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Wilmington Savings Fund Society, FSB v. Wayne

United States District Court, E.D. North Carolina, Western Division

May 2, 2017

WILMINGTON SAVINGS FUND SOCIETY, FSB, AS TRUSTEE OF STANWICH MORTGAGE LOAN TRUST A, as Successor in Interest to BANK OF AMERICA, N.A., Plaintiff,
v.
HEATHER ANN WAYNE; ANY SPOUSE OF HEATHER ANN WAYNE; ROBERT MASSENGILL CONSTRUCTION, INC.; THE POINTE AT FLOWERS PLANTATION HOMEOWNERS ASSOCIATION, INC.; NFG#2 FEDERAL CREDIT UNION; UNITED STATES INTERNAL REVENUE SERVICE, Defendants.

          DEFAULT ORDER AND JUDGMENT AS TO DEFENDANTS HEATHER ANN WAYNE, ROBERT MASSENGILL CONSTRUCTION, INC., AND NFG#2 FEDERAL CREDIT UNION

          JAMES C. DEVER, III CHIEF UNITED STATES DISTRICT JUDGE

         THIS CAUSE was decided by the undersigned United States District Court Judge presiding over the May 2, 2017 session of the United States District Court, Eastern District, North Carolina, on Plaintiffs Motion for Entry of a Default Order and Judgment against Defendants Heather Ann Wayne, Robert Massengill Construction, Inc., and NFG#2 Federal Credit Union ("Non-Responding Defendants"), for their failure to file an appearance or answer, or otherwise plead to Plaintiffs Complaint; and It appearing to the Court that default was entered by the United States District Court Clerk against Defendants Heather Ann Wayne, Robert Massengill Construction, Inc., and NFG#2 Federal Credit Union on January 26, 2017, for their failure to plead or otherwise defend as required by law; and It further appearing to the Court that the Defendants were properly served with a copy of the Motion for Default Order and Judgment, Supporting Memorandum of Law, and a Proposed Default Order and Judgment, as shown by the Plaintiff s Certificate of Service filed April 10, 2017, and it appearing that this matter is properly before this Court;

         The Court makes the following findings of fact and legal conclusions:

         FINDINGS OF FACT

         1. On or about February 29, 2008, Defendant Robert Massengill Construction, Inc., a single person, ("Defendant RMC"), executed a General Warranty Deed to William S. Campbell and Stacy W. Campbell, recorded February 29, 2008, in Book 3503, at Page 929, of the Johnston County, North Carolina Registry, ("Chain Deed"), a parcel of real property located at 200 Worthington Court, Clayton, North Carolina 27527 ("Subject Property"), and further described in the legal description contained in the Chain Deed.

         2. On or about September 30, 2010, Defendant Heather Ann Wayne, a single person, ("Defendant Wayne"), acquired the Subject Property via General Warranty Deed from William S. Campbell and Stacy W. Campbell recorded in Book 3899 at Page 205 of the Johnston County, North Carolina Registry, ("Vesting Deed").

         3. On September 30, 2010, Defendant Wayne made, executed, and delivered to Plaintiffs predecessor in interest, FM Lending Services, LLC, a certain Promissory Note.

         4. In order to secure the payment of said Note, and also on September 30, 2010, Defendant Wayne made, executed, and delivered to FM Lending Services, LLC, its successors and assigns, a certain deed of trust encumbering the Subject Property, ("Deed of Trust").

         5. The Deed of Trust was recorded on September 30, 2010, in Book 3899 at Page 207, in the Johnston County Register of Deeds Office.

         6. Due to a mutual mistake of the parties to the Chain Deed, Vesting Deed, and Deed of Trust, or an inadvertent error of the draftsmen of those instruments, the Deed of Trust recorded in Book 3899 at Page 207, the Vesting Deed recorded in Book 3899 at Page 205, and the Chain Deed recorded in Book 3503 at Page 929, all included an incorrect legal description. Specifically, the faulty legal description used in those instruments identified the wrong Plat Book reference as "Plat Book 68" when the correct reference is "Plat Book 66." 7. The correct legal description, and the legal description that was intended to be included in the Vesting Deed, Deed of Trust, and Chain Deed, is:

         Being all of Lot 152, Phase Four-A, Plantation Point subdivision, Part of Section IV of Flowers Plantation, as depicted in Map Book 66, Page 250-252, Johnston County Registry.

         8. Defendant NFG#2 Federal Credit Union was named in this action as a possible interest holder in the Subject Property by virtue of a judgment lien against Defendant Wayne in the original principal amount of $42, 398.70, which lien was filed December 14, 2011, in the Johnston County Case No. 11 CVD 04022.

         9. Defendant NFG#2 Federal Credit Union's lien is junior and subordinate to Plaintiffs Deed of Trust.

         10. Defendant RMC was the last party to hold title to the Subject Property by a conveyance with a completely accurate legal description, and was the first party to make a ...


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