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Branch Banking & Trust Co. Inc. v. Trakas

United States District Court, W.D. North Carolina, Asheville Division

August 1, 2017

BRANCH BANKING & TRUST COMPANY, INC., Plaintiff,
v.
NICHOLAS DIMITRI TRAKAS a/k/a NICHOLAS DMITRI TRAKAS and wife, KELLY HEARN TRAKAS; and UNITED STATES OF AMERICA DEPARTMENT OF TREASURY INTERNAL REVENUE SERVICE, Defendants.

          DEFAULT JUDGMENT

          MARTIN REIDINGER UNITED STATES DISTRICT JUDGE

         THIS 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].

         The 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).

         Upon 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.

         FINDINGS OF FACT

         1. On 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”).

         2. On 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.

         4. 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.

         5. On 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”).

         6. On 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”).

         7. In or around May 1, 2012, Mr. and Mrs. Trakas defaulted on their obligations under the Loan and Deed of Trust.

         8. In 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.

         9. Mr. 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 ...


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