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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-60076
_______________
COMMERCIAL SERVICES OF PERRY, INC.,
Plaintiff-Appellant,
VERSUS
FEDERAL DEPOSIT INSURANCE CORPORATION,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Northern District of Mississippi
_________________________
January 17, 2000
Before HIGGINBOTHAM and SMITH,
the relevant statute of limitations expired
Circuit Judges, and FALLON, District
before suit was filed, we affirm.
Judge.*
I.
JERRY E. SMITH, Circuit Judge:
CSP purchases bad loans and attempts to
collect the deficiency balance. It bought a
Commercial Services of Perry, Inc.
package of loans from the FDIC that included
("CSP"), sued the Federal Deposit Insurance
three loans known as the "Sams Loans," which
Corporation ("FDIC"), claiming the FDIC had
were originally secured by two deeds of trust.
sold, for its own profit, lands held pursuant to
two deeds of trust that the FDIC had
The loan sale agreement between CSP and
previously sold to CSP. Thus, CSP claims, the
FDIC, entered into on November 15, 1993,
proceeds of that sale inure to it. The FDIC as-
defined "loans" to include all rights or security
serts that the deeds of trust had been
interests in collateral documents and provided
foreclosed on while the FDIC continued to
that "collateral document" included deeds of
hold it, and thus that the sale of assets to CSP
trust. The affidavit and assignment of claim
did not include the relevant deeds of trust,
that consummated the transaction was
which had been extinguished before the sale.
executed on January 11, 1994.
Because we agree with the district court that
The FDIC sold the property to Landmark
Enterprises ("Landmark") on February 4,
* District Judge of the Eastern District of
1994. The FDIC asserts that it had executed
Louisiana, sitting by designation.

a non-judicial foreclosure on the relevant
provided in MISS. CODE ANN. § 15-1-49, the
deeds of trust on October 13, 1992; thus, at
catch-all provision, and CSP does not
the time of saleSSand at the time of the loan
challenge this finding. The court also found
sale agreement with CSPSSFDIC owned the
that the FDIC's sale of the properties occurred
subject property, and the deeds of trust
on February 4, 1994, more than three years
partially securing the "Sams loans" had been
before CSP sued. The facts facially indicate,
extinguished. CSP claims that the debtor's
then, that the statute of limitations bars the
interest in the property was not affected by the
action.
October 1992 foreclosure sale, which did not
become final until entry of the Amended Final
CSP attempts to avoid this result by
Judgment dated January 25, 1994. Thus,
claiming that the statute of limitations should
according to CSP, the deeds of trust had al-
not run on an action of this type, in which two
ready been assigned to it before the
claimants to the same interest exist, until the
foreclosure became official.
latter claimant has received notice of the dis-
position of the interest by the former. This
CSP sued on April 24, 1998, to recover the
finding is not supported by the Mississippi
value of the property sold to Landmark. On
caselaw explicating statutes of limitations
July 9, 1998, CSP served a request for
generally. Those cases have established that,
admissions that the FDIC failed to answer
in Mississippi, the statute runs from the time of
within the prescribed time; the FDIC did,
the injury, not from its discovery.1 That date
however, file an answer to the complaint on
came no later than February 4, 1994, when the
August 5, 1998, which essentially denied the
sale was completed.
request for admissions. FDIC asserts that it
never received the request and did not know
In Mississippi, moreover, recordation of an
that it had been filed until it received the
interest in property provides all future would-
motion for summary judgment on August 17,
be contestants with constructive notice of the
1998, with the request for admissions
interest. Bedford v. Kravis, 622 So. 2d 291,
attached. On receiving the motion, the FDIC
295 (Miss. 1993); Metropolitan Nat'l Bank v.
immediately responded to the request for
United States, 901 F.2d 1297, 1303-04 (5th
admissions.
Cir. 1990). Long before the FDIC sold the
properties to Landmark, it asserted an interest
The district court denied CSP's motion for
in them. The FDIC recorded, in Lowndes
summary judgment and granted FDIC's on al-
County, Mississippi, a "Substituted Trustee's
ternate grounds that (1) the statute of
Deed" on October 15, 1992, and a "Corrected
limitations had run on CSP's claim,
Substituted Trustee's Deed" on July 9, 1993,
invalidating it; and (2) even had the statute not
run, CSP could not prevail, because it could
not show that it had contracted to purchase
1 See Wilson v. Retail Credit Co., 325 F. Supp.
the relevant deeds of trust.
460, 465 (S.D. Miss. 1971); Central Trust Co. v.
Meridian Light & Ry., 63 So. 575, 576 (Miss.
II.
1913) (noting that "the time limited is to be
The district court held that CSP's action is
computed from the day upon which the plaintiff
governed by the three-year statute of limitation
might have commenced an action for the recovery
of his demand").
2

thus establishing notice to the world, including
relationship tantamount in some ways to
CSP, that the FDIC asserted ownership over
partnership, and because CSP does not here
the propertiesSSthat other ownership of them
claim either to have been co-tenant with the
or mortgages on them had been extinguished.
FDIC or to have been "ousted" by it (in the
CSP therefore was chargeable with
real, co-tenancy-related meaning of the term,
constructive notice of the FDIC's interest and
rather than in the irrelevant manner in which
ownership claim as of at least the latter of
CSP employs it), the precedent does not
those dates.2
pertain.
CSP thus faces the challenge of showing
In Estate of Petrick, 635 So. 2d 1389
that, despite the basic rules in Mississippi de-
(Miss. 1994), meanwhile, the executrix was re-
termining when statutes of limitations run, this
quired to provide actual notice to the
case is one in which the statute should not be-
reasonably identifiable creditors of the estate
gin to run until a party in its position has re-
pursuant to a statutory requirement that such
ceived actual notice of the other claimant's ac-
actual notice be provided by executors to
tions. To achieve this end, CSP cites two pre-
creditors. CSP provides no similar statutory
cedents; neither helps.
requirement in cases such as the instant one.
The only relevance of Petrick, then, is to
In Jordan v. Warren, 602 So. 2d 809
suggest that actual notice requirements have
(Miss. 1992), the court required actual notice
arisen in Mississippi only when required by
to be provided to co-tenants before ouster and
statute, and so do not arise here.
adverse possession by one of the tenants could
occur. Because co-tenancy creates a
Furthermore, even were actual notice re-
quired here (and we do not conclude that it is),
it would have been provided more than three
2 CSP contends that this conveyance to the
years before suit was filed. As the FDIC
FDIC, and thus the extinguishment of the deed of
notes, CSP has admitted to having access to
trust, were invalid and were rendered valid only by
the FDIC's files concerning this property,
later judicial order. To make this argument, CSP
which included a January 4, 1993, bankruptcy
asserts that "a deed of trust in Mississippi
court order abandoning the relevant property
containing a defective or faulty description is
to the FDIC as creditor. CSP also was privy
void."
to a March 1995 order that confirmed the
FDIC's ownership. Surely this constituted
This is inaccurate. The very cases cited for this
actual notice of the FDIC's use of the property
proposition distinctly enunciate that "a deed will
as its own.
not be held void for uncertainty of description if,
by any reasonable construction, it can be upheld."
Neil v. Jones, 497 So. 2d 797, 800 (Miss. 1986);
AFFIRMED.
see also Stevenson v. Stevenson, 579 So. 2d 550,
553 (Miss. 1991); Seal v. Anderson, 108 So. 2d
864, 865-66 (Miss. 1959). Thus, CSP needed to
plead and prove not only that the initial property
description in the recordation was faulty, but also
that it was so flawed as to defeat constructive
notice. CSP did not attempt this feat.
3