Albert John Chimento, Sr. v. Robert Albert Fuller and Gerald D. Mills, Sr.

Summary

The Mississippi Supreme Court considered whether Gerald D. Mills could recover proceeds from the court-ordered sale of property securing a $35,000 promissory note and deed of trust. The court held that Mills’s claim was barred by the statute of limitations because he did not initiate foreclosure, sue on the note, intervene, or otherwise take action to preserve his rights. The judgment was reversed and rendered in part and reversed and remanded in part.

Holdings

1. Mills's claim was barred by the statute of limitations because he took no action to foreclose on the deed of trust or sue on the note after the payment obligation became due.
2. The injunctions did not toll the statute of limitations for Mills because they concerned the $95,000 senior note and did not personally prohibit or restrain Mills from asserting his separate rights on the $35,000 note.
3. The note's language waiving lack of diligence or delays in collection did not waive the statute of limitations or excuse Mills from timely asserting his legal rights.
4. Chimento did not waive the statute-of-limitations defense because Mills filed no pleadings to which Chimento was required to respond, and Chimento asserted the defense during the proceedings before judgment.

Questions Presented

1. Whether Mills's claim on the $35,000 promissory note and deed of trust was barred by the applicable statute of limitations.
2. Whether the 1993 and 1997 injunctions concerning foreclosure of the $95,000 senior note tolled the statute of limitations for Mills's separate claim.
3. Whether the language in Mills's promissory note waived the statute of limitations or excused Mills from timely asserting his legal rights.
4. Whether Chimento waived the statute-of-limitations defense by failing to raise it earlier or by actively participating in the litigation.

Disposition

reversed_and_remanded