IN THE SUPREME COURT OF MISSISSIPPI

HOLLY SPRINGS REALTY GROUP, LLC APPELLANT

v. CAUSE NO.2009-CA-00923

BANCORPSOUTH BANK; NORMA S. BOURDEAUX;

LANGSTON OXFORD PROPERTIES, L.P., a
Mississippi Limited Partnership; SUSAN M. BRYAN;
LYNN M. GRENFELL and JOHN ALBRITON APPELLEES

ON APPEAL FROM THE CHANCERY COURT OF LAFAYETTE COUNTY

CAUSE NO. 2007-504A

MOTION FOR REHEARING

FRANK M. HURDLE, MSB# 9709

P.O. BOX 2777
OXFORD, MS 38655
662-236-7800

ATTORNEY FOR APPELLANT

 Table of Authorities

Cases

B & W Farms v. Miss. Trans. Comm., 922 So.2d 857 (Miss Ct. App. 2006) . . . . . . . . . . . . . . 2

Statutes

M.R.C.P. 8(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
IN THE SUPREME COURT OF MISSISSIPPI

HOLLY SPRINGS REALTY GROUP, LLC APPELLANT

v. CAUSE NO.2009-CA-00923

BANCORPSOUTH BANK; NORMA S. BOURDEAUX;

LANGSTON OXFORD PROPERTIES, L.P., a
Mississippi Limited Partnership; SUSAN M. BRYAN;
LYNN M. GRENFELL and JOHN ALBRITON APPELLEES

MOTION FOR REHEARING

Comes now Appellant Holly Springs Realty Group, through counsel, and

respectfully moves the Court of Appeals of the State of Mississippi to rehear and

amend or vacate its Decision handing down in this case November 9, 2010. In support

of same, Appellant would show as follows:

I. DUE PROCESS CLAIMS

In Deciding Appellants Due process claims, the Court based its decision on the

fact that Appellant had submitted to the jurisdiction of the Court. This is undisputed,

freely admitted, and never subject to dispute. Appellant’s Due Process claims were

based on insufficiency of the Complaint. In addition, the Court’s Decision is based on

a factual error, in that the Petition to Join did not state that Plaintiff wished to

foreclose on Unit 309, as the Court’s decision claimed, but rather on the “subject

property,” which logically included all of the property subject to the deed of trust (R-

141).

Page 1 of 9
 Appellant never argued that the Chancery Court lacked jurisdiction; rather it

argued that the complaint was so deficient that it failed to meet the minimum due

process requirements.

Certainly Appellant was aware that BancorpSouth sought to foreclose on the

“subject property,” which meant all of the property subject to the mortgage, not merely

Unit 309. Appellant maintains that a Plaintiff’s Complaint must stand on its own;

however, arguendo, a disinterested party cannot read the Petition to Join and the

Amended Complaint together and know that Plaintiff seeks any relief at all from Holly

Springs. Holly Springs is merely declared a “necessary and indispensable party” (R-

141) from whom no relief was requested; therefore the due process requirements were

not met.

Appellant freely submitted to the jurisdiction of the Court, in part because

Plaintiff chose to mislead its counsel about its secret agreement with the other five

defendants. This voluntary submission to jurisdiction did not absolve Plaintiff of the

need to serve Holly Springs with a properly drafted complaint stating all relevant facts

surrounding the case and the specific relief sought from Holly Springs.

Appellant raised the issue of failure to state a claim in its defense. But even if

it had not, such a defense may be raised at any time, including at trial, B & W Farms

v. Miss. Trans. Comm., 922 So.2d 857 (Miss Ct. App. 2006).

The Court of Appeals accepts BancorpSouth’s reason for having a deficient

complaint as being the fact that it did not know of Holly Springs’ ownership when it

brought suit. This is correct. But Plaintiff knew it had a duty to amend and it refused

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or neglected to do so. This is not Appellant’s fault and is not an acceptable excuse.

If this ruling should stand, it will act to substantially lessen the pleading

requirements that both this Court and the Mississippi Supreme Court have put into

place. Furthermore, Appellant does not believe it complies with federal due process

requirements.

II. COLLUSIVE AGREEMENTS

The fact that BancorpSouth and its counsel intentionally misled Appellant’s

counsel for legal advantage is uncontroverted and supported by the record.1 The

Chancery Court’s Order to Strike applied only to a objection made by the Five Other

Defendants, and centered in large part on Appellant’s counsel inadvertent use of the

word “illegal” rather than “unlawful.”

Throughout the proceedings, Holly Springs repeatedly objected to the fact that

BancorpSouth’s counsel had misled it when asked whether it knew why the Five Other

Defendants had not filed on an Answer. BancorpSouth never once challenged the

veracity of these claims, and the reason it did not do so is because they were true.

On November 21, 2008, Holly Springs filed a Motion for Summary Judgment

with the Court in which it detailed the affirmative steps taken by BancorpSouth and

its counsel to mislead Holly Springs in order to get Appellant to agree to sign an

Agreed Order and to agree to join the suit on terms favorable to Plaintiff. In this

motion, Holly Springs made numerous uncontroverted statements of fact, including the

1
Appellant believes BancorpSouth’s current counsel, John Crow, has at all times been honest and truthful
about all matters concerning this case.

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following:

During this time defendant’s counsel twice expressed concern to counsel for
BancorpSouth about the fact that the Five Other Owner defendants had not
filed an answer, and was not informed that the Five Other Owners were told
they did not have to file an answer.
(R-272)

BancorpSouth did not file a response to this Motion, although a responsive

pleading was required. Pursuant to M.R.C.P. 8(d), the above statement was

therefore admitted by BancorpSouth as true.

In its decision, the Court of Appeals cites the Motion to Strike sought by the

Five Other Owners based in large part on Holly Springs’ use of the word “illegal,”

which suggests criminality, rather than “unlawful,” which connotes tortiousness

(Paragraph 17). This motion involved the Five Other Owners’ response to a Request

for Admission, and did not involve the false information provided by BancorpSouth,

which was a matter of record and uncontroverted. (Appellant admits that it is

disappointed that the Court of Appeals would find this type of denial acceptable

when in fact the parties had received permission not to file an answer).

Finally, the Court said no “proof” of a Mary Cary-type agreement had been

provided by Appellant. “Without proof, these bare allegations must fail,” the Court

of Appeals said in its decision (Paragraph 19). Yet this is the exact opposite of the

standard for summary judgment. Instead, the non-moving parties bare allegations

are to be accepted in the light most favorable to the non-moving party, HeartSouth,

PLLC v. Boyd, 865 So.2d 1095, 1101.

Appellant does not believe reasonable minds should even be able to differ on

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this issue given that BancorpSouth never once said the claims were false. But the

fact remains that Mississippi Rules of Civil Procedure require that assertions in

motions which are not denied are true. Therefore it is uncontroverted and

uncontrovertable that BancorpSouth had a secret agreement with the Five Other

Defendants in which they were allowed not to file an Answer, and that Appellant

was misled by Plaintiff about the existence of this agreement for their legal

advantage.

Appellant hopes that the Court has not been caught up in the semantic

gamesmanship concerning whether or not the collusive agreement is an actual

Mary Carter-type agreement. It was collusive and designed to benefit certain

favored parties at the expense of others, and that is all that matters. It existed. It

was concealed. Appellant was induced to be more cooperative in negotiating the

Agreed Order and Petition to Join as a result of this concealment. See, for example,

BancorpSouth’s answer to Holly Springs’ interrogatories, where it denied any type

of agreement whatsoever (R279-280), and its answer to Holly Springs’s Request for

Admissions (R264-267), where it qualified its answer to admit behavior that

qualified as an agreement. Obviously there was concealment followed by admission.

A substantial number of Appellant’s claims have been rejected on the

grounds that there were only “bare allegations” of counsel of an agreement that

favored defendants need not file an answer, and the fact that Plaintiff actively

misled Holly Springs about this agreement. Holly Springs would ask the Court to

rehear each of these claims, on the grounds that it has both made an incorrect

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factual assumption and apparently employed the wrong legal standard.

III. APPELLANT’S REQUEST FOR DEFAULT JUDGMENT

The Court of Appeals apparently failed to address Appellant’s Issue Six,

which read as follows:

Did the chancellor err when he denied Appellant’s motion to enter a docket
entry of default against five Co-defendants who intentionally did not file an
answer in an in rem action for more than one year, when such failure was
apparently a matter of trial strategy?

Appellant will not address this issue further, except to remind the Court that

in a case such as this one, Appellant is really pitted against the other defendants,

not the lienholder. No one is suggesting that the bank does not have the right to

enforce its lien; the only question is whether the bank should first be required to

seek recovery from those who present no defense at all.

As a matter of public and judicial policy, do we really want to recognize the

right of defendants to refuse to file an answer as a matter of trial strategy? If one

defendant to an action is required to file an answer, shouldn’t all defendants be

required to do so?

IV. DID BREACH OF DUTY TO A SURETY VOID BANCORPSOUTH’S LIEN?

The Court of Appeals rejected Appellant’s ISSUE ELEVEN, on the grounds

that the argument was never put before the chancellor for decision (Paragraph 27).

In fact, this issue was included in Appellant’s Answer and Counterclaim (R-177), by

motion (R-275, request for relief 5) and was addressed in some detail in a

memorandum that Holly Springs filed with the Chancery Court (R-298, 330). Holly

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Springs’ motion was never heard as it allowed BancorpSouth to have its motion

heard first, thus rendering the issues in its motion moot, but the motion was

nevertheless before the Court.

Having called this information to the Court’s attention, Appellant will not

address it further.

V. TO WHOM AND FOR WHAT PURPOSE DID HOLLY SPRINGS’ STATUS

AS A TAX SALE PURCHASER APPLY?

In its decision, the Court of Appeals labeled Holly Springs’ deed a “tax title”

(Paragraph 10) and later said that the Chancellor was right to construe the law in

favor of the former “property owner.” (Paragraph 24). Yet the former property owner

was Van Buren Group, LLC, which did not contest the tax sale.

BancorpSouth was never a property owner. It was a mere lienholder. Once its

lien rights were recognized, it was required to treat and respect Holly Springs as any

other lienee. Thus Holly Springs’ insistence that BancorpSouth “stand quietly by”

while the Chancery Court determined an order of charging based on the Answers of the

defending property owners.

While Holly Springs did suggest that BancorpSouth engaged in activity which

it believed should have voided its lien, once that lien is recognized Holly Springs ceases

to hold a “tax deed.” Instead, it is just a landowner, owning a piece of land subject to

a lien, entitled to all of the rights of any other landholder.

V. APPELLANT’S INVERSE ORDER OF ALIENATION CLAIMS

AND PLAINTIFF’S DUTY TO “STAND QUIETLY BY”

Appellant would ask the Court to review its inverse order of alienation claims

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in light of the fact that two of the properties were aliened from Van Buren after title

had vested in Holly Springs.

The Court labeled as “incredible” Holly Springs’ claim that a Plaintiff in an

action to collect on a debt secured by property subject to a mortgage should stand

quietly by while the court determines the order of sale (Paragraph 13). Yet that view

is consistent with all of the Mississippi rulings in this area cited in Appellant’s original

brief.

Forcing a mortgagee to “stand quietly by” does then no harm. Once the suit to

foreclose the mortgage is filed, the outcome of the battle to determine order of sale

should be of no concern to them – they are paid no matter what. It is a matter instead

of determining the equities as between the defendants.

CONCLUSION

This case shouldn’t have been between BancorpSouth and Holly Springs. It

should have been between Holly Springs and the Five Defendants who didn’t file an

answer.

If this Court allows a lienholder to choose its victim in this case, won’t it be

obligated to in every case, including those not involving tax sale purchasers? If this

Court allows deficient complaints to be valid against tax sale defendants, won’t it be

obligated to allow them against all defendants?

Finally, does this Court really want plaintiffs to forge secret agreements with

defendants in equity cases and then work to misled non-favored defendants about

these agreements? When these agreements involve the intentional violation of the

Page 8 of 9
Mississippi Rules of Civil Procedure, such as not filing an Answer without good cause,

does the Court just want to turn a blind eye?

Holly Springs Realty Group is a “tax sale purchaser.” It is also a landowner. It

is also a corporate citizen of this state with due process rights.

BancorpSouth had a right to have its lien recognized and nothing more. It should

not have been given the right to discriminate against a corporate citizen of this state

merely because that citizen purchased its property at a tax sale.

WHEREFORE, PREMISES CONSIDERED, Appellant Holly Springs Realty

Group prays that this Honorable Court will rehear and amend or vacate its decision

of November 9, 2011 and grant the relief requested in Appellant’s original brief or such

other relief as the Court finds appropriate.

Respectfully submitted, this the 6th day of December, 2010.

HOLLY SPRINGS REALTY GROUP, LLC

By and through its attorney:

FRANK M. HURDLE
Mississippi Bar Number #9709

Frank M. Hurdle (MSB #9709)

P.O. Box 2777
Holly Springs, MS
662-236-7800
frankhurdle@hurdlelaw.com

Page 9 of 9
 APPENDIX
MISSISSIPPI RULES OF CIVIL PROCEDURE

Rule 8. GENERAL RULES OF PLEADING

(a) Claims for Relief. A pleading which sets forth a claim for relief, whether an original claim,
counter-claim, cross-claim, or third-party claim, shall contain

(1) a short and plain statement of the claim showing that the pleader is entitled to relief, and,

(2) a demand for judgment for the relief to which he deems himself entitled. Relief in the
alternative or of several different types may be demanded.

(b) Defenses: Form of Denials. A party shall state in short and plain terms his defenses to each
claim asserted and shall admit or deny the averments upon which the adverse party relies. If he is
without knowledge or information sufficient to form a belief as to the truth of an averment, he
shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the
averments denied. When a pleader intends in good faith to deny only a part or a qualification of
an averment, he shall specify so much of it as is true and material and shall deny only the
remainder. Unless the pleader intends in good faith to controvert all the averments of the
preceding pleading, he may make his denials as specific denials or designated averments or
paragraphs, or he may generally deny all the averments except such designated averments or
paragraphs as he expressly admits; but, when he does so intend to controvert all of its averments,
he may do so by general denial subject to the obligations set forth in Rule 11.

(c) Affirmative Defenses. In pleading to a preceding pleading, a party shall set forth
affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory
negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality,
injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute
of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.
When a party has mistakenly designated a defense as a counter-claim or a counter-claim as a
defense, the court on terms, if justice so requires, shall treat the pleading as if there had been
proper designation.

(d) Effect of Failure to Deny. Averments in a pleading to which a responsive pleading is

required, other than those as to the amount of damages, are admitted when not denied in the
responsive pleading. Averments in a pleading to which no responsive pleading is required or
permitted shall be taken as denied or avoided.

(e) Pleading to Be Concise and Direct: Consistency.

(1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of
pleading or motions are required.

(2) A party may set forth two or more statements of a claim or defense alternatively or
hypothetically, either in one count or defense or in separate counts or defenses. When two or
more statements are made in the alternative and one of them if made independently would be
sufficient, the pleading is not made insufficient by the insufficiency of one or more of the
alternative statements. A party may also state as many separate claims or defenses as he has,
regardless of consistency. All statements shall be made subject to the obligations set forth in
Rule 11.

(f) Construction of Pleadings. All pleadings shall be so construed as to do substantial justice.

(g) Pleadings Shall Not Be Read or Submitted. Pleadings shall not be carried by the jury into the
jury room when they retire to consider their verdict, except insofar as a pleading or portion
thereof has been admitted in evidence.

(h) Disclosure of Minority or Legal Disability. Every pleading or motion made by or on behalf of
a person under legal disability shall set forth such fact unless the fact of legal disability has been
disclosed in a prior pleading or motion in the same action or proceeding.