United States District Court, W.D. North Carolina, Asheville Division
MANNING FULTON & SKINNER, P.A. Natalie M. Rice, NCSB #
43157 Attorneys for Plaintiff Branch Banking & Trust
WESTMORELAND ROSE UNITED STATES ATTORNEY Gill P. Beck, NCSB #
13175 Attorneys for Defendant United States of America
Department of Treasury Internal Revenue Service Assistant
United States Attorney
REIDINGER UNITED STATES DISTRICT JUDGE
CAUSE coming on to be heard and being heard before the
undersigned District Court Judge for The United States
District Court for the Western District of North Carolina,
resolving the Complaint of Plaintiff Branch Banking &
Trust Company, Inc. (“Plaintiff”) against
Defendant United States of America Department of Treasury
Internal Revenue Service (“Defendant IRS”)
asserting claims for declaratory judgment and reformation of
the Deed of Trust. Natalie M. Rice of the law firm Manning
Fulton & Skinner, P.A. appearing on behalf of Plaintiff
and Gill P. Beck, Assistant United States Attorney for the
United States Attorney's Office, Western District of
North Carolina appearing on behalf of Defendant IRS.
Plaintiff and Defendant IRS are collectively referred to
herein as “the Parties.”
appearing to the Court from the representations of the
Parties, and signatures of the Parties' counsel hereon
that Defendant IRS has agreed to an entry of judgment against
it as set forth below, and with the consent of the Parties,
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. Trakas 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 to the Loan and Deed of Trust
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 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
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 ...