is totally devoid
    of any evidence of any such agreement by McKinley and Welch that this $4,300 lump sum
    payment would be used in this way. In fact, McKinley readily admitted that he and Welch never
    6
    Even though the record is inconsistent as to the number of payments McKinley missed in the Spring
    of 2001, in his sworn deposition testimony of June 11, 2002, McKinley admitted that he failed to make the
    monthly payments in March, April and May of 2001.
    13
    discussed any such agreement.       
    2004 WL 1662257
    , at *6, ¶¶ 29-30.             Indeed, the record
    reveals that at his deposition of June 11, 2002, McKinley was presented with a copy of the
    $4,300 cashiers check and then testified under oath that (1) he could not remember purchasing
    the check, though he stated that “undoubtedly I did;” (2) he had no recollection of paying the
    $4,300 to Welch; (3) he did not remember discussing any arrangement with Welch concerning
    the $4,300 “and if I say anything different I wouldn’t be telling the truth;” (4) he believed
    Welch used this check to pay on the note; (5) “[w]hat I feel like happened” was that “I”made
    this payment to Welch because Welch “[m]ore than likely come by and asked for it” because
    “[h]e might have had financial trouble;” and (6) he did not feel that he was behind on his note
    payments in the Spring of 2001 because the $4,300 “could have been used for payments.”7 Our
    independent review of the record thus causes us to reach the same conclusion as the Court of
    Appeals on the issue of McKinley’s default on the promissory note.
    ¶15.    Additionally, McKinley asserted that Deborah Graham’s affidavit, which was attached
    as an exhibit to Gunter’s motion for summary judgment, was inappropriately considered by the
    trial judge in granting summary judgment since Graham had not been revealed in pre-trial
    discovery as a potential witness, and since her affidavit contradicted Gunter’s deposition
    testimony. 
    Id. at *6, ¶
    31. On this issue, the Court of Appeals stated:
    A review of the trial judge’s opinion and order reveals that the judge did not rely
    solely on Graham’s affidavit in reaching a decision on the merits of the case.
    7
    McKinley also testified that other than the purchase of Welch’s house, he [McKinley] had never
    had any type of business relationship with Welch.
    14
    Further the trial judge found that there had not been a foreclosure, therefore
    Graham’s affidavit was immaterial.
    
    Id. at *7, ¶
    33.     Our thorough review of the trial judge’s opinion and order causes us to reach
    the same conclusion as the Court of Appeals – the trial judge obviously relied on the totality
    of the facts and circumstances laid out in the various pleadings and other documents before
    him, and he certainly did not rely solely on Graham’s affidavit.
    ¶16.     Accordingly, for these reasons, we find that McKinley’s assignments of error relating
    to Welch’s alteration of the deed of trust, McKinley’s default on the house note and deed of
    trust, and the trial court’s treatment of Deborah Graham’s affidavit are wholly without merit.
    ¶17.     Having reached this point, we now focus on the one assignment of error as advanced by
    McKinley which the Court of Appeals found to have merit. McKinley asserted that Welch’s
    1996 cancellation of the deed of trust became effective once Welch paid off his first loan to
    Lamar Bank in 1997.         The Court of Appeals succinctly set out McKinley’s claims on this
    issue:
    McKinley next claims that the debt on the deed of trust was fully satisfied when
    Welch had the deed of trust stamped “cancelled,” and the cancellation became
    effective when Welch paid off his first loan to Lamar Bank in 1997. McKinley
    argues that even if Welch did not have an interest in the deed of trust at the time
    of the attempted cancellation due to his first assignment to the bank, Welch
    regained his interest when he paid off the debt. McKinley maintains that at this
    point, the assignment terminated, and Welch was bound by his actions in
    canceling the deed of trust, thus making him [McKinley] the owner of the house,
    free and clear.
    
    Id. at *2, ¶
    12.
    ¶18.     The Court of Appeals stated:
    15
    McKinley’s complaint against Welch, Gunter, and Lamar Bank sought to recover
    damages for the wrongful initiation of foreclosure proceedings against his
    property.     His theories for recovery were extortion, conversion, libel and
    slander, and conspiracy. He also sought punitive damages. Whether he can
    recover under either of these theories depends upon whether there was a valid
    and justified initiation of foreclosure proceedings. We have determined that a
    genuine issue of material fact exists as to whether McKinley’s note had been
    paid in full at the time the foreclosure proceedings were initiated. On remand,
    McKinley shall bear the burden of proving that the note had in fact been paid in
    full prior to the initiation of foreclosure proceedings or if the note had not been
    paid in full, that he was not in default at the time foreclosure proceedings were
    initiated.
    We only hold here that the mere fact that the deed of trust had been assigned to
    Lamar Bank when the attempted cancellation occurred does not preclude a
    finding that the indebtedness had in fact been paid in full when the attempted
    cancellation occurred. Although the cancellation is certainly evidence that the
    indebtedness had been paid in full, that determination must be made by a jury.
    
    Id. at *7, ¶
    ¶ 35-36.
    ¶19.    While Gunter sets out five reasons for us to find that the Court of Appeals erred, we are
    firmly convinced that this case hinges for the most part on the issue of the effect of Welch’s
    May 23, 1995, assignment of the McKinley deed of trust to the Lamar Bank, which in turn
    affects the validity of Welch’s July 5, 1996, “cancellation” of the 1990 McKinley-to-Welch
    deed of trust.
    The provisions of the 1990 McKinley-to-Welch deed of trust state, inter alia:
    All the right (sic), powers, and privileges, of the said Beneficiary [Welch]
    hereunder shall vest in, inure to and be possessed by the heirs, legal
    representatives, successors, or assigns, as the case may be, of the said
    Beneficiary.
    The provisions of Welch’s May 23, 1995, assignment to the Lamar Bank state:
    ASSIGNMENT OF DEED OF TRUST
    16
    FOR AND IN CONSIDERATION of the sum of TEN DOLLARS ($10.00), cash
    in hand paid, and other good and valuable consideration, the receipt and
    sufficiency of which are hereby acknowledged, the undersigned JAMES S.
    WELCH, JR., does hereby convey, transfer, set-over and assign with recourse
    to THE LAMAR BANK, all his or her (sic) right, title and interest in and to that
    certain promissory note indebtedness and deed of trust securing same executed
    on May 25, 1990 by Jerald D. McKinley, Sr. and wife, Minnie F. McKinley, to
    Penny Jones Alexander, Trustee in favor of James S. Welch, Jr., which said deed
    of trust is recorded in Book 734 at Page 432 and which was re-recorded in Book
    877 at Page 106 of the Land Deed of Trust Records of Forrest County,
    Mississippi.8
    The language of this assignment is general and unqualified. We have previously addressed the
    validity and effect of assignments of deeds of trust. In EB, Inc. v. Allen, 
    722 So. 2d 555
    , 564
    (Miss. 1998), we stated:
    “Generally, the intention of the parties ascertained from the entire transaction,
    including conduct, determines whether the assignment is absolute or intended
    only as a collateral security.” International Harvester Co. v. Peoples Bank &
    Trust Co., 
    402 So. 2d 856
    , 861 (Miss. 1981) (quoting 6A C.J.S. Assignments
    Section 82, page 732). “[A] valid assignment of a debt or contract conveys the
    entire interest of the assignor to the assignee, and thereafter the assignor has no
    interest therein.” International Harvester 
    Co., 402 So. 2d at 861
    . “As a general
    rule, a valid and unqualified assignment operates to transfer to the assignee all
    the right, title, or interest of the assignor in the thing assigned, but not to confer
    upon the assignee any greater right or interest than that possessed by the
    assignor.” 
    Id. at 861 (quoting
    6A C.J.S. Assignments, Section 73, pages 710-
    
    12). 722 So. 2d at 564
    .
    8
    The “re-recorded” deed of trust to which reference is made in this Assignment is the
    “corrected”deed of trust attempting to change the beneficiary from Welch to Hudson. As already discussed,
    this attempted change of beneficiary by way of altering and filing a photocopy of the original deed of trust,
    did not affect the validity of the original deed of trust. Additionally, it is clear that Hudson, by her actions,
    desired to convey any interest she had in the “corrected” deed of trust back to Welch prior to his assignment
    of the original of deed of trust to the Bank.
    17
    ¶20.    Thus, in today’s case, based on the unqualified language of the assignment, once Welch
    executed the assignment of the deed of trust to Lamar Bank on May 23, 1995, and once this
    assignment was filed of record, Welch had no further interest whatsoever in the promissory
    note and deed of trust executed by the McKinleys in his favor on May 25, 1990, and Welch’s
    “cancellation” of the deed of trust on July 5, 1996, was thus invalid and of no effect – Welch
    possessed nothing on which to act on July 5, 1996.9                Based on the record, the trial court
    correctly found that McKinley had not paid off the deed of trust and that McKinley was in
    default on the note and deed of trust. Even though McKinley claimed that his wife, prior to her
    death, told McKinley that the house note “was taken care of,” the record is devoid of any
    evidence that the note had been satisfied. As correctly noted by the trial court, even though
    McKinley interpreted his wife’s remarks to mean that the note had been satisfied, and even
    though this conversation occurred almost a year after Welch marked the deed of trust as “[p]aid
    in full, [s]atisfied and [c]ancelled,” McKinley continued making the monthly payments to
    Welch pursuant to the promissory note until March, 2001. Actions speak louder than words.
    McKinley’s statements of his belief as to the status of the promissory note as of June, 1997,
    when his wife purportedly made these comments to him, are belied by the record.                           Also,
    McKinley admitted missing three payments in the spring of 2001, because he believed Welch
    9
    McKinley asserts, alternatively, that even if Welch’s May 23, 1995 assignment to Lamar Bank
    effectively transferred all of Welch’s rights in the deed of trust to the Bank, Welch’s 1997 satisfaction of the
    original promissory note validated his 1996 cancellation of the deed of trust. In support of the position,
    McKinley relies on the “after-acquired title” doctrine. Without getting into a lengthy discussion of this
    doctrine, we find this doctrine to be wholly inapplicable to today’s case. See Walters v. Merchants &
    Manufacturers Bank of Ellisville, 
    218 Miss. 777
    , 
    67 So. 2d 714
    (1953). See also Buchanan v. Stinson,
    
    335 So. 2d 912
    , 913-14 (Miss. 1976); Crooker v. Hollingsworth, 
    210 Miss. 636
    , 
    46 So. 2d 541
    (1950).
    18
    had “slashed” his tires.      McKinley’s assertions that he believed that, notwithstanding his
    withholding of payments to Welch, he was not in default on the note because he had paid Welch
    a $4,300 “cushion” from which to deduct any missed payments are again belied by the record.
    In fact, McKinley admitted that he and Welch never discussed any such arrangement. Thus, the
    Court of Appeals erred when it concluded that there were genuine issues of material fact as to
    “whether McKinley’s note had been paid in full at the time the foreclosure proceedings were
    initiated” and “if the note had not been paid in full, [whether] he was not in default at the time
    foreclosure proceedings were initiated.” McKinley v. Lamar Bank, 
    2004 WL 1662257
    at *7,
    ¶ 35.
    ¶21.    Also, the Court of Appeals found that, as to Gunter and the Bank, “[o]rdinary diligence
    on their part would have revealed a recorded cancellation of the deed of trust, and thus should
    have led them to inquire as to whether the debt had actually been satisfied.”   
    Id. at *5, ¶
    25.
    However, the record bears out the fact that Gunter and the Bank were aware of Welch’s
    purported cancellation of the deed of trust, and Gunter, as the attorney and substituted trustee,
    determined that the “cancellation” carried no adverse legal effect since Welch had previously
    assigned “all his....right, title, and interest” in the note and deed of trust to the Lamar Bank. In
    fact, Gunter testified via his deposition that he informed the Bank in his title opinion of the
    existence of Welch’s “cancellation” of the deed of trust and that notwithstanding Welch’s
    actions, the Bank still had a valid deed of trust on which to conduct a foreclosure. Likewise
    Gunter’s review of Welch’s receipt book caused Gunter to inform McKinley, upon inquiry, that
    it would take payment of the sum of $4,906.42 to stop the foreclosure.
    19
    ¶22.   Concerning the 2001 foreclosure, the trial court found, inter alia:
    The Court has found that Welch’s assignments in both 1995 and 1997 to Lamar
    Bank were valid. The Court has found McKinley knew he was in default on his
    mortgage. As discussed above, McKinley knew he was in default when he failed
    to make his monthly mortgage payment from March 2001 to May 2001. Since
    he has affirmatively stated he did not tell Welch to use the $4,300.00 payment
    as a “cushion,” should he miss a payment now and then, his argument that such
    is what he intended all along for Welch to do is of no import.          Further
    McKinley’s speculation that Minnie somehow paid the note off in 1996 is
    wholly unsupported and, in fact, is contradicted by his own testimony that he
    continued making the monthly mortgage payments from the time shortly before
    Minnie’s passing in 1997 when she made this statement up until February 2001.
    Therefore, the only remaining question is whether or not the foreclosure was
    carried out correctly under law.
    Gunter, as substituted trustee, had a duty under Mississippi law to conduct the
    foreclosure sale of the McKinley home in a manner most beneficial to
    McKinley. Rawlings v. Anderson, 
    149 Miss. 632
    , 
    115 So. 714
    (1928); Lake
    Hillsdale Estates, Inc. v. Galloway, 
    473 So. 2d 461
    (Miss. 1985). Gunter’s
    duties as substituted trustee would be satisfied where the sale is conducted in,
    “a commercially reasonable manner.” Wansley v. First National Bank, 
    566 So. 2d 1218
    , 1221 (1990). Gunter’s duties are subject to the power of sale
    provisions of Miss. Code Ann. § 89-1-55, § 89-1-57 and § 89-1-59. McKinley
    does not argue that Gunter did not properly conduct foreclosure proceedings
    under Mississippi law. Instead, McKinley argues that Gunter did not verify that
    McKinley was in default on his mortgage because Gunter did not speak directly
    to Welch, but rather had Welch speak with his secretary, Deborah Graham
    (“Graham”).
    Gunter instructed Graham to tell Welch to bring proof of McKinley’s default
    to his office, which he did. Graham then went to Lamar Bank and got the bank
    to sign the Appointment of Substituted Trustee, which was signed and recorded
    in Forrest County, Book 1138, Page 395, on April 17, 2001. Along with the
    proper notices Gunter ran in the Hattiesburg American newspaper, McKinley
    has admitted to having actual notice of the foreclosure proceedings and to being
    informed as to how much money he would have to pay to stop the foreclosure.
    Instead of paying this arrearage, McKinley ran to bankruptcy court, thus stopping
    the foreclosure proceedings and insuring that he could continue to reside in the
    home free of charge. Accordingly, Gunter complied with all his duties as
    20
    substituted trustee, including those duties to McKinley.        There was no wrongful
    foreclosure because there was never a foreclosure at all. 10
    (Emphasis in original).      As correctly noted by the trial court, “[t]here was no wrongful
    foreclosure because there was never a foreclosure at all.” This important fact cannot be
    over-emphasized.     Once McKinley received the stay of the foreclosure proceedings from the
    bankruptcy court, Gunter forever ceased any further efforts to foreclose on McKinley’s house
    and property.      Indeed, eleven days after receiving the stay in bankruptcy court, McKinley
    requested and received a dismissal of his bankruptcy petition, and continued living “free of
    charge” in his home until it was destroyed by fire in November, 2001.
    ¶23.    Based on these reasons, we find that the Court of Appeals erred in finding that there
    existed a genuine issue of material fact as to whether the indebtedness secured by the deed of
    trust had been paid off at the time of the commencement of the foreclosure proceedings.
    CONCLUSION
    ¶24.    The trial court meticulously considered the motions for summary judgment, and
    response in opposition to the motions. This is evident by the trial court’s detailed opinion and
    order which clearly addressed all the issues by reviewing the pleadings, discovery documents,
    affidavits, and all other documents submitted in support of, and in opposition to, the motions
    for summary judgment, and which correctly applied the law.             The Court of Appeals correctly
    decided all the issues before it, except one. For the reasons stated, the Court of Appeals erred
    in finding that there existed genuine issues of material fact as to whether McKinley’s
    10
    Upon making these findings, the trial court addressed McKinley’s claims of extortion, conversion,
    slander and libel, gross negligence or willful misconduct, conspiracy, and punitive damages, found each of
    these claims to be without merit, and granted summary judgment in favor of the Lamar Bank and Gunter.
    21
    promissory note had been paid in full at the time the foreclosure proceedings were initiated,
    or alternatively, that if the note had not been paid in full, whether McKinley was in default at
    the time foreclosure proceedings were initiated. In this vein, the Court of Appeals also erred
    in finding that there was a question of whether there was negligence on the part of the Bank
    and/or Gunter since there was a recorded cancellation of the deed of trust by Welch.
    ¶25.   Accordingly, we reverse the judgment of the Court of Appeals and reinstate and affirm
    the judgment of the Lamar County Circuit Court.
    ¶26. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE
    JUDGMENT OF THE LAMAR COUNTY CIRCUIT COURT IS REINSTATED AND
    AFFIRMED.
    SMITH, C.J., WALLER AND COBB, P.JJ., DICKINSON AND RANDOLPH, JJ.,
    CONCUR. EASLEY AND GRAVES, JJ., DISSENT WITHOUT SEPARATE WRITTEN
    OPINION. DIAZ, J., NOT PARTICIPATING.
    22