CONLEY v. Conley, Bankruptcy No. 2:04-20367.
| Citation | 438 B.R. 554 |
| Decision Date | 29 September 2010 |
| Docket Number | Civil Action No. 2:07-0444.,A.P. No. 2:04-2022.,Bankruptcy No. 2:04-20367. |
| Court | U.S. District Court — Southern District of West Virginia |
| Parties | Homer CONLEY and Barbara Eileen Conley, Debtors, Citifinancial Mortgage Company, Inc., Appellant, v. Homer Conley and Barbara Conley, Appellees. |
OPINION TEXT STARTS HERE
Bernard L. Spaulding, for Debtors.
Appellant Citifinancial Mortgage Company, Inc. (“Citi”) appeals the February 13, 2007, order of the bankruptcy court in this adversary proceeding granting U.S. Bank's motion for summary judgment. 1
The adversary proceeding was commenced by the debtors, Homer and Barbara Conley, to determine the status and priority of two deeds of trust, one held by Citi and the other by U.S. Bank. Those deeds of trust allegedly encumber the 1.81-acre tract of real estate upon which the home of the debtors rests in Logan County, West Virginia. (Citi Br. at 3-4). With discovery having closed ( id. at 2) and with the motions for summary judgment of Citi and U.S. Bank ready for decision, the bankruptcy court found that defendant U.S. Bank has a valid, first priority lien on the 1.81-acre tract by virtue of its deed of trust dated February 22, 2002, and executed by Homer Conley and Joshua Conley whom the court found to be the owners. (Bankr.Ct. Order at 5). The bankruptcy court determined that Homer and Barbara Conley did not have title to the 1.81-acre tract that purportedly served as the basis for Citi's deed of trust at the time it was executed by them on October 30, 1997. ( Id.).
Following oral argument in chambers on the motions for summary judgment on September 7, 2006, Citi filed in a single document, on September 12, 2006, a motion to compel the disclosure (that is, generate and produce) a Fed.R.Civ.P. Rule 26(a)(2)(B) written report of an expert witness, Dexter Branham, a surveyor, named not by U.S. Bank or Citi but by the debtors/ plaintiffs Homer and Barbara Conley; a motion to extend discovery for the taking of the depositions of Branham and another surveyor, J. Bruce Hager, and of a third surveyor should Citi choose to hire one; and a motion for trial on the merits if Citi's motion for summary judgment were denied. (Mot. to Comp. at 4-5). By order entered September 22, 2006, the bankruptcy court stated that it was taking the motions for summary judgment under advisement. Conley v. Citifinancial Mortgage Co., A.P. No. 04-2022, slip op. at 1-2 (Bankr.S.D.W.Va. Sept. 22, 2006).
The bankruptcy court ruled on the issues arising in the motions for summary judgment without addressing Citi's post-hearing motions, presumably because it deemed the summary judgment motions already submitted. Although Citi lists, as an issue presented on appeal, error by the bankruptcy court in not granting Citi's motions to compel, extend discovery, and for trial on the merits, that issue is not further pursued in Citi's briefs, and may be deemed abandoned. In any event, there is no error in the bankruptcy court's failure to grant relief on Citi's belated post-hearing motions which simply sought without good cause to begin the discovery and summary judgment motions process anew at a time when the motions for summary judgment were ripe for decision.
Citi contends on appeal that the bankruptcy court erred by not granting summary judgment in its favor and by granting summary judgment in favor of U.S. Bank. (Citi Br. at 1). Citi focuses, first, on the purely legal question of whether a 1984 boundary agreement vested Homer and Barbara Conley with title to the tract of land serving as the basis for Citi's deed of trust and, second, the bankruptcy court's alleged lack of sufficient evidence for making its central factual finding that one of the two tracts of land in question (the 1.81-acre tract) is wholly encompassed by the other (the “5-acre” tract shown as 15.84 acres in the Branham survey). ( Id. at 13-19). Much of the second argument is Citi's assertion that the bankruptcy court improperly relied on the unrecorded and unsworn plat of the survey by Dexter Branham conducted by him from August 26 through 31, 2004, being after the commencement of the adversary proceeding. ( Id.).
Dexter Branham's plat of the survey of the 15.84-acre tract shows a 1.43-acre out conveyance, leaving a 14.41-acre tract that includes the 1.81 acre tract. As will be seen, the 15.84-acre tract is referred to in all pertinent deeds and the U.S. Bank deed of trust as being a “5-acre” tract. And the 1.81-acre tract is referred to as one acre in the deed purporting to convey it alone.
As found to be factually undisputed by the bankruptcy court, title to the “5-acre” tract (actually 15.48 acres per the Branham survey) that includes the 1.81-acre tract is derived from a 106-acre tract owned by Miller and Margaret Conley who in 1962 carved out the “5-acre” tract and conveyed it to Brady and Gency Conley who in 1974 conveyed it to Matthew and Edna Conley, the parents of Homer Conley. Following Matthew's death, Edna Conley as the surviving joint tenant conveyed the “5-acre” tract in 1999 to Homer Conley and his son Joshua Conley who in turn executed the deed of trust in 2002 in favor of U.S. Bank on the “5-acre” tract, using the same description set forth in every deed in the chain commencing with Miller and Margaret Conley. 2 Fourteen years after Miller and Margaret Conley conveyed away the “5-acre” tract by the 1962 deed that was recorded February 4, 1963, they nevertheless attempted in 1976 to convey part of it again, described as one acre but found by the 1984 Hager survey to be 1.81 acres, to Homer and Barbara Conley. In 1984, Homer and Barbara obtained a boundary agreement from all those who surrounded the 1.81-acre tract.
Homer and Barbara, refinancing from time to time, executed a series of deeds of trust on the 1.81 acres, culminating in the 1997 deed of trust in favor of Citi. All of the deeds and trust deeds referred to herein were duly and timely recorded in the office of the Clerk of the County Commission of Logan County.
The court is vested with jurisdiction pursuant to 28 U.S.C. § 158. Our court of appeals recently summarized the governing standard of review:
We review a grant of partial summary judgment by the bankruptcy court and the affirmance thereof by the district court de novo. Summary judgment in bankruptcy is governed by Federal Rule of Bankruptcy Procedure 7056, which incorporates the standards of Federal Rule of Civil Procedure 56 into bankruptcy proceedings.
United Rentals, Inc. v. Angell, 592 F.3d 525, 530 (4th Cir.2010).
The Rule 56 standards are well settled. A party is, of course, entitled to summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Material facts are those necessary to establish the elements of a party's cause of action. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Notwithstanding the prior out conveyance of the “5-acre tract” in 1962 by Miller and Margaret Conley, Citi has identified four bases upon which it claims that Homer and Barbara Conley acquired title to the 1.81-acre tract constituting a part of that same “5-acre” tract prior to 1997. ( Id.). They consist of the following: (1) the deed from Miller and Margaret Conley dated December 3, 1976, (2) the boundary agreement dated June 22, 1984, (3) a corrective deed relating to the boundary agreement dated June 26, 1984, and recorded on July 20, 1984, and (4) the doctrine of adverse possession. 3 (Id.; Citi Br. at 7).
On December 3, 1976, Miller and Margaret Conley attempted to convey the 1.81-acre tract to Homer and Barbara Conley, the deed for which was recorded that same day. (Bankr.Ct. Order at 4). Inasmuch as Miller and Margaret Conley in 1962 conveyed the “5-acre” tract, of which the 1.81-acre tract is a part, to Brady and Gency Conley, who, in 1974, conveyed the same tract to Matthew and Edna Conley, Miller and Margaret Conley had no interest in the 1.81-acre tract to convey in 1976. ( Id.). Because the 1962 deed to Brady and Gency Conley was duly and timely placed of record, it became constructive notice to all the world under West Virginia Code section 40-1-9, stating
Every such contract, every deed conveying any such estate or term, and every deed of gift, or trust deed or mortgage, conveying real estate shall be void, as to creditors, and subsequent purchasers for valuable consideration without notice, until and except from the time that it is duly admitted to record in the county wherein the property embraced in such contract, deed, trust deed or mortgage may be.
Id. In this appeal, Citi appears to abandon the argument that the 1976 deed conferred title upon Homer and Barbara Conley and instead focuses on the 1984 boundary agreement. (Citi Br. at 13-19). In any case, the 1976 deed is not a basis for Homer and Barbara Conley acquiring an interest in the 1.81-acre tract.
The bankruptcy court acknowledged that while the signatories to these agreements, notably Matthew and Edna Conley and Homer and Barbara Conley, “may have believed that Homer and Barbara Conley were the owners of the 1.81 acre tract,” it concluded, “they were clearly not attempting to convey such ownership” with the boundary agreement. (Bankr.Ct. Order at 5).
The court finds it useful to set the boundary agreement out at length.
THIS AGREEMENT, dated this the 22nd of June, 1984, by and between MILLER CONLEY AND MARGARET CONLEY, his wife, parties of the first part, LASKIE PAYNE and LAWRENCE PAYNE, her husband, parties of the second part, MATTHEW CONLEY and EDNA CONLEY,...
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