Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

DuBois v. James B. Nutter & Co.

Supreme Court of West Virginia

June 8, 2018

Stephen F. DuBois, on behalf of the Estate of Katherine A. Forman, Plaintiff Below, Petitioner
v.
James B. Nutter & Company and Metrocities Mortgage, LLC, Defendants Below, Respondents

          Preston County 14-C-139

          MEMORANDUM DECISION

         Petitioner Stephen F. DuBois, on behalf of the Estate of Katherine A. Forman, by counsel Avrum Levicoff and Jordan C. Hettrich, appeals the October 8, 2015, order that granted summary judgment in favor of Respondent James B. Nutter & Co. ("JBN") allowing it to go forward with the foreclosure on certain property that was subject to a reverse mortgage held by JBN at the time of petitioner's mother's death. JBN, by counsel Jason S. Murphy and James M. Evans, filed a summary response in support of the circuit court's order. Petitioner filed a reply.

         This 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.

         Prior to August 11, 2005, the subject property, now known as 871 Alpine Lake Road, Terra Alta, West Virginia, [1] was owned by Katherine A. Forman, petitioner's mother. On August 11, 2005, Ms. Forman conveyed the subject property to petitioner. This deed was recorded in the Office of the Clerk of the County Commission of Preston County, in Deed Book 659, at page 450.

         In 2008, at a time when Ms. Forman, who was elderly, was in failing health and required a substantial amount of medical care and attention, she (as "borrower") and petitioner (as "co-borrower") applied for a "reverse mortgage"[2] from Financial Freedom Senior Funding Corporation. On December 5, 2008, petitioner conveyed the subject property back to Ms. Forman because, he claims, he was advised that "the property had to be titled in the name of the 'primary borrower' to make the reverse mortgage." This deed is recorded in the Office of the Clerk of the County Commission of Preston County in Deed Book 700, at page 723.

         On January 7, 2009, Ms. Forman, as the sole owner of the subject property, signed an "Adjustable Rate Note (Home Equity Conversion)" as the sole borrower. The lender was Metrocities Mortgage LLC doing business as Fidelity and Trust Mortgage. Also on that date, Ms. Forman signed, as the sole borrower, a "Deed of Trust (Home Equity Conversion)" The Deed of Trust was recorded in the Office of the Clerk of the County Commission of Preston County in Deed Book 464, at page 545.

         Paragraph 9 of the Deed of Trust[3] provides:

Grounds for Acceleration of Debt.
(a) Due and Payable. Lender may require immediate payment in full of all sums secured by this Security instrument if:
(i) A Borrower dies and the Property is not the principal residence of at least one surviving Borrower; or
(ii) All of a Borrower's title in the Property (or his or her beneficial interest in a trust owning all or part of the Property) is sold or otherwise transferred and no other Borrower retains (a) title to the Property in fee simple, (b) a leasehold under a lease for less than 99 years which is renewable or a lease having a remaining period of not less than 50 years beyond the date of the 100th birthday of the youngest Borrower (or a beneficial interest in a trust with such an interest in the Property), or (c) a life estate in the Property.

         (d) Lender shall notify the Secretary and Borrower whenever the loan becomes due and payable under Paragraph 9(a)(ii) and (b). Lender shall not have the right to commence foreclosure until Borrower has had thirty (30) days after notice of either:

(i) Correct the matter which resulted in the Security Instrument coming due and payable; or
(ii) Pay the balance in full; or
(iii) Sell the Property for the lesser of the balance or 95% of the appraised value and apply the net proceeds of the sale toward the balance; or
(iv) Provide the Lender with a deed in lieu of foreclosure.

         It is undisputed that, upon execution of the Adjustable Rate Note and Deed of Trust, Ms. Forman received an initial advance of $168, 859.47. Approximately $70, 000 of this amount was used to satisfy and release an existing loan and mortgage. The remainder was thereafter used to help with Ms. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.