George Kendall Sherry, by counsel Jonathan G. Brill, appeals
the Circuit Court of Hampshire County's August 10, 2016,
memorandum opinion and order wherein the circuit court
ordered that a deed of trust be reformed to include the real
property serving as security under that deed of trust,
rescinded a trustee sale and the conveyance of the subject
property to Respondent Bank of America, N.A. ("Bank of
America"), and reinstated indebtedness owed under the
deed of trust owned by Respondent Selene Finance, LP
("Selene"). In that order, the circuit court also
nullified a transfer on death deed. Respondents Bank of
America and Selene, by counsel R. Terrance Rodgers, filed a
response in support of the circuit court's order.
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.
about February 20, 1989, Mrs. Anne Elizabeth Besecker and Mr.
John Albert Besecker (both now deceased) purchased real
estate in Hampshire County, West Virginia, designated as Lots
19 and 21 in the Whitson's Point subdivision from Billy
and Drema Whitson. Approximately four months later, Mr. and
Mrs. Besecker purchased Lots 17 and 23 in that same
subdivision from the Whitsons. Thereafter, Mr. and Mrs.
Besecker constructed a home on Lot 19. Between 2001 and 2006,
Mr. and Mrs. Besecker executed four deeds of trust in favor
of various financial institutions whereby they pledged as
collateral for mortgage loans all four lots they owned in the
Whitson's Point subdivision. In December of 2008, Mr. and
Mrs. Besecker obtained a mortgage from respondents'
predecessor-in-interest, Real Estate Mortgage Network, Inc.
On the same date, Mr. and Mrs. Besecker executed a deed of
trust, which was recorded in the county clerk's office.
According to the circuit court, Lots 17 and 23 were described
in the property description to the deed of trust, but Lots 19
and 21 were not included in that property description. That
transaction is the one currently at issue.
appraisal for the mortgage loan from respondents to Mr. and
Mrs. Besecker provided a fair market value of Lots 17, 19,
21, and 23, including Mr. and Mrs. Besecker's residence
situated on Lot 19. As part of their loan application with
respondents, the Beseckers submitted an occupancy affidavit
in which they certified that at that time they were occupying
the property being pledged to secure the loan. They also
submitted a Uniform Residential Loan Application in which
they stated that the present market value of their real
property was $215, 000 and that the property being pledged by
them had one unit on it built in 1989. They completed
additional documentation that clearly included their
residence as part of the collateral for the mortgage
loan. Mr. Besecker passed away in May of 2011.
In 2012, by an Assignment of Deed of Trust, the deed of trust
securing the mortgage loan was assigned to Bank of America,
and that deed of trust was recorded with the county clerk.
March 24, 2014, petitioner became successor attorney-in-fact
for Mrs. Besecker pursuant to a durable unlimited power of
attorney, and the same was recorded with the county clerk. On
April 3, 2014, as a result of a default on the mortgage loan,
a trustee's sale was conducted pursuant to the deed of
trust that secured the mortgage loan, and Bank of America was
the highest bidder at that sale. A Trustee's Report of Sale
Under Deed of Trust related to that sale was recorded with
the county clerk. A Trustee's Deed related to that sale
and conveying the property sold to Bank of America was also
recorded with the county clerk. As the circuit court stated
in its order,
[t]he undisputed facts show [that Bank of America] believed
it was purchasing all of the property which the parties to
the Deed of Trust intended would secure the Mortgage Loan,
and in particular, that it was purchasing Lot 19 and Lot 21
of the Whitson's Point subdivision and the Beseckers'
residence. The property which it bought, however, did not
include Lot 19 or Lot 21 of the Whitson's Point
subdivision or the Beseckers' residence. The undisputed
facts show that [Bank of America] first learned of the
mistake in the property description in or about May of 2014,
after the trustee's sale. The undisputed facts show [that
Bank of America] further learned of the mistake in the
property description in connection with its institution of an
unlawful detainer proceeding against Mrs. Besecker in the
Magistrate Court of Hampshire County, West Virginia, in about
July 2014, when [petitioner], responding to the initiation of
said unlawful detainer proceeding, expressed the belief that
[Bank of America] was mistaken in its belief as to the real
property it had purchased at the trustee's sale.
November 17, 2014, Bank of America assigned the mortgage loan
to Selene. On February 11, 2015, petitioner signed a transfer
on death deed, the intent of which was to transfer title to
Lots 19 and 21 to himself upon Mrs. Besecker's death;
that transfer was recorded with the county clerk. This was
done despite petitioner's knowledge that Bank of America
and/or Selene claimed a security interest in those lots at
the time he signed the transfer. Mrs. Besecker died in June
of 2015, and petitioner was appointed administrator of the
14, 2015, Bank of America filed an action in the circuit
court seeking to set aside the transfer on death deed, set
aside the foreclosure sale, and reform the underlying deed of
trust to include lots 19 and 21 as collateral for the loan
made in 2008. Petitioner filed a motion to dismiss for lack
of standing regarding Bank of America's request to void
the transfer on death deed. That motion was denied by order
entered on November 12, 2015. Bank of America sought leave to
amend the complaint, and its amended complaint was filed on
April 13, 2016. Respondents filed a motion for judgment on
the pleadings or, in the alternative, for summary judgment.
According to the circuit court, petitioner's only
defenses were laches and lack of standing as to respondents
with regard to a single count in the first amended complaint.
In its "Memorandum Opinion and Order" filed on
August 10, 2016, the circuit court ruled on respondents'
motion for judgment on the pleadings or, in the alternative,
for summary judgment, ordering that the 2008 deed of trust be
reformed to include the real property serving as security
under that deed of trust, specifically Lots 19 and 21 in the
Whitson's Point subdivision. In its order, the circuit
court also rescinded the trustee sale and voided both the
conveyance of the subject property to Bank of America and the
trustee's report of sale deed of trust. However, it
reinstated the indebtedness owed under the deed of trust
owned by Selene. It also nullified the transfer on death
order, the circuit court also found that the undisputed facts
show that Bank of America instituted suit approximately
fourteen months after becoming aware of the error in the
description of the real property securing the loan. It
further held that there was no prejudice to petitioner due to
that delay because petitioner knew of Bank of America's
security interest claim with regard to Lots 19 and 21 when he
purportedly conveyed those lots to himself. Petitioner
appeals from that order.
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). On appeal,
petitioner asserts three assignments of error. First, he
contends that the circuit court erred when it permitted
respondents to reform the deed of trust at issue and set
aside the foreclosure sale, due in large part to the
timeliness of those actions. He contends that he is at a
significant disadvantage because respondents unreasonably
delayed pursuing the action. Petitioner states that after the
April of 2014 foreclosure sale, Bank of America sought to
evict Mrs. Besecker and her family from the home situated on
Lot 19. At that point, petitioner provided written
correspondence to Bank of America notifying it that it had no
interest in Lot 19. However, Bank of America took no action
for approximately twelve months after petitioner sent that
letter. Petitioner asserts that Bank of America's
assignment of the loan to Selene further illuminates Bank of
America's "lackadaisical course of action . . .
." He further claims that the "unreasonable
delay" caused him to be at a significant disadvantage
because the title to Lots 19 and 21 changed in the interim,
Mrs. Besecker passed away, and he lost Mrs. Besecker's
Court has long held that
"[e]quity has jurisdiction to reform and correct a deed
executed through a mutual mistake of fact to conform to the
actual agreement of the parties to the deed when such mistake
results from the mistake of the scrivener in the preparation
of the deed." Syllabus point 1, Edmiston v.
Wilson, 146 W.Va. 511, 120 S.E.2d 491 (1961).
Syllabus, Reed v. Toothman, 176 W.Va. 241, 342
S.E.2d 207 (1986). In addition, this ...