Stephen F. DuBois, on behalf of the Estate of Katherine A. Forman, Plaintiff Below, Petitioner
James B. Nutter & Company and Metrocities Mortgage, LLC, Defendants Below, Respondents
Preston County 14-C-139
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.
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.
to August 11, 2005, the subject property, now known as 871
Alpine Lake Road, Terra Alta, West Virginia,  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
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" 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.
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.
9 of the Deed of Trust 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
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
(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.
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.