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Branch Banking & Trust Company, 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.

          MANNING FULTON & SKINNER, P.A. Natalie M. Rice, NCSB # 43157 Attorneys for Plaintiff Branch Banking & Trust Company, Inc.

          JILL 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

          CONSENT JUDGMENT

          MARTIN REIDINGER UNITED STATES DISTRICT JUDGE

         THIS 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.”

         And it 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, [1] 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. 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.

         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 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 ...


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