Henderson v. Bank of Am., N.A. (In re Simmons)

• Decision Date: 24 April 2014
• Docket Number: Bankruptcy No. 1200937EE.,Adversary No. 1200061EE.
• Citation: 510 B.R. 76
• Parties: In re Kenneth Lee SIMMONS, Mary Allison Simmons. Derek A. Henderson, Trustee for Kenneth Lee Simmons and Mary Allison Simmons, and Trustmark National Bank v. Bank of America, N.A.
• Court: U.S. Bankruptcy Court — Southern District of Mississippi

510 B.R. 76

In re Kenneth Lee SIMMONS, Mary Allison Simmons.Derek A. Henderson, Trustee for Kenneth Lee Simmons and Mary Allison Simmons, and Trustmark National Bank

v.Bank of America, N.A.

Bankruptcy No. 1200937EE.

Adversary No. 1200061EE.

United States Bankruptcy Court, S.D. Mississippi.

Signed April 24, 2014.

Eileen N. Shaffer, Jackson, MS, for Debtors.

Derek A. Henderson, Jackson, MS, Chapter 7 Trustee.

Patrick F. McAllister, Ridgeland, MS, for Trustmark National Bank.

Laura Henderson–Courtney, Jackson, MS, Donald A. Windham, Jackson, MS, Attorneys for Bank of America.

MEMORANDUM OPINION

EDWARD ELLINGTON, Bankruptcy Judge.

THIS MATTER came before the Court on the following pleadings:

1. Bank of America, N.A's Motion to Abstain (Adv. Dkt. # 22);

2. Trustmark National Bank's Objection to Bank of America, N.A.'s Motion to Abstain (Adv. Dkt. # 26);

3. Plaintiffs' Objection to Bank of America, N.A.'s Motion to Abstain (Adv. Dkt. # 27) filed by the Kenneth Lee Simmons and Mary Allison Simmons;

4. Bank of America, N.A.'s Reply in Support of its Motion to Abstain (Adv. Dkt. # 29);

5. Bank of America, N.A.'s Motion for Summary Judgment (Adv. Dkt. # 45) and Bank of America's Itemization of Undisputed Facts in Support of its Motion for Summary Judgment (Adv. Dkt. # 56);

6. Response of Trustmark National Bank to Bank of America, N.A.'s Motion for Summary Judgment (Adv. Dkt. # 48);

7. Bank of America, N.A.'s Reply in Support of its Motion for Summary Judgment (Adv. Dkt. # 52);

8. Motion of Trustmark National Bank for Summary Judgment (Adv. Dkt. # 49);

9. Bank of America, N.A.'s Response to Trustmark National Bank's Motion for Summary (Adv. Dkt. # 54); and 10. Trustmark National Bank's Reply Memorandum Brief in Support of its Motion for Summary Judgment (Adv. Dkt. # 55).

After considering the pleadings and the briefs, the Court finds that Bank of America, N.A's Motion to Abstain (Adv. Dkt. # 22) is not well taken and should be denied. The Court further finds that Bank of America, N.A.'s Motion for Summary Judgment (Adv. Dkt. # 45) should be denied and that Motion of Trustmark National Bank for Summary Judgment (Adv. Dkt. # 49) should be granted.

FINDINGS OF FACT

The Court agrees with the parties that the facts are not in dispute.¹ Consequently, the undisputed facts are as follows:

On October 29, 1992, the property located at 3426 Old Canton Road, Jackson, Mississippi, 39216, (Property) was conveyed by Warranty Deed (1992 Deed) from James L. Brown and Mary Grace Brown to Mary Allison Brown Simmons, one of the debtors in this case. The 1992 Deed was recorded at Book 4046, Page 205 in the land records of Hinds County, Jackson, Mississippi. The legal description contained in the 1992 Deed is as follows:

That part of Lot Fifteen (15), of Block “A”, of Woodland Hills, a subdivision to the City of Jackson, First Judicial District of Hinds County, Mississippi, according to the map or plat thereof of record in the office of the Chancery Clerk of Hinds county at Jackson, Mississippi, in Plat Book No. 4 at Page 40 thereof, which is more particularly described by metes and bounds as follows:

Beginning at a point on the southeastern line of Canton Avenue a distance of 58.2 feet measured southwesterly along the southeastern line of Canton Avenue from its intersection with the line of Canton Avenue from its intersection with the line between Lots 14 and 15 of said Block “A” of Woodland Hills, run thence southwesterly along the southeastern line of Canton Avenue (being the northwestern line of said Lot 15) for a distance of 80 feet; thence turning to the left through an angle of 94 degrees 28 minutes run southeasterly for a distance of 203.5 feet to a point on the southeastern line of said Lot 15, which point is 24 feet northeasterly from the southern corner of said Lot 15; thence turning to the left through an angle of 100 degrees 22 minutes run northeasterly along the southeastern line of said Lot 15, for a distance of 80 feet; thence northwesterly a distance of 182.8 feet to the point of beginning. ²

On October 1, 2003, Kenneth L. Simmons and Mary Allison Brown Simmons (Debtors) executed a Deed of Trust (2003 Deed of Trust) in favor of Full Spectrum Lending, Inc. The 2003 Deed of Trust was recorded at Book 5910, Page 409 in the land records of Hinds County, Jackson, Mississippi, on October 15, 2003.

Attached to the 2003 Deed of Trust is Exhibit “A” Legal Description (Legal Description). The Legal Description states as follows:

All that certain parcel of land situated in the Township of Dingman, County of Pike, and Commonwealth of Pennsylvania, more particularly described as follows:

Lot 29, on a Subdivision Plan entitled “Blue Stone Ridge Sub–Division” dated October 17, 1990, surveyed and drawn by Pasquale R. Addio, Registered Surveyor, Milford, Pennsylvania, Drawing No. F–300–88–90, and recorded in the Office of the Recorder of Deeds, Pike County, Pennsylvania on January 3, 1991, in Plat Book 28, at page 164, reference being had thereto for a more complete description of the premises conveyed herein.

Tax ID: 03–0–110791 ³

Clearly, this Legal Description is not the correct legal description for the Property which is located in Hinds County, Mississippi.

The Debtors executed a subsequent Deed of Trust (Trustmark Deed of Trust) to Trustmark National Bank (Trustmark) on December 15, 2006. The Trustmark Deed of Trust was recorded at Book 6632, Page 377 in the land records of Hinds County, Jackson, Mississippi, on January 24, 2007. Attached to the Trustmark Deed of Trust as Exhibit “A ” is a legal description:

That part of Lot Fifteen (15), of Block “A”, of Woodland Hills, a subdivision to the City of Jackson, First Judicial District of Hinds County, Mississippi, according to the map or plat thereof of record in the office of the Chancery Clerk of Hinds County at Jackson, Mississippi, in Plat Book No. 4 at Page 40 thereof, which is more particularly described by metes and bounds as follows:

Beginning at a point on the southeastern line of Canton Avenue a distance of 58.2 feet measured southwesterly along the southeastern line of Canton Avenue from its intersection with the line between Lots 14 and 15 of said Block “A” of Woodland Hills, run thence southwesterly along the southeastern line of Canton Avenue (being the northwestern line of said Lot 15) for a distance of 80 feet; thence turning to the left through an angle of 94° 28' run southeasterly for a distance of 203.5 feet to a point on the southeastern line of said Lot 15, which point is 24 feet northeasterly from the southern corner of said Lot 15; thence turning to the left through an angle of 100° 22' run northeasterly along the southeasterly along the southeastern line of said Lot 15 for a distance of 80 feet; thence northwesterly a distance of 182.8 feet to the point of beginning.⁴

This legal description is substantially the same ⁵ legal description contained in the 1992 Deed and is the correct legal description for the Property.

On September 19, 2011, Mortgage Electronic Registration Systems, Inc. as nominee for Full Spectrum Lending, Inc. entered into a Corporation Assignment of Deed of Trust/Mortgage (Assignment) in which it assigned the 2003 Deed of Trust to “The Bank of New York Mellon FKA The Bank of New York as Trustee for the Certificateholders of CWABS 2004–02.” ⁶ The Assignment states that it assigns

[A]LL BENEFICIAL INTEREST UNDER THAT CERTAIN DEED OF TRUST DATED 10/01/2003, EXECUTED BY: KENNETH L. SIMMONS AND MARY ALLISON BROWN SIMMONS, TRUSTOR: TO CTC REAL ESTATE SERVICES, AS TRUSTEE FILED ON 10/15/2003 AND RECORDED, IN BOOK 5910, PAGE 409 OF OFFICIAL RECORDS IN THE COUNTY RECORDERS OFFICE OF HINDS COUNTY, IN THE STATE OF MISSISSIPPI, DESCRIBING THE LAND THEREIN AS MORE FULLY DESCRIBED IN SAID DEED OF TRUST.⁷

Even though the Assignment refers to the Legal Description contained in the 2003 Deed of Trust the legal description attached to the Assignment as Exhibit A is not the legal description of property located in the Commonwealth of Pennsylvania. Instead, Exhibit A is the legal description of the Property as contained in the 1992 Deed and the Trustmark Deed of Trust. The Assignment was recorded at Book 7124, Page 8114 in the land records of Hinds County, Jackson, Mississippi, on October 19, 2011.

It appears that sometime after the Assignment was recorded, the error in the Legal Description contained in the 2003 Deed of Trust was discovered. On February 15, 2012, the Bank of New York Mellon F/K/A the Bank of New York as Trustee for the Benefit of the Certificateholders of the CWABS Inc., Asset–Backed Certificates, Series 2004–2 (BNYM) filed a Complaint to Reform a Deed of Trust (State Complaint) in the Chancery Court of the First Judicial District of Hinds County, Jackson, Mississippi. The Debtors were the only named defendants.

In the State Complaint, BNYM acknowledges that due to “scrivener's error” ⁸ the Legal Description attached to the 2003 Deed of Trust is incorrect and that the legal description in the 1992 Deed is correct. BNYM requests that the 2003 Deed of Trust be reformed to contain the same legal description as that contained in the 1992 Deed.

On February 15, 2012, BNYM filed a Lis Pendens Notice (Lis Pendens) in the office of the Chancery Clerk of the First Judicial District of Hinds County, Jackson, Mississippi. The Lis Pendens states that BNYM was “seeking to enforce a lien” ⁹ on the Debtors' property. The Lis Pendens contains the correct legal description for the Property.

On March 15, 2012, the Debtors filed a petition for relief under Chapter 7 of the United States Bankruptcy Code. Derek A. Henderson (Trustee) was appointed the Chapter 7 Trustee for the Debtors' bankruptcy case.

On June 6, 2012, the Debtors filed their Complaint to Determine Extent and Validity of Liens (Adv. Dkt. # 1) (Complaint) in this Court against Bank of America, N.A. (BOA).¹⁰ In their Complaint, the Debtors allege that because the Legal Description...