Full Opinion

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2024-CA-01118-COA BENNIE E. HARRIS APPELLANT v. AURORA LOAN SERVICES, A WHOLLY APPELLEES OWNED SUBSIDIARY OF NATIONSTAR MORTGAGE, LLC, NATIONSTAR MORTGAGE, LLC, A WHOLLY OWNED SUBSIDIARY OF NATIONSTAR MORTGAGE HOLDINGS, INC. D/B/A MR. COOPER, NS193, LLC, MORTGAGE ELECTRONIC REGISTRATION SYSTEM, INC., A WHOLLY OWNED SUBSIDIARY OF MERSCORP HOLDINGS D/B/A ICE MORTGAGE TECHNOLOGY, McCALLA RAYMER LEIBERT PIERCE, LLC AND STATEBRIDGE COMPANY, LLC DATE OF JUDGMENT: 04/01/2024 TRIAL JUDGE: HON. D. NEIL HARRIS SR. COURT FROM WHICH APPEALED: JACKSON COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: LEWIE G. “SKIP” NEGROTTO IV ATTORNEYS FOR APPELLEES: ARNOLD D. LEE STEVEN PRICE NIXON NATURE OF THE CASE: CIVIL - CONTRACT DISPOSITION: AFFIRMED - 06/23/2026 MOTION FOR REHEARING FILED: EN BANC. WILSON, P.J., FOR THE COURT: ¶1. In an amended complaint filed in the Jackson County Chancery Court, Bennie Harris alleged that the defendants wrongfully foreclosed on the Pascagoula property where he operated a used car lot. The chancery court granted the defendants’ motions for summary judgment on all of Harris’s claims, and Harris appealed. ¶2. We hold that Harris waived any claim to have the foreclosure sale and substitute trustee’s deed set aside when he deliberately dismissed the purchaser and owner of the property from the lawsuit. In addition, Harris waived any alleged failure to comply with contractual notice requirements found in the deed of trust because he failed to promptly object to the foreclosure sale and then failed to allege any defect in notice for over two years. Harris also fails to show any damages stemming from the alleged defect in notice. Moreover, Harris failed to present any significant and probative evidence to support his claim that his underlying debt was canceled; therefore, the chancery court did not err by finding that there is no genuine issue of material fact and that the defendants are entitled to judgment as a matter of law on that claim. Finally, Harris’s remaining claims are barred by the statute of limitations. Therefore, we affirm. FACTS AND PROCEDURAL HISTORY ¶3. In 1999, Harris executed a deed of trust encumbering two properties, a residential property in the Hilma Subdivision in Moss Point (“Parcel I”) and a commercial property on 14th Street in Pascagoula (“Parcel II”). Parcel II was a used car lot (Twin City Motors) Harris owned and operated. The deed of trust secured a United States Small Business Administration (SBA) note. In 2003, the SBA assigned the note and deed of trust to Mortgage Electronic Registration System Inc. (MERS). Harris later sold Parcel I, and MERS filed a partial release in 2004, releasing Parcel I from the deed of trust. In 2012, Nationstar Mortgage LLC (Nationstar) began servicing Harris’s note. In 2014, MERS assigned its interest in the note and deed of trust to Nationstar. The assignment erroneously included 2 aspects of the descriptions of both Parcel I and Parcel II, stating: “PARCEL I OF THE DEED OF TRUST, BEING LOT 15, HILMA SUBDIVISION . . . . Property is commonly known as: 4029 14th STREET, PASCAGOULA, MS.” However, since Parcel I had already been released, and the release had been filed of record, MERS had no remaining interest in Parcel I and could only assign its interest in Parcel II to Nationstar. ¶4. In 2013, Nationstar received notice that Harris’s property would be sold at a tax sale due to nonpayment of 2010 property taxes. Harris made the 2010 tax payment before the property was sold. However, by September 2013, Harris had been two or more months behind on his mortgage payments for a significant period of time. In addition, property taxes for 2011, 2012, and 2013 had not been paid. Harris alleges that Nationstar had collected escrow funds for property tax payments but failed to make the tax payments. Harris told Nationstar that he would make no further mortgage payments until the escrow dispute was resolved. True to his word, Harris never made another mortgage payment. ¶5. In October 2013, Nationstar mailed Harris a notice of default advising him of his right to cure the default and the consequences if he failed to do so, including acceleration of the debt and foreclosure. In December 2014, Nationstar sent Harris another letter informing him that he was 448 days behind on his note, that he needed to pay $19,062.18 to bring the note current, and that failure to bring the note current could result in foreclosure. The same day, Nationstar internally “charge[d] off” Harris’s debt. ¶6. In March 2015, Nationstar sent a mistakenly issued Internal Revenue Service (IRS) Form 1099-C to Harris that showed a debt of $15,719.43 had been discharged. 3 ¶7. In July 2015, Nationstar assigned the servicing of Harris’s note to Veripro Solutions Inc. for collection. Veripro sent Harris numerous letters concerning the debt and spoke to Harris by phone on several occasions. In June 2016, Nationstar informed Harris that the Form 1099-C sent to him the previous year “was issued in error” and that Nationstar had “retracted the reporting of the Form 1099C with the [IRS].” From 2016 to 2018, Veripro continued to offer Harris opportunities to pay off or bring his loan current for a reduced lump sum or monthly payments. However, Harris did not respond. Harris never made another payment on the mortgage after 2013. ¶8. In December 2019, Nationstar assigned its interest in the note and deed of trust to NS193 LLC. In October 2020, Veripro informed Harris that his mortgage had been assigned to Statebridge Company LLC for servicing. ¶9. In September 2021, the substitute trustee under the deed of trust published and posted notice for three consecutive weeks as required by Mississippi Code Annotated section 89-1- 55 (Rev. 2021). On September 23, 2021, I-10 Properties LLC purchased the property at a public foreclosure sale for $56,000, which was the highest bid for the property. Consistent with the published notice, the foreclosure sale was held just after 11 a.m. on the front steps of the Jackson County Courthouse.1 On October 1, 2021, the substitute trustee conveyed the property to I-10 by substitute trustee’s deed. 1 The sale must take place between the hours of 11 a.m. and 4 p.m. See Miss. Code Ann. § 11-5-99 (Rev. 2019). The published notice of sale stated that the property would be “offer[ed] for sale at public outcry and [sold] to the highest bidder for cash, within legal hours (being between the hours of 11:00 a.m. and 4:00 p.m.) at the front door of the Jackson County Courthouse.” This is standard language used in a notice of sale in Mississippi. See K.F. Boackle, Mississippi Real Estate Foreclosure Law §§ 3:9, 4:5, 7:8 (2d ed. Supp. 2025). 4 ¶10. Harris received actual notice of the foreclosure sale by mail and by reading the notice of the sale in the newspaper, which included contact information for the substitute trustee. However, Harris did not contact the substitute trustee prior to the sale or file suit to attempt to prevent the sale. Rather, Harris testified that he went to the Jackson County Courthouse around noon or 12:15 p.m. (“a little after lunch”) on September 23—after the sale was complete—and returned later in the day, but he “[n]ever found anyone at the steps.” ¶11. On October 19, 2021, Harris’s lawyer emailed Statebridge requesting information regarding Harris’s debt and the foreclosure. The lawyer asserted that Harris’s debt had previously been canceled, as shown in the Form 1099-C he received in March 2015. On November 5, 2021, Statebridge responded that the 1099-C was issued “in error and subsequently retracted.” ¶12. On November 16, 2021, I-10 filed an unlawful-entry-and-detainer complaint against Harris and Twin City Motors in the Jackson County County Court, seeking immediate possession of the property and the removal of Harris and Twin City Motors from the property. Harris and Twin City Motors filed an answer and counterclaim for injunctive relief. On March 3, 2022, the county court entered a judgment in favor of I-10, finding that I-10 was entitled to immediate possession of the property and that Harris and Twin City Motors were unlawfully withholding possession. The court stayed its judgment for 90 days subject to the condition that Harris pay $1,500 per month rent to I-10. Harris appealed to the circuit court; however, on September 13, 2023, the circuit court entered an agreed order dismissing the appeal and leaving in place the county court’s final judgment. 5 ¶13. Previously, on February 8, 2022, Harris had filed a complaint in the Jackson County Chancery Court. Harris alleged wrongful foreclosure and sought to set aside the trustee’s deed and to obtain money damages. Nationstar, NS193, I-10, Statebridge, and the substitute trustee (the law firm of McCalla Raymer Liebert Pierce LLC (“MRLP”)) were named as defendants. Harris asserted various causes of action and alleged that the foreclosure was wrongful because Nationstar had mishandled his escrow funds and subsequently canceled his debt. ¶14. The defendants all filed answers in chancery court denying Harris’s allegations, asserting affirmative defenses, and denying liability. I-10 also filed a motion to dismiss or for judgment on the pleadings, arguing that the complaint failed to state a claim against I-10 and that it was a good faith purchaser for value and without notice of Harris’s claims. Finally, I-10 filed a motion to transfer the case to circuit court. ¶15. After there was no action in the case for one year, the clerk filed a motion to dismiss for want of prosecution. Harris filed a response to the clerk’s motion and a motion for a scheduling order and trial date. Harris also filed a motion to file an amended complaint to add MERS and Aurora Loan Services, which previously serviced Harris’s note, as defendants. Harris’s proposed amended complaint did not name I-10 as a defendant. The defendants filed responses in opposition to Harris’s motions. ¶16. Harris filed a response to I-10’s motion to dismiss that stated, in part, “Harris admits he has no claim against I-10 and, as a result, he did not include I-10 in his Amended Complaint.” In the conclusion to his response, Harris again stated that I-10’s motion to 6 dismiss “should be granted because Harris has no claim against it.” However, Harris also continued to assert that because his debt had been canceled, “the substitute trustee’s deed transferred nothing to I-10.” ¶17. Following a hearing, the chancery court granted I-10’s motion to dismiss and dismissed Harris’s complaint as to I-10. The court also granted Harris’s motion to file an amended complaint and denied the motion to transfer the case to circuit court. ¶18. On September 11, 2023, Harris filed three successive amended complaints: an “Amended Complaint,” a “Corrected Amended Complaint,” and, finally, an “Amended Corrected Amended Complaint.” The “Corrected Amended Complaint” expressly disavowed any effort to set aside the trustee’s deed to I-10, stating: “Plaintiff seeks to obtain monetary damages from all Defendants for their behavior that caused damage to Plaintiff without seeking to set aside the trustee’s deed to I-10 . . . .” (Emphasis added). The Corrected Amended Complaint’s prayer for relief concluded: NOTE: This Corrected Amended Complaint is filed to clarify that Plaintiff seeks to have the subject foreclosure sale declared wrongful for the sole purpose of obtaining monetary damages against the defendants named herein and does not seek to void the trustee’s deed to I-10 which is why I-10 is not named as a defendant in the amended complaint. (Emphasis added). The Corrected Amended Complaint also stated, “Plaintiff does not seek to set aside the trustee’s deed to I-10, only monetary damages for wrongful foreclosure.” ¶19. In contrast, the “Amended Corrected Amended Complaint” filed later the same day did “seek[] to have the foreclosure sale voided” and to have the “trustee’s deed . . . set aside.” In addition, a new concluding “NOTE” in the Amended Corrected Amended Complaint’s 7 prayer for relief stated as follows: NOTE: Plaintiff filed earlier today an Amended Complaint [DOC 44]. Plaintiff then filed his Corrected Amended Complaint which shows up on MEC Plaintiff’s Amended Amended Complaint [DOC 45]. Plaintiff seeks to withdraw the Corrected Amended Complaint [DOC 45] and replace it with this Amended Corrected Amended Complaint. Although the Amended Corrected Amended Complaint purported to seek to set aside the foreclosure sale and trustee’s deed, it still did not name I-10—the foreclosure purchaser, grantee under the substitute trustee’s deed, and new record owner of the property—as a defendant. In addition, although Harris had moved for leave to amend his complaint at least in part to add MERS and Aurora Loan Services as defendants, the record does not show that Harris ever obtained a summons for either of them.2 ¶20. The defendants that Harris served with process—Nationstar, NS193, Statebridge, and MRLP—did not object to Harris’s filing three amended complaints and simply answered the last-filed Amended Corrected Amended Complaint.3 The defendants subsequently filed separate motions for summary judgment.4 ¶21. The chancery court granted the defendants’ motions for summary judgment. The court noted that Harris had dismissed the foreclosure sale purchaser (I-10) from the case and 2 See Howard v. Rolin Enters. LLC, 224 So. 3d 1264, 1267 (¶7) (Miss. Ct. App. 2017) (holding that a defendant that is named in a complaint but never served with process is not a party to the action and may be disregarded for purposes of appeal). 3 But see Meeks v. Hologic Inc., 179 So. 3d 1127, 1131-34 (¶¶11-22) (Miss. 2015) (holding that a plaintiff who obtains permission or consent to file an amended complaint cannot thereafter file additional amended complaints without permission or consent). 4 NS193, Statebridge, and MRLP are represented by the same counsel and filed separate but substantially similar summary judgment motions. 8 “no longer seeks to set aside or unwind the foreclosure sale, but rather, now seeks only damages for wrongful foreclosure and potentially other wrongs related to the foreclosure and/or the servicing of the loan.” The court further noted that the “crux” of Harris’s claim was that Nationstar “forgave” his debt when it sent him a Form 1099-C in 2015 and therefore had no right to foreclose on the property. However, the court stated that the issuance of “a [Form] 1099-C does not, by itself, fully forgive or cancel a loan.” Here, Nationstar did nothing more than “issue . . . and then retract” the Form 1099-C, and Harris presented no other evidence to create a genuine issue of fact on that question. ¶22. The court further concluded that the undisputed facts showed that Harris refused to make mortgage payments and defaulted on his note, that Nationstar pursued foreclosure and gave notice of the foreclosure sale, that Harris had actual advance notice of the sale, and that Harris nonetheless “did not take any legal action to object to or stop the foreclosure before, during, or after the sale.” Citing, inter alia, Pagador v. Trustmark National Bank, 225 So. 3d 571, 576 (¶¶16-17) (Miss. Ct. App. 2017), the chancery court concluded that Harris’s failure to object or take legal action to stop the foreclosure “waive[d] all objections or claims to challenge the foreclosure.” Therefore, the court granted the motions for summary judgment filed by Nationstar, NS193, Statebridge, and MRLP and subsequently entered a final judgment dismissing all claims against them with prejudice. ¶23. Harris filed a motion to alter or amend the judgment pursuant to Mississippi Rule of Civil Procedure 59(e), in which he argued that the substitute trustee’s deed was void because the foreclosure sale did not comply with the contractual notice requirements in his deed of 9 trust, although it did comply with the statutory notice requirements found in Mississippi Code Annotated section 89-1-55. Specifically, the notice of sale was published for three weeks (twenty-one days) as required by the statute, but not for four weeks (twenty-eight days) as required by the deed of trust. In response, the defendants argued that the chancery court had already rejected Harris’s argument when it found that Harris waived the alleged defect by failing to promptly object or seek to set aside the foreclosure sale. The chancery court denied Harris’s motion, and Harris filed a notice of appeal. ANALYSIS I. Harris waived any right to have the foreclosure sale or trustee’s deed set aside. ¶24. It is unclear at this point whether Harris still seeks to set aside the trustee’s deed. As discussed above, Harris filed a motion to amend his original complaint for the specific purpose of dismissing I-10—the grantee under the trustee’s deed—as a defendant. In moving to amend his complaint, Harris conceded that he had no claim against I-10. Further, after Harris’s motion to amend was granted, Harris filed a “Corrected Amended Complaint” in which he expressly disclaimed any claim to set aside the trustee’s deed and clearly stated that he was not seeking to set aside the trustee’s deed. But later the same day, Harris filed an “Amended Corrected Amended Complaint” in which he reasserted that the trustee’s deed should be set aside. See supra ¶¶17-19. ¶25. Regardless of what Harris may or may not have intended, by voluntarily dismissing his claims against I-10, he waived any claim to have the trustee’s deed set aside. A grantee is clearly a necessary party to an action to set aside a deed. Murray v. Murray, 358 So. 2d 10 723, 725 (Miss. 1978) (“A grantee is a necessary party in an action to set aside a fraudulent conveyance.”); Aldridge v. Aldridge, 527 So. 2d 96, 98 (Miss. 1988) (holding that purchasers of a property were necessary parties in an action to impose a lien against the property); see also, e.g., Evans v. Fam. Sav. & Loan Ass’n of Va., 481 A.2d 1309, 1310 (D.C. 1984) (holding that the court could not “set aside the foreclosure sale because the purchaser [was] not a party to the[] proceedings”); Reid v. Reid, 272 S.E.2d 685, 685 (Ga. 1980) (“In an action for cancellation of a deed, the grantor and grantee are indispensible parties. This rule of law applies to actions seeking to cancel quitclaim deeds.” (citation omitted)); Aurea Aspasia Corp. v. Crosby, 120 N.E.2d 759, 761 (Mass. 1954) (holding that a foreclosure sale purchaser is a necessary party in an action to set aside the sale); In re Foreclosure of a Lien by Hunters Creek Townhouse Homeowners Ass’n Inc., 683 S.E.2d 450, 453 (N.C. Ct. App. 2009) (same). ¶26. “Here, [Harris] knowingly sought to amend the initial complaint to remove [I-10] in its entirety from the lawsuit. This deliberate decision had consequences.” Crawford ex rel. Hodge v. E. Miss. State Hosp. Inc., 397 So. 3d 871, 881 (¶30) (Miss. Ct. App. 2024), cert. denied, 397 So. 3d 498 (Miss. 2024). I-10 was the purchaser at the foreclosure sale, the grantee under the trustee’s deed, and the record owner of the subject property. Clearly, I-10 was a necessary party to any action to set aside the foreclosure sale and trustee’s deed. By deliberately dismissing I-10 from this lawsuit, Harris waived any right to have the foreclosure sale and trustee’s deed set aside. II. Harris waived any claim based on an alleged breach of the contractual notice requirement. 11 ¶27. “Mississippi is a non-judicial foreclosure state.” Soffra v. Shieldsboro Dev. Inc., 314 So. 3d 129, 140 (¶40) (Miss. Ct. App. 2020) (quoting Blanchard v. Mize, 186 So. 3d 403, 406 (¶13) (Miss. Ct. App. 2016)). “As such, Mississippi law does not require the mortgagee to directly notify the mortgagor of an impending foreclosure.” Id. (quoting Blanchard, 186 So. 3d at 406 (¶13)). “By statute, a sale under a deed of trust only requires notice by publication and by posting at the county courthouse.” Id.; see Miss. Code Ann. § 89-1-55. ¶28. Under Mississippi law, notice that land will be sold under a deed of trust must be published and posted for three consecutive weeks preceding the sale. Miss. Code Ann. § 89- 1-55. In this case, the substitute trustee complied with the notice requirements of section 89- 1-55 by publishing and posting the notice of sale for three consecutive weeks prior to the sale. Indeed, Harris admitted that he saw the notice in the newspaper. ¶29. However, “the parties to the deed of trust may contract for more notice than required by statute.” Soffra, 314 So. 3d at 140 (¶41) (quoting K.F. Boackle, Mississippi Real Estate Foreclosure Law § 3:11 (2d ed. Supp. Sept. 2020)); see also EB Inc. v. Allen, 722 So. 2d 555, 561 (¶21) (Miss. 1998) (“[A]ny requirements beyond those expressed in the applicable statutes are determined by the provisions of the note and deed of trust.”). “If a deed of trust ‘requires more’ notice than the statute, ‘then the terms of the deed of trust as to notice must be followed and complied with in accordance with the contract of the parties.’” Soffra, 314 So. 3d at 140 (¶41) (brackets and ellipsis omitted) (quoting Wilczinski v. Watson, 110 Miss. 86, 94, 69 So. 1009, 1010 (1915)). ¶30. Here, the deed of trust required one more week of notice by publication than the 12 statute. Specifically, the deed of trust provided that the trustee would give “four weeks’ notice” of the sale in a newspaper published or distributed in the county in which the property was located. The substitute trustee did not publish the notice for four weeks prior to the sale, as required by the deed of trust. ¶31. However, Harris did not object to the September 23, 2021 foreclosure sale prior to the sale based on any alleged defect in the notice. Indeed, Harris did not object even though he acknowledged that he had actual notice of the date and location of the sale and was represented by counsel at the time. One month later, Harris’s attorney emailed Statebridge requesting information about the foreclosure and underlying debt, but he did not allege any deficiency in the notice of the foreclosure sale. In February 2022, Harris filed suit alleging a wrongful foreclosure. Harris’s complaint alleged that the underlying note had been canceled and that Nationstar had mishandled Harris’s escrow funds and tax payments years earlier; however, the complaint still did not allege any deficiency in the notice of the foreclosure sale. In September 2023, Harris filed three successive amended complaints, yet Harris still did not allege any deficiency in the notice of the foreclosure sale. The first time that Harris raised the contractual notice requirement was in October 2023 in a response to the defendants’ motions for summary judgment. ¶32. The defendants argue that Harris waived this issue by failing to timely object to the foreclosure. In Robinson v. Trustmark National Bank, 179 So. 3d 1146 (Miss. Ct. App. 2015), cert. denied, 181 So. 3d 1010 (Miss. 2016), cert. denied, 580 U.S. 844 (2016), Trustmark conducted a foreclosure sale, and eleven months later, the debtor (Robinson) filed 13 suit to set aside the sale, alleging that the sale was improperly conducted and tainted by fraud. Id. at 1148-49 (¶¶4-5, 11). However, this Court stated that “[t]he general rule is that any person who is present and fails to object to the manner in which the [foreclosure] sale is made cannot subsequently have the sale set aside on the ground that it should have been conducted in a different manner.” Id. at 1149 (¶13) (quoting Nichols v. Bush, 913 So. 2d 387, 391 (¶21) (Miss. Ct. App. 2005)). We noted that there was “no dispute that Robinson received notice of the foreclosure sale,” but she “failed to respond or acknowledge the foreclosure proceedings before, during, or immediately after the sale.” Id. at (¶14). Indeed, just as in this case, “the first pleadings filed by Robinson were pleadings to stop [an] unlawful detainer [action] and to get a restraining order; Robinson did not challenge the sale itself.” Id. Robinson also argued that because she filed her wrongful foreclosure complaint “well within the statute of limitations,” we should consider it “to be filed ‘immediately’ after the sale.” Id. But this Court disagreed, reasoning that “Robinson waited to file the complaint to get the foreclosure set aside.” Id. We held that a debtor “with notice of a foreclosure sale” “waives his grounds for challenging the sale” if he “does not object before, during, or immediately after the sale.” Id. at 1150 (¶16). ¶33. Similarly, in Pagador v. Trustmark National Bank, 225 So. 3d 571 (Miss. Ct. App. 2017), the debtor filed a wrongful foreclosure suit after failing to object to the foreclosure sale before, during, or immediately after the sale. Id. at 576 (¶¶16-17). The lead opinion concluded that the debtor had waived his objections to the foreclosure sale, reaffirming that when a debtor fails to object to the sale, “he has waived any ground to challenge the 14 foreclosure.” Id. at (¶16). The lead opinion further stated that this rule applied equally whether the debtor sought to have the sale set aside or damages only. Id. at (¶17) (citing Robinson, 179 So. 3d at 1150 (¶19)). A specially concurring opinion argued that the debtor waived the right to have the sale set aside, but not a claim for damages for wrongful foreclosure. Id. at 577-78 (¶¶19-22) (Barnes, J., specially concurring).5 ¶34. Here, despite having notice of the foreclosure sale, Harris waited over four months after the sale to file suit challenging the foreclosure. Even then, Harris did not allege any deficiency in the notice of the sale or failure to comply with contractual notice requirements. It was not until October 2023—more than two years after the foreclosure sale—that Harris first alleged a breach of the deed of trust’s notice requirement. Under this Court’s decisions in Nichols, Robinson, and Pagador, we conclude that Harris waived any challenge to the sale based on an alleged failure to comply with a contractual notice requirement.6 5 Eight judges participated in Pagador. Chief Judge Lee authored the lead opinion, which three judges joined in full, two joined in part and in result, and one joined in result only. One judge joined Judge Barnes’s separate opinion. 6 Harris relies heavily on this Court’s decision in Soffra, which affirmed a chancellor’s ruling that a trustee’s deed was void because the trustee failed to comply with a contractual notice requirement. See Soffra, 314 So. 3d at 140-41 (¶¶39-44). However, in Soffra, there were a myriad of disputes of fact as to whether the plaintiff was even in default; the plaintiff made repeated attempts to cure the alleged defaults; the plaintiff denied that she had ever received personal service of notice of the foreclosure sale, as required by the parties’ deed of trust; the plaintiff filed suit to set aside the trustee’s deed within three months of the foreclosure sale; and the purchaser at the foreclosure sale was the creditor and beneficiary of the deed of trust, not a third-party, good-faith purchaser for value. See id. at 133-35, 137, 140-41 (¶¶3-13, 24-26, 39-44). In Soffra, there was no factual basis for an argument that the debtor waived her objection to the defective notice, and the defendant made no such argument on appeal. Indeed, we noted that the defendant “completely fail[ed] to address the chancellor’s finding that the foreclosure was conducted without proper notice.” Id. at 140 (¶39). Thus, the material facts in Soffra were substantially different from 15 ¶35. We also conclude that even if Harris’s waiver did not extend to a claim for damages, there is simply no evidence in the record or basis for a claim for damages based on a breach of the contractual notice requirement. By the time of the foreclosure sale, Harris had steadfastly refused to make any mortgage payments for approximately eight years, and despite receiving actual notice of the foreclosure sale, he remained unwilling to cure the default or avoid foreclosure. Accordingly, there is no basis for any claim of damages based on the substitute trustee’s failure to publish notice for one additional week. III. The chancery court correctly ruled that there were no genuine issues of material fact and that defendants were entitled to summary judgment on Harris’s claim that his debt had been canceled. ¶36. Harris argues that the chancery court erred by granting summary judgment because Nationstar canceled the underlying debt in 2014 when it issued an IRS Form 1099-C. Several other courts have addressed similar arguments. ¶37. The United States Court of Appeals for the Fourth Circuit explained that the IRS regulation that requires creditors to file Form 1099-Cs “lists eight ‘identifiable events’ that trigger the reporting obligation.” F.D.I.C. v. Cashion, 720 F.3d 169, 178 (4th Cir. 2013) (citing 26 C.F.R. § 1.6050P-1). In certain circumstances, “the plain language of the regulation” will require a creditor . . . to file a Form 1099-C even though an actual discharge of indebtedness has not yet occurred or is not contemplated. Moreover, the identifiable event triggering the obligation may not involve an actual discharge of the debt; rather, the event may be deemed to constitute a ‘discharge’ ‘solely for purposes of’ determining the Form 1099-C reporting obligation. the present case, and no issue of waiver was raised or decided in Soffra. 16 Id. at 178-79 (brackets omitted). Thus, based on “[t]he plain language of the regulation,” the court “conclude[d] that filing a Form 1099-C is a creditor’s required means of satisfying a reporting obligation to the IRS; it is not a means of accomplishing an actual discharge of debt, nor is it required only where an actual discharge has already occurred.” Id. at 179. The court also noted that the IRS had “clearly expressed” this understanding of the regulation in prior information letters. Id. The court concluded that because a creditor may be required to file the form “even where a debt has not been cancelled,” and because the form is intended to serve as “a reporting mechanism to the IRS,” not a “means of effectuating the discharge of a debt,” the form was not “in and of itself” sufficient to survive summary judgment on a claim that a debt had been canceled. Id. at 180. Rather, to create a genuine issue of fact, a debtor must come forward with some other evidence that the creditor in fact canceled the debt. Id. at 180-81; accord, e.g., Gericke v. Truist, No. 21-1776, 2022 WL 2128561, at *2-4 (3d Cir. June 14, 2022); Flathead Bank of Bigfork v. Masonry by Muller Inc., 383 P.3d 215, 216-19 (Mont. 2016); Grayson v. Westwood Buildings L.P., 859 S.E.2d 651, 678 (Va. 2021); Bank of Am. N.A. v. Rolf, 188 A.D.3d 770, 775 (N.Y. App. Div. 2020) (holding that “a Form 1099-C is not, by itself, evidence that a debt was discharged” (brackets and quotation marks omitted)); Verdini v. First Nat’l Bank of Pa., 135 A.3d 616, 619-23 (Pa. Super. Ct. 2016); Lifestyles of Jasper Inc. v. Gremore, 299 S.W.3d 275, 277 (Ky. Ct. App. 2009). ¶38. The Fourth Circuit’s opinion in Cashion represents the “majority” view that the mere filing of a “Form 1099-C is not evidence that a debt was discharged.” Wells Fargo Advisors LLC v. Meyer, 735 F. App’x 23, 24 (2d Cir. 2018). Only a “small minority of courts” have 17 held otherwise. Grayson, 859 S.E.2d at 678 (quotation marks omitted). We agree that the Fourth Circuit’s approach is consistent with the plain language of the regulation, which requires creditors to file the form in certain circumstances in which there is no actual discharge of a debt.7 Therefore, a Form 1099-C is not, by itself, evidence that a debt has been canceled or discharged. ¶39. In the present case, Nationstar sent a Form 1099-C to Harris in 2015. However, Nationstar also assigned the debt to Veripro for servicing, and Veripro continued efforts to collect the debt, sending Harris numerous communications attempting to negotiate a new payment plan. Then, in 2016, Nationstar notified Harris that the Form 1099-C had been “issued in error” and that the error had been reported to the IRS. Harris offered no affidavit or other evidence to support his claim that the later-retracted Form 1099-C evidenced an actual cancellation of the debt.8 Indeed, in his sworn testimony in county court in the unlawful-entry-and-detainer case, Harris merely asserted that the debt had been canceled because he received a “1099,” stating that he “used that as a basis of saying we didn’t owe.” Addressing this issue, the chancery court concluded that there was no genuine issue of material fact and that Nationstar was entitled to summary judgment, reasoning as follows: 7 We note that the regulation was materially amended in November 2016, after the events at issue in this case. See Removal of the 36-Month Non-Payment Testing Period Rule, 81 FR 78908-01, 2016 I.R.B. 768 (Nov. 10, 2016). We express no opinion on the significance of the subsequent amendments, since they have no effect on this case. 8 We note that the instructions to the debtor in the standard Form 1099-C issued to Harris expressly contemplate that the form may have been issued “because an identifiable event ha[d] occurred” even though “the debt ha[d] not actually been discharged.” The form did not include an “identifiable event code” to indicate why it had been issued. 18 Based upon the evidence in the record, it is undisputed that Nationstar did not do anything more than issue a 1099-C in 2014 and then retract it in 2016. [Harris] has not presented any evidence that would create any fact issue on that question; rather, [Harris’s] only response to this undisputed fact is mere allegation. The law pertaining to summary judgment is clear that the non- movant may not rest upon mere allegations in the face of substantial evidence of a lack of disputed fact issues. In light of the undisputed fact that Nationstar did nothing more than issue a 1099-C, which it then retracted, there is no genuine issue of material fact as to the question of whether the loan was “forgiven” in 2014. Based upon the undisputed facts and the applicable law, the loan was not forgiven by Nationstar in 2014. (Citation omitted). ¶40. On appeal, we review an order granting summary judgment de novo, viewing the evidence in the light most favorable to the nonmoving party. Karpinsky v. Am. Nat’l Ins., 109 So. 3d 84, 88 (¶9) (Miss. 2013). Summary judgment “shall” be granted “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.” M.R.C.P. 56(c). “When the plaintiff, as in this case, bears the burden of proof at trial, a defendant may elect to move for summary judgment by identifying deficiencies in the plaintiff’s evidence.” Maxwell v. Baptist Mem’l Hosp.- DeSoto Inc., 15 So. 3d 427, 433 (¶15) (Miss. Ct. App. 2008). ¶41. In responding to a motion for summary judgment, the non-moving party “may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial.” M.R.C.P. 56(e). “[S]ummary judgment is appropriate when the non-moving party has failed to make a showing sufficient to establish the existence of an element 19 essential to the party’s case, and on which that party will bear the burden of proof at trial.” Buckel v. Chaney, 47 So. 3d 148, 153 (¶10) (Miss. 2010) (quotation marks omitted). “The non-moving party has the burden of providing supportive evidence of significant and probative value in opposition to the motion for summary judgment.” Ward v. Ill. Cent. R.R. Co., 271 So. 3d 466, 469 (¶8) (Miss. 2019) (emphasis added) (ellipsis and quotation marks omitted) (quoting Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So. 2d 790, 795-96 (Miss. 1995)). When the non-moving party who “will bear the burden of proof at trial” “fails to make a showing sufficient to establish an essential element of the claim or defense, then all other facts are immaterial and the moving party is entitled to judgment as a matter of law.” McClinton v. Delta Pride Catfish Inc., 792 So. 2d 968, 973 (¶9) (Miss. 2001) (quoting Wilbourn v. Stennett, Wilkinson & Ward, 687 So. 2d 1205, 1214 (Miss. 1996)). As our Supreme Court has emphasized, [t]he presence of fact issues in the record does not per se entitle a party to avoid summary judgment. The court must be convinced that the factual issue is a material one, one that matters in an outcome determinative sense. The existence of a hundred contested issues of fact will not thwart summary judgment where there is no genuine dispute regarding the material issues of fact. Federinko v. Forrest County, 381 So. 3d 343, 351 (¶35) (Miss. 2024) (citations, brackets, and quotation marks omitted) (quoting Shaw v. Burchfield, 481 So. 2d 247, 252 (Miss. 1985)). ¶42. Here, the chancery court did not err by granting summary judgment on Harris’s claim that the foreclosure was wrongful because the underlying debt had been canceled. For the reasons explained above, the mere issuance of a Form 1099-C is inconclusive and is not significant and probative evidence that the debt was canceled. Cashion, 720 F.3d at 178-81. 20 The issuance of such a form is not sufficient, “in and of itself,” to create a genuine issue of material fact or survive summary judgment on a claim that a debt has been canceled. Id. at 180. Here, Harris presented no other evidence that the debt had been canceled. Indeed, in his sworn tes