Stjepan Sostaric, pro se, appeals the order of the Circuit
Court of Morgan County, entered on June 21, 2016, granting
Respondent Sally Marshall's renewed motion for summary
judgment and awarding respondent a deficiency judgment in the
amount of $175, 407.45, and attorney's fees in the amount
of $1, 749.25, plus court costs and pre- and post-judgment
interest. Respondent, pro se, filed a summary response.
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the circuit court's order is appropriate under
Rule 21 of the Rules of Appellate Procedure.
summarize the facts as follows: Petitioner and his former wife
(collectively, "the Sostarics") owned real
property located at 99 Garden Drive, Berkeley Springs, West
Virginia. The Sostarics used the property as collateral to
secure a $200, 000 loan from respondent. The Sostarics
executed both a promissory note and a deed of trust.
Subsequently, the Sostarics defaulted and respondent directed
the trustee to foreclose on the property. At the foreclosure
sale on October 17, 2012, respondent purchased the property
for $60, 000.  Of this amount, $58, 260.757 was
distributed to respondent as the holder of the note that was
secured by the deed of trust, while the remainder was applied
to the costs of the sale.
respondent filed an action against the Sostarics for a
deficiency judgment in the amount of $175, 407.45,
and attorney's fees in the amount of $1, 749.25.
Subsequently, respondent filed a motion for summary judgment.
By order entered on January 16, 2014, the circuit court
awarded summary judgment to respondent finding that the
amounts claimed by her were supported by sworn affidavits.
Accordingly, the circuit court awarded respondent $175,
407.45, for the deficiency judgment and $1,
749.25, for attorney's fees, plus court costs and
Sostarics appealed the circuit court's January 16, 2014,
order granting summary judgment in Sostaric v.
Marshall, 234 W.Va. 449, 766 S.E.2d 396 (2014). The
Sostarics argued that the property was sold for less than its
fair market value at the foreclosure sale and that,
accordingly, the amount of the deficiency judgment awarded
was too high and should have been adjusted to reflect the
property's fair market value at the time of the sale.
Id. at 450, 766 S.E.2d at 398. Following full
briefing and argument, we reversed the award of summary
judgment to respondent holding that "[a] trust deed
grantor may assert, as a defense in a lawsuit seeking a
deficiency judgment, that the fair market value of the
secured real property was not obtained at a trust deed
foreclosure sale." Id. at 450, 766 S.E.2d at
397, syl. pt. 1 (overruling Syl. Pt. 4, Fayette County
National Bank v. Lilly, 199 W.Va. 349, 350, 484 S.E.2d
232, 233 (1997)).
remand to the circuit court, respondent filed a renewed
motion for summary judgment on June 17, 2015, on the ground
that the Sostarics failed to provide any evidence that the
property's fair market value was greater than the
foreclosure sale price. By order entered on October 16, 2015,
the circuit court held the renewed motion for summary
judgment in abeyance for thirty days to allow the Sostarics
to obtain an expert opinion regarding "the fair market
value of the property at the time of the [October 17, 2012, ]
foreclosure sale." Subsequently, after the Sostarics
filed an appraisal valuing the property at $149, 000 as of
November 12, 2015, the circuit court denied respondent's
renewed motion for summary judgment by order entered on
December 15, 2015.
December 28, 2015, respondent filed a motion for
reconsideration of the December 15, 2015, order denying her
renewed motion for summary judgment. Respondent asserted that
the appraisal failed to create a genuine issue of material
fact because the appraiser failed to value the property as of
October 17, 2012, as directed by the circuit court. By order
entered on June 21, 2016, the circuit court granted
respondent's motion for reconsideration and awarded her
summary judgment. The circuit court found that the appraisal,
setting the property's fair market value as of November
12, 2015, was insufficient to show what the fair market value
was at the time of the October 17, 2012 foreclosure sale. The
circuit court awarded respondent a deficiency judgment in the
amount of $175, 407.45, and attorney's fees in
the amount of $1, 749.25, plus court costs and pre-
and post-judgment interest.
Petitioner now appeals the circuit
court's June 21, 2016, order awarding summary judgment to
respondent. "A circuit court's entry of
summary judgment is reviewed de novo." Syl. Pt.
1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755
(1994). Rule 56(c) of the West Virginia Rules of Civil
Procedure provides that summary judgment shall be granted
provided that "there is no genuine issue as to any
material fact and that the moving party is entitled to a
judgment as a matter of law."
of the West Virginia Rule Regarding Deficiency Judgments
deficiency judgment is an imposition of personal liability
upon a mortgagor for an unpaid balance of a secured
obligation after foreclosure of the mortgage has failed to
yield the full amount of the underlying debt."
Sostaric, 234 W.Va. at 452, 766 S.E.2d at 399
(quoting Lawrence R. Ahern, III, The Law of Debtors and
Creditors, § 8:20 (2014)) (internal quotations
omitted). A majority of jurisdictions permit the
sale price of a foreclosed property to be challenged in a
deficiency judgment action. Sostaric, 234 W.Va. at
453, 766 S.E.2d at 400; Lilly, 199 W.Va. at 355, 484
S.E.2d at 238.
in syllabus point 4 of Lilly, we declined to adopt
the majority rule and held that "[a] grantor [of a deed
of trust] may not assert, as a defense in a deficiency
judgment proceeding, that the fair market value of real
property was not obtained at a trustee foreclosure
sale." 199 W.Va. at 350, 484 S.E.2d at 233. In
Sostaric, we determined that petitioner's
argument required us to revisit our holding in
Lilly. 234 W.Va. at 455, 766 S.E.2d at 402. We found
"good and sufficient cause" to overrule syllabus
point 4 of Lilly. Id. at 456, 766 S.E.2d at
403. We summarized our reasoning, as follows:
Our ruling herein is consistent with the majority view of
other jurisdictions, with section 8.4 of the
Restatement [(Third) of Property:
Mortgages], and with prior decisions from this Court
that have applied common law principles of equity to permit
an action to set aside a real property foreclosure sale. Our
ruling will also prevent a creditor from receiving a windfall
and being unjustly enriched at the expense of an already
financially distressed grantor.
Id. W.Va. at 458, 766 S.E.2d at 405. We found that
it was proper to apply common law principles of equity to
allow a trust deed grantor to raise the defense that the
property's fair market value was greater than the
foreclosure sale price in the absence of any statutory
provision to the contrary. Id. W.Va. at 456, 766
S.E.2d at 403. In dissent, Justice Davis stated that the
Legislature had the responsibility of changing