Delsas ex rel. Delsas v. Centex Home Equity

• Decision Date: 01 May 2008
• Docket Number: No. 06CA2571.,06CA2571.
• Parties: Joe DELSAS, by his next friend, Dennis DELSAS, Plaintiff-Appellant, v. CENTEX HOME EQUITY COMPANY, LLC, and United States Small Business Administration, Defendants-Appellees.
• Court: Colorado Court of Appeals

186 P.3d 141

Joe DELSAS, by his next friend, Dennis DELSAS, Plaintiff-Appellant, v. CENTEX HOME EQUITY COMPANY, LLC, and United States Small Business Administration, Defendants-Appellees.

No. 06CA2571.

Colorado Court of Appeals, Div. II.

May 1, 2008.

Worrell, Durrett & Jaynes, PC, Stephen J. Worrell, Anthony J. Durrett, Robert C. Gavrell, Glenwood Springs, Colorado, for Plaintiff-Appellant.

Karsh, Fulton, Gabler & Joseph, PC, Seymour Joseph, Denver, Colorado, Defendant-Appellee Centex Home Equity Company, LLC.

Troy Andrew Eid, United States Attorney, Paul Farley, Assistant United States Attorney, Denver, Colorado, for Defendant-Appellee United States Small Business Administration.

Opinion by Judge BERNARD.

This appeal involves the trial court's dismissal of a claim to quiet title to property based upon allegations that a warranty deed was procured by fraud and by exploiting the incapacity of the deed's grantor, Joe Delsas (Joe). The case was filed by Dennis Delsas (Dennis), Joe's son and next friend. Dennis appeals the trial court's judgment granting a motion to dismiss filed by two of four defendants, Centex Home Equity Company, LLC (Centex) and the United States Small Business Administration (the SBA). We reverse and remand.

I. Background

On July 28, 1994, Joe, who was born in 1916, and his wife, Phyllis, executed their wills. The wills provided that, upon the death of the surviving spouse, the estate would be left to their children.

Phyllis died in June 1998. Joe's daughter and son in-law, Cheryl and John Ratkiewicz (Cheryl and John), moved Joe from Mesquite, Nevada, to a house he owned in Glenwood Springs, Colorado (the house).

On November 6, 1998, Joe revoked his 1994 will and executed a new one leaving the house to Cheryl and John. Joe then conveyed the house to Cheryl and John as joint tenants by warranty deed. Cheryl and John recorded the deed in the official records of Garfield County. The documentation indicated a $40,000 purchase price, which Dennis claims was never paid.

During February 2000 and February 2002, Joe transferred approximately $299,000 into bank accounts owned by Cheryl and John, who then borrowed nearly $450,000 from Centex and the SBA. These loans were secured by a deed of trust on the house.

Dennis, as Joe's next friend, filed this lawsuit in which he made a series of claims against Cheryl and John, including allegations that Joe lacked the mental capacity to understand the effect and consequences of conveying the house and the money to them; that they had exploited Joe's incapacity; and that they had engaged in fraud.

The complaint made a single claim against Centex and the SBA. It alleged the warranty deed was void because Joe lacked the mental capacity to execute it, and because it had been obtained by fraud. As a remedy, Dennis asked the court to conclude that Cheryl, John, Centex, and the SBA did not have any interest in the house and that title should be quieted in Joe.

The complaint did not allege, nor has any evidence been submitted, that Centex or the SBA had any knowledge, at the time the loan was approved and the deed of trust was placed on the house, of the allegations that Joe was mentally incompetent to execute the warranty deed, or the allegations that Cheryl and John engaged in fraud to obtain the warranty deed.

Centex and the SBA filed a motion under C.R.C.P. 12(b)(5) asking the trial court to dismiss the case against them because Dennis had failed to state a claim upon which relief could be granted. Dennis's response was accompanied by two affidavits relevant to this discussion.

The first affidavit was from a medical doctor who had taught neurology at the University of Colorado Health Sciences Center for twenty-four years. The doctor examined Joe, inspected Joe's medical records, and came to the conclusion that Joe had suffered from "severe, and long-standing, vascular dementia" for some time before the occurrence of any of the transactions between Joe and Cheryl and John that formed the basis for the lawsuit. The doctor stated that Joe's "disability was such that he could neither understand nor authorize the making of the Warranty Deed by which he conveyed his home to his daughter and her husband."

The second affidavit was executed by Raelean Ratkiewicz (Raelean), Cheryl and John's daughter. Her affidavit stated that her mother "would often take papers to [her] grandfather [Joe] and tell him to sign them. He would not ask what the documents were or examine them, but just sign them. On the occasion that he did ask, she would tell him it was for medical issues."

In a written order, the trial court granted the motion to dismiss filed by Centex and the SBA, concluding that the warranty deed was voidable, rather than void, because Joe had not been adjudged incompetent before he signed the warranty deed. The court also found that (1) Centex and the SBA were bona fide encumbrancers for value without notice of the alleged defects in the creation of the warranty deed; and (2) Dennis had not pled a cognizable claim for forgery. The trial court did not address Dennis's claim that the warranty deed was absolutely void because of the doctrine of fraud in the factum.

The trial court did not dismiss the claims against Cheryl and John. Dennis appealed after obtaining a certification from the trial court under C.R.C.P. 54(b) declaring that the court's order dismissing the claim against Centex and the SBA was a final judgment, and therefore appealable.

II. Introduction

There is an important difference between a void deed and one that is voidable. A void deed is a nullity, invalid ab initio, or from the beginning, for any purpose. It does not, and cannot, convey title, even if recorded. Empire Ranch & Cattle Co. v. Coldren, 51 Colo. 115, 121, 117 P. 1005, 1007 (1911). The interest of a good faith purchaser under a void deed is not protected. See Upson v. Goodland State Bank & Trust Co., 823 P.2d 704, 706 (Colo.1992).

In contrast, a voidable deed conveys property and creates legal title unless, and until, it is set aside by the court. 23 Am. Jur.2d Deeds § 162 (Mar.2008); see Loque v. Von Almen, 379 Ill. 208, 224, 40 N.E.2d 73, 81-82 (1941); Dent v. Calhoun, 326 So.2d 320, 321-22 (Miss.1976).

The interest of a good faith purchaser who asserts ownership under a voidable deed will be protected. "[T]he distinction between void and voidable deeds becomes highly important in its consequences to third persons, `because nothing can be founded upon a deed that is absolutely void, whereas from those which are only voidable, fair titles may flow.'" Medlin v. Buford, 115 N.C. 260, 20 S.E. 463, 463 (1894)(quoting Somes v. Brewer, 19 Mass. (2 Pick.) 184, 203 (1824)).

Courts have developed rules to determine what sorts of defects render a deed void or voidable, and which defects have no effect. For example, a forged deed is void. Upson, 823 P.2d at 705-06.

Generally, deeds obtained by fraud are voidable. Svanidze v. Kirkendall, 169 P.3d 262, 266 (Colo.App.2007). Thus, the interest of a good faith purchaser in a deed voidable because of fraud will be protected.

A deed obtained as a result of fraud committed against the grantor or by use of undue influence by the grantee may be rescinded by the grantor. If a grantor is aware that the instrument he is executing is a deed and that it will convey his title, but is induced to sign and deliver by fraudulent misrepresentations or undue influence, the deed is voidable and can be relied upon and enforced by a bona fide purchaser.

Fallon v. Triangle Management Services, Inc., 169 Cal.App.3d 1103, 1106, 215 Cal. Rptr. 748, 749-50 (1985) (citation omitted).

However, a deed procured by a particular kind of fraud, called fraud in the factum, is void.

If a person has been fraudulently deceived about the nature of a document, so that he or she is excusably ignorant about what has been signed, courts recognize "fraud in the factum." Unlike other types of fraud, fraud in the factum yields an instrument that is void, and not merely voidable.

Svanidze, 169 P.3d at 266 (citation omitted); see also Upson, 823 P.2d at 706; Dan B. Dobbs, Handbook on the Law of Remedies § 9.6, at 645-46 (2d ed.1993).

The effect of mental incapacity, often described as "insanity" in early cases, of a person executing a deed has long been the subject of debate among courts. See generally Susanna L. Blumenthal, The Default Legal Person, 54 U.C.L.A. L.Rev. 1135, 1219-1244 (June 2007). This debate produced a majority and a minority rule. The minority rule is that the transactions of mentally incapacitated persons are void, while the majority rule is that such transactions are voidable. See generally Richard A. Lord, Williston on Contracts §§ 10:2 (minority rule) & 10:3 (majority rule) (4th ed.1993).

To resolve this case, we must address (1) the concept of fraud in the factum, and (2) whether Colorado follows the minority or the majority rule concerning the effect of a person's alleged mental incapacity upon a deed that he or she executes. However, we first analyze the procedural posture in which these issues are to be considered.

III. C.R.C.P. 12(b)(5) and 56

When, as here, a court looks to information outside the complaint in considering a motion to dismiss under C.R.C.P. 12(b)(5), the motion must be treated as a request for summary judgment, and resolved under C.R.C.P. 56. C.R.C.P. 12(b)(5); Public Service Co. v. Van Wyk, 27 P.3d 377, 386 (Colo.2001). Summary judgment may be entered only when there is no genuine issue of material fact. A material fact is one that affects the case's outcome. McGee v. Hardina, 140 P.3d 165, 166 (Colo.App.2005). We review trial court orders granting motions for summary judgment de novo. Id.

Here, the trial court considered affidavits submitted by both parties in support of their respective positions on the motion to dismiss. Thus, the trial court treated the motion to dismiss as a motion for summary judgment, and we review...