United States District Court, W.D. North Carolina, Asheville Division
REIDINGER UNITED STATES DISTRICT JUDGE
MATTER is before the Court on the Plaintiff's Motion for
Default Judgment against the Defendant Nicholas Dimitri
Trakas, a/k/a Nicholas Dmitri Trakas, and Defendant Kelly
Hearn Trakas. [Doc. 17].
Plaintiff filed a Verified Complaint against Defendant
Nicholas Dimitri Trakas a/k/a Nicholas Dmitri Trakas
(“Mr. Trakas”) and Defendant Kelly Hearn Trakas
(“Mrs. Trakas”) (collectively
“Defendants”) on September 29, 2016. [Doc. 1]. A
Summons in a Civil Action for Mrs. Trakas was issued on
September 30, 2016 [Doc. 3], and a Summons in a Civil Action
for Mr. Trakas was issued on October 4, 2016 [Doc. 5]. An
issued Summons and Verified Complaint were served on
Defendants pursuant to Rule 4 of the Federal Rules of Civil
Procedure on October 7, 2016, by certified mail, return
receipt requested. [See Doc. 8]. No answer or other
pleading has been filed by the Defendants, no extension of
time to file pleadings has been granted, and the time for
pleading or otherwise defending this action has expired. The
Clerk of Court entered default against the Defendants on
December 15, 2016. [Doc. 12]. By virtue of the
Defendants' default, all of the factual allegations of
the Plaintiff's Complaint have been deemed admitted.
See Ryan v. Homecomings Fin. Network, 253 F.3d 778,
780 (4th Cir. 2001).
review of the Plaintiff's Motion for Default Judgment and
the record as a whole, the Court hereby makes the following
findings of fact and conclusions of law.
or about June 18, 1999, Mr. and Mrs. Trakas purchased certain
real property located at 31 First Street, Tryon, Polk County,
North Carolina (“the Property”) from John
Maitland Thompson and wife, Susan W. Thompson, as described
in that certain general warranty deed recorded on June 21,
1999 in Deed Book 255, Page 1681 of the Polk County, North
Carolina Registry (“Deed”).
or about November 1, 2002, Mr. and Mrs. Trakas entered into
an agreement with Liberty Mortgage Corporation
(“Liberty Mortgage”) whereby Liberty Mortgage
issued a loan to Mr. and Mrs. Page in the principal amount of
$153, 750.00 (“the Loan”).
3. As a
condition of the Loan, Mr. and Mrs. Trakas executed a deed of
trust in favor of Liberty Mortgage, which was recorded on
November 6, 2002 in Deed Book 290, Page 1563 of the Polk
County, North Carolina Registry (“the Deed of
Trust”). The parties intended for the Deed of Trust to
secure Mr. and Mrs. Trakas' obligations under the Loan,
and constitute a first lien and encumbrance on the Property.
Sharon J. Steiner (“Ms. Steiner”) was the notary
public who acknowledged Mr. and Mrs. Trakas' signatures
on the Deed of Trust; however, Ms. Steiner inadvertently
omitted Mrs. Trakas' name from the notarial certificate
in the Deed of Trust.
or about August 26, 2011, the Baltimore, Maryland office of
the Internal Revenue Service (“IRS”) filed a
federal tax lien against Mr. and Mrs. Trakas relating to the
Property, identified as 31 First Street, Tryon, North
Carolina, in the amount of $85, 369.37 in file number 11-M-78
in the Office of the Clerk of Superior Court of Polk County,
North Carolina (“Federal Tax Lien”).
or about November 26, 2012, the Deed of Trust was assigned to
BB&T pursuant to that certain assignment which was
recorded in Deed Book 396, Page 2042 of the Polk County,
North Carolina Registry (“Assignment”).
or around May 1, 2012, Mr. and Mrs. Trakas defaulted on their
obligations under the Loan and Deed of Trust.
preparing to foreclose on the Deed of Trust, pursuant to the
rights reserved in the Deed of Trust, BB&T discovered
that the notary acknowledgement in the Deed of Trust did not
contain Mrs. Trakas' name.
and Mrs. Trakas and BB&T intended for the Deed of Trust
to encumber the Property; however, as a result of the
aforementioned scrivener's error, the Deed of Trust
contains a notarial certificate that does not ...