Mississippi Nonjudicial Foreclosure: Clerk-Signed Courthouse Posting Evidence and No Statutory Duty to Accept Partial Reinstatement Payments Under § 89-1-59

I. Introduction

In Snell v. 21st Mortgage Corporation (5th Cir. Sept. 4, 2026) (per curiam) (unpublished), Curtis G. Snell, Sr. and Tywanic L. Snell (collectively, “Snell”) challenged a completed Mississippi nonjudicial foreclosure conducted by 21st Mortgage Corporation (“21st Mortgage”) under a deed of trust securing a promissory note for a mobile home and related real property in Oktibbeha County, Mississippi.

Snell sought to set aside the foreclosure sale primarily on two theories: (1) alleged noncompliance with Mississippi’s statutory foreclosure-sale notice posting requirement, and (2) alleged improper refusal to accept Snell’s payments to cure default and reinstate the loan. The district court granted summary judgment to 21st Mortgage, and the Fifth Circuit affirmed.

II. Summary of the Opinion

The Fifth Circuit affirmed summary judgment for 21st Mortgage, holding that Snell failed to raise a triable fact issue on statutory notice posting under Miss. Code Ann. § 89-1-55 and that, under Mississippi law, Miss. Code Ann. § 89-1-59 does not require a lender to accept partial payments that do not cure default. The court also agreed with the district court that the record evidence (including a clerk-signed and dated notice) supported compliance with statutory notice requirements and that unsupported allegations cannot defeat summary judgment.

III. Analysis

A. Precedents Cited

  • Dediol v. Best Chevrolet, 655 F.3d 435, 439 (5th Cir. 2011)
    Cited for the standard of review: summary judgment is reviewed de novo, with evidence viewed in the light most favorable to the nonmovant. This frames the appellate lens and underscores that Snell needed competent evidence creating a genuine dispute of material fact.
  • Crawford v. Formosa Plastics Corp., 234 F.3d 899, 902 (5th Cir. 2000) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986))
    Cited for what qualifies as a “genuine dispute” of “material fact”—i.e., whether the evidence would permit a reasonable jury to return a verdict for the nonmovant. The court relied on this standard to reject Snell’s notice-posting challenge where Snell offered no substantiating evidence.
  • Flowers v. Wal-Mart Inc., 79 F.4th 449, 452 (5th Cir. 2023)
    Cited for the rule that “mere unsupported allegations” do not create a genuine issue of material fact. This precedent was central to the court’s rejection of Snell’s argument that the courthouse posting did not occur, where the record contained a signed and dated notice but Snell offered only assertion.
  • Weems v. Transamerica Mortgage Co., 770 So. 2d 936, 937-39 (Miss. 2000)
    The pivotal state-law authority on Mississippi’s reinstatement statute, Miss. Code Ann. § 89-1-59. The Fifth Circuit adopted the district court’s reading of Weems: § 89-1-59 does not obligate a lender to accept partial payments that do not bring the loan current (i.e., do not cure default as required for reinstatement).

B. Legal Reasoning

1. Statutory Notice Posting Under Miss. Code Ann. § 89-1-55

Snell argued there was a fact dispute as to whether the notice of sale was “posted at the courthouse” for the required time. The Fifth Circuit pointed to record evidence: the Substituted Trustee’s Notice of Sale “was signed and dated by” the Oktibbeha County Chancery Court Land Records Clerk (dated April 9, 2024). The court treated that document as evidence supporting compliance with the statute’s posting requirement.

Two additional procedural/evidentiary moves are important:

  • Abandonment in summary-judgment briefing. The court agreed with the district court that Snell “abandoned this claim by failing to address it on summary judgment.” Practically, this signals that even potentially viable statutory-compliance theories must be preserved and developed at the summary-judgment stage.
  • No genuine dispute without evidence. Even setting abandonment aside, the court held that “mere unsupported allegations” cannot defeat summary judgment. Without affidavits, deposition testimony, admissions, or other competent proof contradicting posting, Snell could not manufacture a trial issue.

2. Reinstatement/Cure Payments Under Miss. Code Ann. § 89-1-59

Snell contended 21st Mortgage “improperly failed to apply the payments toward the balance owed,” asserting that § 89-1-59 does not require the cure amount to be tendered in a single payment. The Fifth Circuit rejected the argument based on Mississippi Supreme Court authority and the contract terms.

The court’s reasoning proceeds in three steps:

  1. Statutory framework. The court quoted § 89-1-59’s reinstatement mechanism: a debtor may stop a threatened sale by “paying the amount of the note or installment then due or past due,” with specified costs/fees, “rather than the amount accelerated,” thereby reinstating the loan “according to the terms of such instrument.”
  2. Controlling state precedent. Relying on Weems v. Transamerica Mortgage Co., 770 So. 2d 936, 937-39 (Miss. 2000), the court accepted the proposition that § 89-1-59 “does not require a lender to accept partial payments.” Snell tried to distinguish Weems by emphasizing that Snell made “several payments that were all rejected.” The Fifth Circuit found the distinction immaterial: multiple partial tenders do not become a legal cure when each tender is insufficient at the time made, and the court declined to “aggregate” payments hypothetically where “there is no indication” Snell would have paid the full cure amount had earlier partial checks been accepted.
  3. Contract overlay. The Fifth Circuit also noted (as did the district court) that the deed of trust “allowed the lender to return partial payments insufficient to bring the loan current.” This reinforces that § 89-1-59 operates “according to the terms” of the security instrument, and that lenders may rely on express partial-payment-return provisions in resisting statutory-reinstatement arguments.

C. Impact

Although unpublished and therefore limited as precedent under circuit rules, the decision is instructive for Mississippi foreclosure litigation in federal court:

  • Notice challenges require evidence, not suspicion. A clerk-signed and dated notice in the record can be sufficient to support statutory compliance at summary judgment absent countervailing proof. Borrowers disputing courthouse posting should expect to need admissible evidence (e.g., affidavits from courthouse personnel, contemporaneous photographs, records-request responses, or deposition testimony) to create a triable issue.
  • Preservation matters at summary judgment. The court’s “abandonment” discussion highlights that litigants must meaningfully brief and support each theory when summary judgment is joined; otherwise, even statutory claims may be treated as forfeited in practice.
  • No lender duty to accept partial cure payments under § 89-1-59. By reaffirming Weems, the Fifth Circuit signals that borrowers cannot compel lenders to accept partial tenders as “reinstatement” when the default is not cured, especially where the deed of trust authorizes return of partial payments.
  • Deed-of-trust drafting remains consequential. The explicit reliance on the deed-of-trust partial-payment clause suggests that foreclosure outcomes may turn not only on statutes but also on carefully drafted payment-application and partial-payment provisions.

IV. Complex Concepts Simplified

  • Summary judgment: A pretrial ruling where the court decides the case if there is no real dispute about important facts and the law favors one side. The nonmoving party must respond with evidence, not just argument.
  • Genuine dispute of material fact: A disagreement over facts that would matter to the outcome and that a reasonable jury could resolve for the nonmovant based on the evidence.
  • Nonjudicial foreclosure (deed of trust sale): A foreclosure conducted by a trustee under a power-of-sale clause, without a full court foreclosure trial, but only if statutory notice steps are satisfied.
  • Posting and publication notice (Miss. Code Ann. § 89-1-55): Mississippi requires a foreclosure sale to be advertised for three consecutive weeks in a qualifying newspaper and to post a notice at the courthouse for that period; failure can invalidate the sale.
  • Reinstatement/cure (Miss. Code Ann. § 89-1-59): A borrower may stop a threatened sale by paying the past-due amounts (plus specified fees/costs) rather than the entire accelerated balance—but, under Weems as applied here, the lender need not accept partial payments that do not cure the default.
  • Acceleration: A contractual remedy allowing a lender, after default, to declare the entire remaining loan balance immediately due. Reinstatement statutes often allow borrowers to “de-accelerate” by curing the delinquency instead.
  • Abandonment (in briefing): When a party fails to pursue or develop a claim at the decisive stage (here, summary judgment), a court may treat the claim as given up.

V. Conclusion

Snell v. 21st Mortgage Corporation reinforces two practical rules in Mississippi deed-of-trust foreclosures litigated on summary judgment: (1) statutory notice-posting challenges under Miss. Code Ann. § 89-1-55 require competent evidence to create a genuine factual dispute—unsupported allegations will not suffice; and (2) under Weems v. Transamerica Mortgage Co., 770 So. 2d 936, 937-39 (Miss. 2000), Miss. Code Ann. § 89-1-59 does not compel lenders to accept partial payments that fail to cure default, particularly where the deed of trust authorizes returning partial payments. In effect, the opinion underscores that foreclosure defenses must be both evidentiary and timely developed, and that Mississippi’s statutory protections operate within—and not against—the payment terms of the security instrument.