Bank of America, N.A. v. DeVaughn et al
Filing
3
DEFAULT JUDGMENT, in accordance with the 2 order, it is the ORDER, JUDGMENT and DECREE of the Court as follows: (1) the United States Bankruptcy Judge's report and recommendation ( 1 -5) plaintiff's motion for default judgment ( 1 -4) is ADOPTED; (2) in accordance with the Default Judgment ORDERING, as further set out in order; this matter is hereby disposed; directing the clerk to enter this document on the civil docket as a final judgment pursuant to Rule 58 FRCP. Signed by Honorable Judge Mark E. Fuller on 11/30/12. (Attachments: # 1 civil appeals checklist)(djy, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
BANK OF AMERICA, N.A., as successor
by merger to BAC Home Loans Servicing,
L.P. f/k/a Countrywide Home Loans
Servicing, L.P.,
Plaintiff,
v.
JANICE DEVAUGHN, et al.,
Defendants.
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CASE NO. 2:12-cv-0853-MEF
DEFAULT JUDGMENT
In accordance with the Order (Doc. #2) issued on November 29, 2012, it is the
ORDER, JUDGMENT, and DECREE of the Court as follows:
(1)
The United States Bankruptcy Judge’s Report and Recommendation (Doc. #1-
5) that Plaintiff’s Motion for Default Judgment (Doc. #1-4) is ADOPTED.
(2)
In accordance with the Default Judgment, it is further ordered as follows:
a.
The Quitclaim Deed dated March 28, 2003 and recorded in the Chilton
County Judge of Probate’s Office (the “Probate Office”) in Real Property Book 289,
Page 0005 (“Deed 4”) does not reflect the true intent of the parties due to mutual
mistake of the parties, or mistake on the part of one party which the other party knew
or suspected. Deed 4 does not contain a full description of the property to be
conveyed. Due to mutual mistake of the parties or by mistake on the part of one party
which the other party knew or suspected, Defendant Margaret Devaughn has
erroneously retained an interest in property which the parties did not intend for her to
retain an interest. Margaret DeVaughn has not defrauded the Plaintiff, BAC Home
Loans Servicing, L.P., f/k/a Countrywide Home Loans Servicing, L.P. (BOA). No
monetary judgment is entered against Margaret DeVaughn.
b.
As a remote grantee, BOA is entitled to reform Deed 4 under Ala. Code
§§ 35-4-150 to 153. An interest in part of the property that was intended to be
encumbered by the Mortgage (hereinafter defined) is held by Margaret Devaughn due
to the above referenced mutual mistake of the parties or mistake on the part of one
party which the other party knew or suspected. (See Complaint Seeking Reformation
of Deeds and Mortgages, Doc. #1-2, at ¶¶ 48–50).
c.
The Mortgage dated August 21, 2007 and recorded in the Probate Office
in Real Property Book 2007, Page 134781 (“Mortgage”) does not reflect the true
intent of the parties due to mutual mistake of the parties. The Mortgage does not
contain a full description of the property the parties intended to encumber. Due to the
mutual mistake of the parties the Mortgage encumbers only part of the property to be
encumbered.
d.
Despite the parties’ intentions, the Mortgage notary acknowledgment
also omits Ocie DeVaughn’s name.
e.
By virtue of the Assignment recorded in the Chilton County Probate
Office in Real Property Book 2011, Page 167200, BOA and Ocie DeVaughn intended
that BOA be granted an interest in the surveyed property. The Mortgage does not
encumber the entirety of the property the parties agreed to encumber by mutual
mistake.
Accordingly, the Quitclaim Deed dated March 28, 2003 and recorded in the Chilton
County Probate office in Probate Office in Real Property Book 289, Page 0005 (a/k/a Deed
4) is reformed to read, in the property description, in full:
A lot or parcel of land lying and being in the NE ¼ of the SE ¼, Section
24, Township 21, Range 14, Chilton County, Alabama, being more
particularly described as follows: Begin at the SW corner of said quarterquarter and run thence E along the S line of said quarter-quarter a
distance of 500 feet to a point; said point being the point of beginning of
the property herein described; from the point of beginning thus
established continue E along the S line of said quarter-quarter a distance
of 200 feet to a point; thence run N a distance of 300 feet to a point; thence
run W 200 feet to a point; thence run S a distance of 300 feet to a point;
it being the intention of grantors to convey unto grantees a rectangular
shaped parcel of property adjoining the E side of that parcel of land
heretofore conveyed by grantors to grantees as recorded in Book 616 at
Page 592, Chilton County Probate Office.
A lot or parcel of land lying and being in the NE ¼ of the SE ¼ of Section
24, Township 21, Range 14, Chilton County, Alabama, being more
particularly described as follows: Begin at the SW corner of said quarterquarter and run thence E along the S line of said quarter-quarter a
distance of 500 feet to a point; thence run N a distance of 300 feet to a
point; thence run W a distance of 500 feet to a point on the W line of said
quarter-quarter; thence run S along the W line of said quarter-quarter a
distance of 300 feet to the point of beginning. Said parcel containing 3
acres, more or less.
And, the Mortgage dated August 21, 2007 and recorded in the Chilton County Probate
Office in Real Property Book 2007, Page 134781 (a/k/a the Mortgage) is reformed to read, in the
property description, in full:
From the Southeast Corner of the Northeast ¼ of the Southeast ¼, Section
24, Township 21-North, Range 14-East, Chilton County, Alabama, run
along a fence N-88<31’20”W for 620.0 feet to a fence corner post and the
beginning point of the lot here described; from said point continue said
course along a fence 193.09 feet; thence continue along said fence N88<40’56”W for 283.35 feet to a fence corner; thence continue along an
extension of said fence, if extended same said course for 213.96 feet to the
East right of way line of County Road 391; thence run along said right of
way line N-03<19’47”E for 64 feet to a point on the North side of the drive
leading to the DeVaughn Residence; thence leaving said road run S84<03’06”E for 17.76 feet to a 4” iron post on the South side of a gate and
also being on the North side of an iron cattlegap; thence run N-76<39’17”E
for 469.84 feet to a point at a wood fence corner; thence run along a wood
fence N-22°06’42”W for 48.14 feet to a fence corner post; thence run
along a Wood fence N-83<25’49”E for 240.76 feet to a fence corner; thence
run along a metal fence S-02<04’32”W for 259.23 feet, back to the point
of beginning. Containing 2.57 acres, more or less.
The Mortgage is also reformed to include Ocie DeVaughn’s name in the notary acknowledgment.
Finally, by executing this Order, the Court authorizes the plaintiff to file this Order
reforming the Deed and Mortgage in the Office of the Judge of Probate, Chilton County, Alabama.
This matter is hereby disposed.
The clerk of the court is directed to enter this document on the civil docket as a
final judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure.
DONE this the 30th day of November, 2012.
/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE
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