Calvin T. Odom v. Partners for Payment Relief ( 2015 )


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  •                             STATE OF WEST VIRGINIA
    SUPREME COURT OF APPEALS
    Calvin T. Odom,                                                                   FILED
    Defendant Below, Petitioner                                                   June 12, 2015
    RORY L. PERRY II, CLERK
    SUPREME COURT OF APPEALS
    vs) No. 14-0865 (Jefferson County 12-C-247)                                    OF WEST VIRGINIA
    Partners for Payment Relief, DE III, LLC,
    Plaintiff Below, Respondent
    MEMORANDUM DECISION
    Petitioner Calvin T. Odom, appearing pro se, appeals the order of the Circuit Court of
    Jefferson County, entered September 26, 2013, that granted summary judgment to Respondent
    Partners for Payment Relief, DE III, LLC, on its complaint against petitioner for unlawful
    retainer of real property. The order also dismissed petitioner’s counterclaim to set aside the
    foreclosure sale of his real property and denied petitioner’s motion to amend his counterclaim
    against respondent. Respondent, by counsel Don C.A. Parker, Bruce M. Jacobs, and Megan E.
    McCullough, filed a response in support of the circuit court’s order. Petitioner filed a reply. On
    appeal, petitioner argues that the circuit court erred in granting summary judgment to respondent.
    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 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.
    Petitioner acquired real property, improved with a residence, at 731 Chickamauga Drive
    in Harpers Ferry, West Virginia (the “subject property”), by deed dated September 29, 2006.
    That same day, petitioner executed a first deed of trust to secure repayment of a $291,700 loan,
    and a second deed of trust to secure repayment of a $72,900 loan. The trustee on the second deed
    of trust was Tasha Keller Catrow. The second deed of trust was ultimately assigned to
    respondent, a Delaware limited liability company. That assignment enabled respondent to
    appoint a substitute trustee for petitioner’s second deed of trust.
    On December 27, 2011, respondent recorded an appointment of successor trustee that
    named Amy J. Haynie, Marc J. Slotnick, and Richard A. Pill as successor trustees on the second
    deed of trust. However, the document contained the following two typographical errors: (1)
    Respondent Partners for Payment Relief, DE III, LLC, was incorrectly listed as “Partners for
    Payment Relief, DIII”; and (2) the initial trustee’s name on the second deed of trust, Tasha Keller
    Catrow, was incorrectly listed as “Tasha Keller Cathrow.”
    1
    On January 25, 2012, the successor trustees, by certified letter, notified petitioner of the
    impending trustees’ sale of his property.1 Additionally, the successor trustees twice published
    notice of the impending sale in a local newspaper.
    On March 5, 2012, Amy J. Haynie, as successor trustee, conducted a foreclosure sale on
    the courthouse steps. Respondent purchased the property for $14,900, subject to the first deed of
    trust. On March 8, 2012, Ms. Haynie issued a trustee’s special warranty deed conveying
    petitioner’s property to respondent. On April 19, 2012, Ms. Haynie completed a “Trustee’s
    Report of Sale Under Deed of Trust” which documented the date, time, and location of the sale;
    the parties to the sale; the property sold; the purchase amount; and the disbursement of monies
    paid.
    On April 25, 2012, petitioner received a “Notice of Quit” which required petitioner to
    vacate the subject property by midnight on May 6, 2012. Nevertheless, petitioner continued to
    occupy the property. On May 2, 2012, respondent filed a complaint for unlawful detainer in the
    magistrate court. Petitioner filed an answer in magistrate court, but, on June 19, 2012, removed
    the case to the circuit court. Petitioner thereafter filed an amended answer and a counterclaim in
    which petitioner, by counsel, alleged the following two claims:
    FIRST CLAIM: Respondents’ appointment of successor trustees was invalid due to
    typographical errors in the appointment of successor trustee document. Accordingly, because
    respondent’s appointment of successor trustees was invalid, the notice of trustee sale which
    named the successor trustees was also invalid. Moreover, because the notice of trustee sale was
    invalid, the trustee’s special warranty deed was also invalid.
    SECOND CLAIM: Respondent violated West Virginia Code § 31-17-2(a)2 by taking an
    assignment of the deed of trust on his property and foreclosing upon it without first being
    licensed as a mortgage entity or debt collector and without being registered with the West
    Virginia Secretary of State.3 West Virginia Code § 31-17-17(a) provides that “if any primary or
    1
    The foreclosure of petitioner’s property stemmed from his failure to make payments on
    his second deed of trust for a period of more than thirty-three months.
    2
    West Virginia Code § 31-17-2(a) is found in the West Virginia Residential Mortgage
    Lender, Broker and Servicer Act, West Virginia Code §§ 31-17-1 to -20, and states as follows:
    A person may not engage in this State in the business of lender or broker unless
    and until he or she first obtains a license to do so from the Commissioner, which
    license remains unexpired, unsuspended and unrevoked, and no foreign
    corporation may engage in business in this State unless it is registered with the
    Secretary of State to transact business in this State.
    3
    In support of this argument, petitioner highlights that he executed the second deed of
    trust to secure repayment of the $72,900 loan obtained from First Guarantee Mortgage
    Corporation of McLean Virginia. At some point thereafter, GMAC Mortgage, LLC began
    (continued . . .)
    2
    subordinate mortgage loan is made in willful violation of the provisions of this article, except as
    a result of a bona fide error, such loan may be canceled . . . .” Further, West Virginia Code § 31­
    17-17(c) provides that “[a]ny residential mortgage loan transaction in violation of this article
    shall be subject to an action, which may be brought . . . by the borrower seeking damages,
    reasonable attorney’s fees and costs.”
    On August 6, 2012, respondent filed a motion seeking summary judgment on its
    complaint for unlawful detainer. On October 9, 2012, petitioner, by counsel, filed a motion to
    dismiss respondent’s action, a motion to set aside the foreclosure sale, and a motion to cancel
    debt.
    On September 26, 2013, the circuit court granted summary judgment in favor of
    respondent with regard to its complaint for unlawful detainer. The circuit court also rejected
    petitioner’s first claim regarding the alleged invalidity of the appointment of successor trustee,
    the notice of trustee sale, and the trustee’s special warranty deed. The circuit court further found
    that petitioner no longer possessed any legal interest in the subject property and, therefore,
    denied petitioner’s motion to set aside the foreclosure sale and the trustee’s special warranty
    deed. Finally, the circuit court denied petitioner’s motion to amend his counterclaim as untimely,
    futile, and unduly prejudicial to respondent given that the proposed amendment introduced an
    entirely new allegation that respondent violated the West Virginia Consumer Credit and
    Protection Act and/or committed the tort of outrage. Accordingly, the circuit court ordered
    petitioner to vacate the property within thirty days.4
    On October 7, 2013, petitioner filed a motion asking the circuit court to reconsider its
    September 26, 2013, order.
    The parties appeared for a status hearing on October 18, 2013, at which time both
    respondent and the circuit court acknowledged that petitioner’s motion to reconsider had been
    filed pursuant to Rule 59(e). Respondent also moved that it be granted summary judgment on
    petitioner’s second claim regarding West Virginia Code § 31-17-2(a).
    On October 24, 2013, petitioner appealed the circuit court’s September 26, 2013, order
    that granted summary judgment on petitioner’s first claim.
    On November 12, 2013, the circuit court granted summary judgment in favor of
    respondent on petitioner’s second claim regarding West Virginia Code § 31-17-2(a). The circuit
    servicing the loan secured by the second deed of trust. Then, on November 10, 2011, the deed of
    trust was assigned to respondent by a corporate assignment deed of trust. Petitioner claims that
    First Guarantee Mortgage Corporation and GMAC Mortgage, LLC are both licensed by the West
    Virginia Commissioner of Banking to engage in the business of mortgage lending or brokering
    and that both are also registered with the West Virginia Secretary of State.
    4
    The September 26, 2013, order did not address petitioner’s first claim for damages
    regarding respondent’s alleged violation of West Virginia Code § 31-17-2(a).
    3
    court found that because respondent did not make the primary or subordinate mortgage loan to
    petitioner, West Virginia Code § 31-17-17(a) did not give rise to a claim for damages pursuant to
    West Virginia Code § 31-17-17(c).
    On June 6, 2014, this Court, in a memorandum decision, dismissed petitioner’s October
    24, 2013, appeal of the circuit court’s September 26, 2013, order that granted summary judgment
    in favor of respondent on petitioner’s first claim. Specifically, this Court found that there was no
    final appealable order given that the circuit court had not yet ruled on petitioner’s Rule 59(e)
    motion to reconsider the September 26, 2013, summary judgment order. See Calvin T. Odom v.
    Partners for Payment Relief, DE III, LLC, No. 13-1092 (W.Va. Supreme Court, June 6,
    2014)(memorandum decision). Thereafter, on July 31, 2014, the circuit court denied petitioner’s
    motion to reconsider the September 26, 2013, summary judgment order. 5
    On August 29, 2014, petitioner filed this appeal regarding the circuit court’s
    September 26, 2013, order granting respondent summary judgment on petitioner’s first claim; the
    November 12, 2013, order granting respondent summary judgment on petitioner’s second claim;
    and the July 31, 2014, order refusing to reconsider the September 26, 2013, order.
    “The standard of review applicable to an appeal from a motion to alter or amend a
    judgment, made pursuant to W. Va. R. Civ. P. 59(e), is the same standard that would apply to the
    underlying judgment upon which the motion is based and from which the appeal to this Court is
    filed.” Syl. Pt. 1, Wickland v. Am. Travellers Life Ins. Co., 
    204 W. Va. 430
    , 431, 
    513 S.E.2d 657
    ,
    658 (1998). We accord a plenary review to the circuit court’s order granting summary judgment:
    “[a] circuit court’s entry of summary judgment is reviewed de novo.” Syl. Pt. 1, Painter v. Peavy,
    
    192 W.Va. 189
    , 
    451 S.E.2d 755
     (1994).
    With these standards in mind, we turn to petitioner’s two assignments of error. In his
    first assignment of error, petitioner argues that the circuit court erred in granting summary
    judgment to respondent, a Delaware corporation, because it is not licensed or registered in West
    Virginia with the Division of Financial Institutions, the Secretary of State, or the Tax
    Department. Petitioner claims that, in the absence of such licensure or registration, respondent
    committed the criminal acts of “obtaining a note through false pretense” in violation of West
    5
    On August 15, 2014, petitioner filed a motion for injunctive relief to stay enforcement
    of the circuit court’s July 31, 2014, order, which denied reconsideration of the circuit court’s
    September 26, 2013, order granting summary judgment to respondent. By order entered October
    14, 2014, the circuit court denied petitioner’s motion for injunctive relief to stay enforcement of
    its orders. In that order, the circuit court noted that petitioner failed to argue any points not
    previously raised in its Rule 59(e) motion that resulted in the July 31, 2014, order. The circuit
    court also opined that petitioner’s motion for injunctive relief was merely “another dilatory
    litigation tactic.” On October 29, 2014, petitioner filed with this Court a “Motion to Request The
    Supreme Court To Set Aside The Decision By The Circuit Court’s Order Denying [Petitioner’s]
    Motion For Injunctive Relief To Stay Any Enforcement of Summary Judgment.” Given that we
    affirm the circuit court’s October 14, 2014, order, herein, we find petitioner’s motion to be moot.
    4
    Virginia Code § 61-2-13, and “extortion and intent to defraud” in violation of West Virginia
    Code §61-3-24, in connection with the sale of the subject property. Petitioner also argues that
    respondent “acquired the note by posing as a mortgage servicer,” which wrongfully allowed
    respondent to see “petitioner’s personal file, which is not available for anyone who attends a
    public auction.” Petitioner also argues that that respondent “violated West Virginia Code [§]
    3lA-1-5 by taking advantage of the lending and investing business and services that are reserved
    for persons who have the authority and power to exercise such privileges in the banking
    industry.” Finally, petitioner argues that respondent’s appointment of a successor trustee was a
    “blatant infraction” of the West Virginia Code.
    Our review of the record on appeal reveals that petitioner failed to properly raise any
    of these arguments before the circuit court. For example, petitioner’s first two arguments,
    regarding West Virginia Code §§ 61-2-13 and -24 and petitioner’s claim that respondent
    wrongfully posed as a mortgage service, were not raised in any fashion before the circuit court.
    As for petitioner’s third argument, regarding respondent’s alleged violation of West Virginia
    Code § 3lA-1-5, the record on appeal reveals that the only time petitioner asserted this claim
    before the circuit court was in a “Response” to respondent’s proposed summary judgment order.
    Petitioner filed that response four days after the circuit court entered its September 26, 2013,
    summary judgment order from which petitioner now appeals. As for petitioner’s fourth
    argument, regarding respondent’s engagement of a successor trustee, it was not pled in
    petitioner’s counterclaim and, therefore, is wholly absent from the order on appeal,
    We have said, “errors assigned for the first time in an appellate court will not be
    regarded in any matter of which the trial court had jurisdiction or which might have been
    remedied in the trial court if objected to there.” Syl. Pt. 17, State v. Thomas, 
    157 W.Va. 640
    , 642,
    
    203 S.E.2d 445
    , 449 (1974). We have also said that “‘[a] litigant may not silently acquiesce to an
    alleged error . . . and then raise that error as a reason for reversal on appeal.’ Syl. Pt. 1, in part,
    Maples v. W. Va. Dep't of Commerce, Div. of Parks and Recreation, 
    197 W.Va. 318
    , 
    475 S.E.2d 410
     (1996).” Syl. Pt. 4, PNGI Charles Town Gaming, LLC v. Reynolds, 
    229 W.Va. 123
    , 125,
    
    727 S.E.2d 799
    , 801 (2011). Consequently, because petitioner failed to raise these arguments
    before the circuit court, we will not address them herein.
    Petitioner’s second assignment of error is that the circuit court erred in granting
    summary judgment in favor of respondent due to the two typographical errors in the substitute
    trustee appointment document. Petitioner claims that those errors caused the notice of trustee sale
    to be defective and, as a result, the resulting trustee’s special warranty deed was likewise
    defective and invalid.
    We have consistently expressed our distain for legal arguments premised upon mere
    typographical errors. See State v. Furner, 
    161 W.Va. 680
    , 
    245 S.E.2d 618
     (1978). Moreover, this
    Court held that that “misspelling of words or typographical errors are not fatal . . . where they do
    not affect the sense, and the meaning of such words can be determined with certainty by a person
    of ordinary intelligence.” Syl., State v. Rudy, 
    98 W.Va. 444
    , 444, 
    127 S.E. 190
    , 190 (1925). We
    have also said that “a sale under a trust deed will not be set aside unless for ‘weighty reasons.’”
    Dennison v. Jack, 
    172 W.Va. 147
    , 157, 
    304 S.E.2d 300
    , 310 (1983), citing Moore v. Hamilton,
    5
    
    151 W.Va. 784
    , 792, 
    155 S.E.2d 877
    , 882 (1967), and Syl. Pt. 2, Corrothers v. Harris, 
    23 W.Va. 177
    , 182 (1883).
    Importantly, in this case, the notice of trustee’s sale accurately identified the deed of
    trust and the original trustee therein, the property to be sold, the names of the trustees conducting
    the sale, and the date and time of the sale. The notice also referenced the successor trustee
    appointment and included the appointment’s trust deed book number and page. By referring back
    to the deed of trust and the substitute trustee appointment document, it was clear that “Partners
    for Payment Relief DIII” was simply a typographical error, as was the addition of the letter “h”
    in Ms. Catrow’s name. Thus, the notice of trustee’s sale satisfied the precise purpose this Court
    announced in Syllabus Point 2 of Russell v. Webster Springs National Bank, 
    164 W.Va. 708
    ,
    708, 
    265 S.E.2d 762
    , 762 (1980):
    The object of a notice of a trustee’s sale is to secure bidders by informing the
    public of the nature and condition of the property to be sold, and of the time, place
    and terms of sale so as to prevent a sacrifice of the property. If these objects are
    attained, immaterial errors will not affect the sufficiency of the notice or the sale
    made pursuant thereto.
    Therefore, the two typographical errors in the appointment of successor trustee document
    were clearly immaterial and, as such, did not affect the sufficiency of the notice of trustee sale or
    the resulting trustee’s special warranty deed. Accordingly, because we find no merit in this
    assignment of error, we find that the circuit court did not err in awarding summary judgment to
    respondent.
    For the foregoing reasons, we affirm the circuit court’s September 26, 2013, order.
    Affirmed.
    ISSUED: June 12, 2015
    CONCURRED IN BY:
    Chief Justice Margaret L. Workman
    Justice Robin Jean Davis
    Justice Brent D. Benjamin
    Justice Menis E. Ketchum
    Justice Allen H. Loughry II
    6