WILMINGTON SAVINGS FUND SOCIETY, FSB, d/b/a CHRISTIANA TRUST AS OWNER TRUSTEE OF THE RESIDENTIAL CREDIT OPPORTUNITIES TRUST III, Plaintiff,
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR ACOPIA, LLC, SOUTHAMPTON COMMONS HOMEOWNERS ASSOCIATION, INC., ROSSABI BLACK SLAUGHTER, PA, KEITH H. PROPERTY, LLC, KEITH LAMANCE HARRELL, IH6 PROPERTY NORTH CAROLINA, LP and DOE DEFENDANTS A-Z, Defendants.
in the Court of Appeals 26 March 2019.
by plaintiff from orders entered 4 December 2017 and 16
January 2018 by Judge Eric L. Levinson in Mecklenburg County
Superior Court No. 16 CVS 16352.
Bradley Arant Boult Cummings LLP, by Brian M. Rowlson, Mark
S. Wierman and G. Benjamin Milam, for plaintiff-appellant.
Roberson Haworth & Reese, P.L.L.C., by Alan B. Powell and
Christopher C. Finan, for defendant-appellee IH6 Property
North Carolina, LP.
Savings Fund Society ("Plaintiff") appeals from an
order granting IH6 Property North Carolina, LLC's
("Defendant") motion for judgment on the pleadings
pursuant to Rule 12(c) of the N.C. Rules of Civil Procedure
and an order denying Plaintiff's motion for
reconsideration. We reverse and remand.
Harrell purchased property located at 9007 Holland Park Lane
in Charlotte, North Carolina, in February 2009. Harrell
borrowed $171, 830 from Acopia, LLC, as evidenced by a
promissory note. To secure the note, Harrell executed a deed
of trust in favor of Mortgage Electronic Registration Systems
("MERS"), solely as nominee for Acopia and its
successors and assigns. Through a series of assignments, LSF9
Master Participation Trust ("LSF9") acquired the
note and deed of trust in July 2015. Harrell subsequently
defaulted on payments due under the terms of the note and
deed of trust.
Southampton Commons Homeowners Association, Inc.
("HOA") filed a lien against Harrell's property
at 9007 Holland Park Lane for unpaid assessments. Following a
hearing in August 2015, the property was sold at auction to
Keith H. Property, LLC ("Keith Property"). The HOA
conveyed the property via a quitclaim deed with title
expressly "subject to any and all superior liens,"
which was recorded in the Mecklenburg County Public Registry
on 18 December 2015.
Capital Corporation ("Kondaur") acquired the note
and deed of trust on 28 October 2015 through assignment from
LSF9. This assignment was recorded on 3 December 2015. A
purported satisfaction of the deed of trust was executed by a
vice president of MERS, without any authority, and was
recorded on 2 December 2015 in the Mecklenburg County Public
Property conveyed its interest in the property to Defendant
via general warranty deed, recorded on 7 March 2016. Kondaur
initiated action against Defendant; MERS; the HOA; the
substitute trustee that handled the HOA sale; Harrell; and
Keith Property on 15 September 2016. Kondaur's complaint
requested the trial court to issue a judgment declaring,
inter alia, the deed of trust remained a valid,
enforceable first priority lien on the property, and that
Defendant had acquired its interest in the property subject
to Kondaur's prior lien. A notice of lis pendens
was filed 26 September 2016. Defendant served its affirmative
defenses, answer, and counterclaim on 21 November 2016,
seeking to quiet the title of the property pursuant to N.C.
Gen. Stat. §§ 41-10 and 1-253.
acquired the note and deed of trust from Kondaur in a pool of
loans it purchased on or about 25 November 2016. An
assignment evidencing the transaction was executed on 8
December 2016 and recorded on 21 July 2017. Plaintiff filed a
motion to substitute as a party and an answer to
Defendant's counterclaim on 10 January 2017.
trial court entered a consent final judgment concerning MERS
on 3 April 2017. The court's consent judgment found and
concluded MERS no longer held any interest in the deed of
trust at the time the purported satisfaction was executed and
recorded, it was without authority to execute the
satisfaction, and the satisfaction was void.
discovery, Plaintiff filed a motion for summary judgment in
August 2017. In September 2017, Defendant filed a motion for
judgment on the pleadings. After a hearing, the trial court
entered an order granting Defendant's motion for judgment
on the pleadings on 4 December 2017. Plaintiff made a motion
for reconsideration, which was denied without a hearing on 16
January 2018. Plaintiff timely appealed both orders.