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Spartanburg, SC Real Estate Litigation Nightmare

May. 21, 2008

STATE OF SOUTH CAROLINA )      IN THE COURT OF COMMON PLEAS

COUNTY OF SPARTANBURG    )


HGM ENTERPRISES, LLC,                     )

                                                                      )        C.A. NO.: 2006-CP-42-2998

          PLAINTIFF,                                      )

                                                                     )

                 VS.                                              )

                                                                     )       PLAINTIFF’S MEMORANDUM IN

DOUGLAS C. BRACKETT,                     )      SUPPORT OF SUMMARY JUDGMENT

DOROTHY M. BRACKETT,                   )

LINDA D. FINLEY, AND                          )

WACHOVIA BANK, N.A.                         )

SUCCESSOR TO FIRST UNION          )

HOME EQUITY CORPORTAION         )

                                                                     )

         DEFENDANTS.                                )

__________________________________ )


Plaintiff hereby submits this memorandum, as well as the exhibits and depositions filed herewith, in support of Plaintiff’s motion for summary judgment. These materials are also submitted opposition to the motions for summary judgment by Defendants.

Introduction/Overview

This is an action in which the Court is requested to quiet title in Plaintiff and remove any cloud as to title to the house and land located at 1145 Maryland Avenue in Spartanburg County. Plaintiff bid on and purchased the house and land at the foreclosure sale. At the time of the advertisement and foreclosure sale, there was only one street address and one tax map number for the property at 1145 Maryland Avenue, and the real property includes one house and a total of two and one-half lots (one half of lot 13, lots 14 and 15, See Exhibit 1, Survey). The driveway is on the one-half of lot 13, the house is on lot 14, and lot 15 is vacant. Plaintiff paid $35,000.00 at the foreclosure sale in July, 2005, and has spent substantial time, effort and materials in improving the property. At all times pertinent hereto, the Plaintiff has had exclusive possession of the property, has had the keys to the property, has insured the property, has maintained and improved the property, has made arrangements for and paid all utilities at the property, and has paid the taxes on the property.

Defendants Douglas C. Brackett and Dorothy M. Brackett live right next door to the property at 1145 Maryland Avenue. While Plaintiff was early in the investigation, purchase and renovation process, Defendant Brackett inquired about buying the property at 1145 Maryland Avenue. Plaintiff and Defendant Douglas C. Brackett eventually entered into a written contract for Douglas C. Brackett to purchase the property at 1145 Maryland Avenue for the sum of $45,000.00. Defendant Brackett testified he intended to purchase all the adjacent property located next door at 1145 Maryland Avenue (Brackett Deposition, Page 20). Defendant Brackett designated attorney Albert Smith in Spartanburg to close the transaction. During this process, Defendant Brackett learned that there was a possible issue with the foreclosure deed to Plaintiff. Defendant Brackett, who is on the Spartanburg Planning Commission, also went and personally reviewed the ROD and tax records. He admittedly had conversations with Albert Smith and/or the paralegal at Albert Smith’s office, although his sworn testimony is contradictory on what he was advised by the attorney’s office.

Thereafter, Defendant Brackett did not close with Plaintiff. Instead, Defendant Brackett eventually was in contact with the prior owner, Defendant Linda D. Finley. He advised her that there was money left over from the foreclosure sale, and Defendant Finley went to the Court and collected over $11,000.00 in surplus funds from the foreclosure sale. This was the surplus funds from Plaintiff’s foreclosure bid for the house and land after the mortgage holder had been paid in full. Defendant Finley admits she understood this was the money generated by the sale of the house at the foreclosure sale (Finley Deposition, Page 44).

Defendant Brackett then took Defendant Finley to Probate Court and re-opened the probate file of Defendant Linda D. Finley’s husband. Documents were filed at the Probate Court, under oath, stating that one and one-half lots were omitted from the prior estate file. In the re-opened estate file, Defendant Finley stated under oath that the one and one-half lots in question had only a value of $1,800.00. Defendant Finley then signed a deed of distribution to herself on the one and one-half lots, which in reality are the one and one-half lots which include the driveway and home at 1145 Maryland Avenue. Defendant Finley testified she never would have signed these estate documents if she knew the house was involved. (Finley Deposition, Pages 56-59).

Defendant Brackett then switched from attorney Albert Smith in Spartanburg to attorney Jerry Gaines in Greenville for a closing with Defendant Finley. Defendant Brackett paid Defendant Finley the sum of $1,800.00 for a deed referencing the one and one-half lots. Defendant Finley has testified she never would have signed the closing documents if she knew the house was involved. Nevertheless, Defendant Brackett now asserts he owns the one and one-half lots, including the renovated house and the driveway located at 1145 Maryland Avenue. Defendant Brackett has also testified under oath that despite the fact he assisted Defendant Finley in going to Probate Court and paid the probate court fees, despite the fact he reviewed the public records himself, despite the fact he knew of a problem based on communications with Albert Smith’s office, and despite the fact he switched from attorney Albert Smith in Spartanburg to attorney Jerry Gaines in Greenville-- that no one ever advised him, and he never knew, that the one and one-half lots in question included the house and driveway right next door to his house. (Brackett Deposition, Pages 49, 52-55, 62, 64). He testified he only learned this when he had a survey done sometime following the closing at the Greenville attorney’s office. (Brackett Deposition, Page 66). He testified he now is fortuitously the owner of the house at the price of $1,800.00 because “God is good.” (Brackett Deposition, Page 55). In addition to paying the Probate Court costs, Defendant Brackett is also paying Defendant Finley’s attorney’s fees in this case (Finley Deposition, Page 76).

Plaintiff has attempted to subpoena the files and schedule the depositions of both attorneys Albert Smith and Jerry Gaines, as well as the paralegal in Albert Smith’s office. However, Defendant Brackett has objected to the subpoenas and depositions, leading to Plaintiff’s motion to compel discovery which will be addressed separately.

Factual Background

Title History

It is necessary to review in detail the title history to the real property in order to understand this matter. The real property and house have been in the Finley family for over fifty years. During this time, there was one street address and one tax map number for the two and one-half lots and the house, and this remained the situation until sometime after the foreclosure sale at which Plaintiff purchased the property. The Finleys never subdivided or conveyed individually any of the lots, and there is only one house and it sits on lot 14 with the driveway on the one-half of lot 13. (Exhibit 1).

In 1966, Ethel Finley, the owner of the property at 1145 Maryland Avenue, died intestate. Her probate file shows her heirs were her husband and two sons, Alfred M. Finley, Sr., Alfred M. Finley, Jr. and Cecil Finley. Her estate file references one lot and one house at 1145 Maryland Avenue (Exhibit 3). As noted, there are actually two and one-half lots at 1145 Maryland Avenue, but the family apparently treated it regularly as one lot and one house.

Following their mother’s death in 1966, both sons in 1970 signed deeds to their father, and their father at the same time deeded the real property back to son Cecil Finley, reserving a life estate for himself (Exhibit 4, three deeds). These deeds each reference the two and one-half lots. Accordingly, at this time in 1970, the father owned a life estate and son Cecil owned the remainder interest in the property at 1145 Maryland Avenue.

In 1975, son Cecil Finley died intestate, leaving as his sole heirs his father and brother-- Alfred M. Finley, Sr. and Alfred M. Finley, Jr. The estate file for Cecil Finley references the real property as being located at 1145 Maryland Avenue and verifies that the father had a life estate and Cecil Finley had a remainder interest (Exhibit 5, Cecil Finley estate documents). The Cecil Finley estate documents reference the real property as one lot, at an address of 1145 Maryland Avenue, reference number 7-09-13-130-00, with a value of $14,000.00 in 1975 (see exhibit 5 documents). In the estate file for Cecil Finley, brother Alfred M. Finley, Jr. disclaimed all interest in the personal property (see exhibit 5 documents). Alfred M. Finley, Jr. also at that time signed a deed to his father, Alfred M. Finley, Sr., on the real property (Exhibit 6). The deed references this as the same property being inherited from the estate of Cecil Finley.

Subsequently, in 1979, the father Alfred M. Finley, Sr. died testate, leaving all property to his son Alfred M. Finley, Jr. The estate file for Alfred M. Finley, Sr. shows the real property as a lot and house located at 1145 Maryland Avenue, with a value of $25,000.00 at one point, and $26,500.00 at another point in the estate file (Exhibit 7, Alfred M. Finley, Sr. estate documents). The file shows only one street address and one tax map number for the real property, and it also references the lot numbers in the estate file (Exhibit 7).

Then, in 1987, Albert M. Finley, Jr. and Defendant Linda D. Finley signed a mortgage to First Union Home Equity Mortgage Corporation in the amount of $26,000.00 (Exhibit 8). Rather than use an attorney, the bank closed the loan in-house without an attorney. The mortgage states “This is the same property inherited by the Mortgagor from the estates of Alfred Mack Finley, Sr., Probate File 35436; Cecil Jack Finley, Probate File 3113, Probate Court for Spartanburg County, South Carolina,….” (Exhibit 8) The mortgage also specifically lists the property address of the mortgaged premises as 1145 Maryland Avenue. The only home and property located at the 1145 Maryland Avenue address is the two and one-half lots, not just lot 15.

In 2003, Albert M. Finley, Jr. died testate, leaving Defendant Linda D. Finley as his sole beneficiary. There was an estate file opened at that time (hereafter 2003 Estate), and Defendant Linda D. Finley was the personal representative and filed all pertinent estate papers in 2003. She listed the estate as including real estate valued at $50,000.00 (Exhibit 9). Linda Finley testified at her deposition that the $50,000.00 value referred to all the property located at 1145 Maryland Avenue (Finley Deposition, Pages 30-31). Defendant Finley then signed a handwritten deed of distribution to herself, which included the tax map number for the house and the two and one-half lots, but only mentioned by number lot 15 (Exhibit 10). Defendant Finley testified she believed the deed of distribution transferred all the property at 1145 Maryland Avenue to her (Finley Deposition, Pages 32-33). Defendant Finley then signed the probate documents under oath certifying that she had disbursed and distributed the entire estate (Exhibit 9). She testified that she thought the 2003 estate process resulted in all the property at 1145 Maryland Avenue being transferred to her (Finley Deposition, Pages 32-34). She then continued to live in the house and pay taxes and insurance on the house and land. In August, 2004, she moved out of the house because she could no longer afford the payments. She testified she understood the bank would foreclose the mortgage and she would lose the house. (Finley Deposition, Pages 35-36). She testified that by moving out, she was basically just letting the house go (Finley Deposition, Pages 35-36).

In 2005, Defendant Wachovia Bank commenced the formal foreclosure process. The bank filed a lis pendens which states in part, that “This is the same property inherited by Alfred M. Finley, Jr. from the estates of Alfred Mack Finley, Sr., Probate File 35436; Cecil Jack Finley, Probate File 3113, Probate Court for Spartanburg County, South Carolina, and thereafter by deed of distribution to Linda D. Finley dated May 9, 2003 and recorded September 19, 2003 in Deed Book 78 at Page 993.” The lis pendens also lists the TMS Number as 7-091313000 (Exhibit 11). The bank mailed notices to Defendant Finley listing the property address involved in the litigation as 1145 Maryland Avenue (Exhibit 12). The foreclosure order, which is drafted by foreclosure counsel, references the fact that the property was inherited by Defendant Linda Finley as shown by the estate of Alfred M. Finley, Jr. (Exhibit 13, Order Page 3, Paragraph 11). The Order also directs the sheriff to eject and remove from the premises the occupant of the property and remove all their personal property from the premises (Exhibit 13, Order Page 8, Paragraph 9). The Order also foreclosed all right, title, interest and equity of Linda Finley in the premises sold (Exhibit 13; Order Page 8, Paragraph 10). The Order also states “This is the same property inherited by Alfred M. Finley, Jr. from the estates of Alfred Mack Finley, Sr., Probate File 35436; Cecil Jack Finley, Probate File 3113, Probate Court for Spartanburg County, South Carolina and thereafter by Deed of Distribution to Linda D. Finley dated May 9, 2003 and recorded September 19, 2003 in Deed Book 78 at Page 993. TMS No.: 7-091313000” (Exhibit

14 Order, Page 9). The notice of sale to be published contains the same information regarding the property (Exhibit 13).

At the foreclosure sale, Plaintiff was high bidder at the price of $35,000.00. Plaintiff stated he learned of the property through the Master in Equity’s website. He reviewed the court order as he normally does (Meng Deposition, Page 9) and he thought he was buying everything with the house on it based on the tax map number and the title references involving the family (Meng Deposition, Page 15). He did review the tax map number and tax records referenced in the court order and verified that the tax records included the house, and he believed he was paying for and buying the house when he bid at the foreclosure sale. (Meng Deposition, Pages 83-84).

Plaintiff then received a deed from the Master in Equity which also includes the language that it is the same property inherited from the estates, it has a tax map number of 7-09-13-130.00, and the property address is 1145 Maryland Avenue, Spartanburg, South Carolina 29302. (Exhibit 15, foreclosure deed). Plaintiff then commenced the process of beginning to renovate the property and sell it.

When Plaintiff was first considering acquiring the property and beginning to work on it, Defendant Brackett, the next door neighbor, expressed an interest in buying the property from Plaintiff. Defendant Brackett possibly had a daughter moving from Texas who was going to live in the house (Brackett Deposition, Page 26). It is noteworthy that Defendant Brackett has been a member of the Spartanburg Planning Commission for twenty-three years, and has a Master’s Degree in Education Administration (Brackett Deposition, Pages 9 and 10). He and/or his wife own two and one-half lots next door, with lot 11 being vacant and lots 12 and one-half of lot 13 containing their house. The Bracketts had purchased lot 11 at a previous time to expand their yard (Brackett Deposition, Page 13). Additionally, prior to the death of Albert M. Finley, Jr., and due to Mr. Finley’s declining health, Defendant Brackett helped cut the yard at 1145 Maryland Avenue as he had a riding lawnmower (Brackett Deposition, Pages 15-17). Defendant Brackett acknowledges that the two and one-half lots owned by he and his wife are approximately the same size as the two and one-half lots at 1145 Maryland Avenue (Brackett Deposition, Page 17).

Doug Brackett discussed with Plaintiff buying the property, and admits he intended to buy everything at 1145 Maryland Avenue, including the two and one-half lots (Brackett Deposition, Page 20). They negotiated the matter and eventually agreed upon a price of $45,000.00, and signed a written sales contract (Exhibit 16). Doug Brackett contacted attorney Albert Smith to handle the closing, and contacted Palmetto Bank to furnish a loan. He obtained loan approval for a $42,000.00 loan (Exhibit 17). Defendant Brackett never closed the transaction with Plaintiff, and Plaintiff testified that Defendant Brackett indicated to him that Brackett had found investment property elsewhere (Meng Deposition, Page 58).

As previously mentioned, Defendant Brackett eventually obtained a deed from Linda Finley which on its face purports to transfer one-half of lot 13 and lot 14, which lots include the house and driveway. Defendant Brackett was adamant at the end of his deposition that he never knew until after the closing with Linda Finley that the one and one-half lots involved the house. However, early in the deposition he admitted Albert Smith’s office told him “the house was not on the property or something to that effect, that he couldn’t legally close” (Brackett Deposition, Page 33). He admits he advised Linda Finley that she had money she could obtain from the foreclosure sale, and she went to the master in equity and in fact received a check for over $11,000.00.

The discovery documents also show that she signed a contract with Defendant Brackett on February 11, 2006 to transfer to him one and one-half lots for $1.00 (Exhibit 18). The notes from attorney Albert Smith’s file show that Albert Smith questioned his paralegal, who is named Queen, regarding the location of the house:

February 20, 2006: Queen: call over to the Assessor’s office and speak with Barbara Ann. Tell her to look block map number 7-9-13-130.00 and we are looking at lots 14, 15 and 25 feet of lot 13 and see if she can tell us which lot the house is located on and we might need to correct the real estate deed of distribution to Linda out of Alfred Mack Finley, Jr. Tell her to see if she can tell us anything on those lots. Let me know and we will get Doug in here and see what we need to do. That is probably going to be a little expensive for that. I will tell him that when I get him in here after we have the information from Barbara Ann. (Exhibit 19).


The paralegal responded to the attorney on February 24, 2006 as follows:


Albert: “Barbara Ann at the Assessor’s office said that 1145 Maryland Avenue is sitting on lot 14; lot 15 belongs to HGM Enterprises. Lot 15 does not show anything one [sic] it. She stated that looking at the county map the house is definitely sitting on lot 14.” (Exhibit 20).


Shortly after these notes in the attorney’s file, Doug Brackett ceased dealing with attorney Albert Smith and switched to attorney Jerry Gaines in Greenville. Doug Brackett thereafter picked Linda Finley up and drove her to Probate Court to re-open the estate file, and he paid the Probate Court costs for her in the re-opened estate proceeding (Finley Deposition, Pages 56, 62). The second probate process (2006 Estate) involved a verified petition showing one and one-half lots at 1145 Maryland Avenue, with a value “to be determined” (Exhibit 21). The subsequently filed Verified Inventory and Appraisement shows a value of only $1,800.00 (Exhibit 21). Linda Finley then prepared and signed a deed of distribution to herself purporting to convey one-half of lot 13 and lot 14 (Exhibit 22).

This deed of distribution was recorded on May 1, 2006. Defendant Brackett and Linda Finley thereafter attended a closing at attorney Jerry Gaines office in Greenville. The settlement statement shows a sales price of $1,800.00 for property located at 1145 Maryland Avenue (Exhibit 23). Linda Finley signed a closing affidavit stating title was not disputed and she knew of no reason it could be disputed (Exhibit 23). The deed from her to the Bracketts shows the property tax map number as “P/O 7-09-13-130.00” (Exhibit 24).

When Defendant Finley was questioned at her deposition about the fact that the house sits on this one and one-half lot, she denied that she had any knowledge at that time that the house was involved (Finley Deposition, Pages 54, 57-60, 68-71). In fact, she expressly testified she would not have signed the 2006 probate documents nor the closing documents if she knew the documents had anything to do with the house (Finley Deposition, Pages 58-59, 70-71). Defendant Finley testified she was surprised that Defendant Brackett would now take the position he bought the house from her for $1,800.00 (Finley Deposition, Page 76). Defendant Finley clearly understood the house was sold at foreclosure, and she had no right or ability to sell it again.

Defendant Brackett testified that he also thought he was only buying vacant lots from Finley and it was only when he had a survey done, dated June 20, 2006, that he learned the house was on lot 14 and the driveway on lot 13 (Exhibit 25, Survey dated June 20, 2006, Brackett Deposition, Pages 55,62, 64). Defendant Brackett claims he then notified Plaintiff that he owned part of Lot 13—he did not explain why he did not tell him about Lot 14 with the house on it. This lawsuit followed, and Defendant Brackett is paying his attorney’s fees and Defendant Finley’s attorney’s fees in an effort to become the owner of the house and driveway for a price of only $1,800.

Legal Principles

Before setting forth Plaintiff’s arguments, it is necessary to first review the applicable legal principles. The Court is statutorily empowered to quiet title to real estate and remove clouds on title. S.C. Code Ann. Section 15-67-10 (Lawyers Co-Op. 2005). A cloud on title is a claim that is perhaps valid on its face, but extrinsic evidence shows it to be invalid. Wilson v. Moseley, 327 S.C. 144, 488 S.E.2d 862, (1997), Freeman v. Colwell Mortgage Corp., 297 S.C. 335, 377 S.E.2d 108 (Ct. App. 1989).

In construing deeds, the cardinal rule of construction is to ascertain and effectuate the intent of the parties unless the intent contravenes some well settled rule of law or public policy. Estate of Sherman v. Estate of Sherman, 359 S.C. 407, 597 S.E.2d 850 (Ct. App. 2004). Effect ought to be given to all the words of a deed. Holliday v. Jordan, 112 S.C. 113, 99 S.E.2d 465 (1919). Furthermore, the parties to a deed are presumed to intend the grant of everything necessary to enjoy the rights conveyed. McManaway v. Clapp, 150 S.C. 249, 148 S.E. 18 (1929).

A deed capable of more than one construction is construed most strongly against the grantor, and whether an ambiguity exists is determined by reading the deed in light of all the circumstances surrounding the parties at the time it was executed and their subsequent conduct. Williams v. Bruton, 121 S.C. 30, 113 S.E.2d 319 (1922). Likewise, the land intended to be conveyed by an ambiguous description will be ascertained by reading the deed in light of the circumstances under which it was executed, and in light of the subsequent conduct of the parties relative to it. Stephens v. Long, 92 S.C. 65, 75 S.E. 530 (1912). Furthermore, and most importantly, it has been held that:

When the provisions of a deed are susceptible of two interpretations, one of which recognizes a legal and moral obligation, resting upon the grantor towards a third person, while the other savors the wrong and fraud on his part, the presumption is that he intended to act in accordance with the moral law and the rights of such third person.


Bell v. Gardner & Lacey Lumber Co., 85 S.C. 182, 67 S.E. 151 (1910).

Whether to set aside a deed on grounds of fraud or inadequate consideration depends upon the facts of the particular case. Owens v. Sweat, 227 S.C. 112, 86 S.E.2d 886 (1955). Extrinsic evidence can be used to reach and support a decision regarding the description in a deed and mortgage. Coleman v. Gaskins, 165 S.C. 301, 163 S.E. 790 (1932). Finally, a contract or deed may be rescinded on the ground of mutual mistake where the parties have made a common mistake of fact causing each to do what neither intended. Brenco v. SCDOT, 363 S.C. 136, 609 S.E.2d 531 (Ct. App. 2005). Furthermore, where there is extreme inadequacy of price, equity may intervene. “Additionally, where the inadequacy does not stand alone, but is accompanied by other inequitable incidents, the relief is much more readily granted.” Holly Hill Lumber Co., Inc. vs. McCoy, 201 S.C. 427, 23 S.E.2d 372 (1942).

Argument

In 1987, Defendant Linda Finley and her husband mortgaged their house and land for a home equity line. The property in question, located at 1145 Maryland Avenue, had been the family home for over fifty years. Defendant Linda Finley has testified she understood the house was put at risk by entering into this transaction, and in fact, she was opposed to the home equity loan transaction for this reason (Finley Deposition, Pages 22-23). She would have preferred to obtain a short term unsecured loan (Finley Deposition, Page 23). However, the transaction did go forward.

Not only did Mrs. Finley and her husband intend to put the house and land up for collateral, the evidence establishes the bank intended to take the land and house as collateral. The bank had an estimate of value prepared as to the home in 1987, and it clearly shows the house was involved in the transaction as collateral (Exhibit 8). When the bank went to foreclose in 2004, its Market Value Analysis again includes the house (Exhibit 11). Additionally, it would be rather ludicrous for a home equity line mortgage not to involve a home. After her husband died, Mrs. Finley eventually moved out of the house because she could not afford the payments. She understood she would lose the house via the foreclosure process (Finley Deposition, Pages 35-36). If the loan did not involve the house, there would have been no need for her to move out because she would not be losing the house. Her conduct is compelling extrinsic evidence of her intent and understanding. Furthermore, after the foreclosure sale, she went and collected over $11,000.00 from the sales proceeds after the bank’s mortgage was paid in full. Her actions clearly demonstrate she knew the house secured the loan and that the house was being lost via the foreclosure process.

Plaintiff, as the successful bidder at the foreclosure sale, took immediate possession of the property. Plaintiff insured the property, had the locks changed, had the utilities connected in his name, and eventually started renovating the property. Prior to extensive renovations, Defendant Brackett agreed to buy the property, which included the house, for $45,000.00. Defendant Brackett never closed with Plaintiff, and Plaintiff then performed more extensive renovations. Defendant Brackett, who stood by and watched all this, now claims he owns the house and land, for the sum of $1,800.00. He also has testified he did not know he was buying the house for this price, he only thought he was buying vacant land. However, he now claims he is entitled to the house and he gets a windfall because “God is good.”

Plaintiff is entitled to prevail in this matter, as a matter of law, for several reasons:

a) The Mortgage and Foreclosure Deed included the house and all land at 1145 Maryland Avenue, and Defendant Finley retained no interest to convey following the foreclosure sale.


The legal principles set forth previously regarding the construction and interpretation of deeds are controlling here. In this case, one also has to look at the mortgage, and the circumstances surrounding it, as it forms the basis for the eventual deed signed by the master in equity on behalf of owner Linda Finley. Here, the Finley family owned this family home and property for over fifty years. The house and land was located at 1145 Maryland Avenue—with only one address, one house, and one tax map number. Linda Finley and her husband signed a home equity line mortgage to the bank. Logically, a home equity line mortgage would involve a home. The bank’s loan file demonstrates it at all times considered the home as collateral. Linda Finley admitted she knew the mortgage included the house and carried a risk of losing the house in the event of non-payment—that is why she would have preferred a short term non-secured loan.

Later, when she could not afford the home, she moved out. She admitted she knew it would be sold and lost through foreclosure. The foreclosure order includes provisions for any occupants to be removed by the sheriff, and their possessions removed from the property. The foreclosure order bars all rights and claims by Finley to the property. Moreover, Finley affirmed the sale by later collecting the $11,000 in excess funds generated by the sale of the house at the foreclosure sale. Simply stated, Finley did not retain any right or title in the house to later convey to the Bracketts.

Furthermore, to the extent the deed is ambiguous in not mentioning the other one and one-half lots by number; then the title history, the house address, the tax map number, and the confirmation that this is the same property involved in the several Finley estates, all dictate that this ambiguity be construed against the grantor and in favor of all the property being included in the mortgage and foreclosure deed. As noted in the case law:

When the provisions of a deed are susceptible of two interpretations, one of which recognizes a legal and moral obligation, resting upon the grantor towards a third person, while the other savors the wrong and fraud on his part, the presumption is that he intended to act in accordance with the moral law and the rights of such third person.


Bell v. Gardner & Lacey Lumber Co., 85 S.C. 182, 67 S.E. 151 (1910).


Finally, in the event the Court were to hold the mortgage and foreclosure deed did not include the house and land, then the Court should reform the mortgage and deed to include the house and land and relate the reformation back to the mortgage date.


b) The deeds from Finley to Finley in the reopened estate and from Finley to Brackett are void based upon mutual mistake.


Finley testified she never would have signed the 2006 estate papers, the deed to Brackett, or the closing documents with Brackett if she knew or thought the house was involved in this matter (Finley Deposition, Pages 58-59, 70-71). Brackett has testified he believed Finley only still owned and was conveying to him only vacant lots, not the house. Given this sworn testimony by both buyer and seller, there was a clear and undisputable mutual mistake requiring cancellation of the deed from Finley to Brackett. A contract or deed may be rescinded on the ground of mutual mistake where the parties have made a common mistake of fact causing each to do what neither intended. Brenco v. SCDOT, 363 S.C. 136, 609 S.E.2d 531 (Ct. App. 2005).


c) The deeds from Finley to Finley and Finley to Brackett are void due to misrepresentation and fraud upon the Probate Court.


The re-opened Probate Court file contains sworn statements that the property involved in the subsequent estate file was only one and one-half lots valued at $1,800.00. No reference was made at all to a house or the value of the house, and the value of the house was admittedly included in the $50,000 figure in the first estate file. The new representations to the Probate Court as to assets and value were misrepresentations and false. The ensuing two deeds are invalid based upon the misrepresentations and fraud upon the Probate Court.

 

d) The inadequacy of consideration, particularly when viewed in light of the totality of the circumstances, warrants setting aside the deed from Finley to Brackett.


While there is no bright line rule in South Carolina, it has been recognized in judicial sales cases that sales prices that are ten percent or less of the value are so grossly inadequate that they shock the conscience of the Court. Eastern Savings Bank v. Sanders, 373 S.C. 349, 644 S.E.2d 802 (Ct. App. 2007). Defendant Brackett now claims he purchased for $1,800.00 what he previously agreed to buy for $45,000.00. Defendant Finley testified the house was worth $30,000.00 to $35,000.00. The 2003 estate file showed a value of $50,000. The tax records show a value of $47,000.00 in 2004. Whichever figure is utilized, $1,800.00 is much less than ten percent of the property value. Moreover, on the flip side, if it were held Plaintiff paid $35,000.00 for one vacant lot, he overpaid by several hundred percent.

Furthermore, the grossly inadequate consideration does not stand alone in this case. The other surrounding factors certainly warrant the Court granting Plaintiff relief in this matter. This includes all the pre-foreclosure and post-foreclosure events as set forth previously herein. As noted by our supreme court, “where the inadequacy does not stand alone, but is accompanied by other inequitable incidents, the relief is much more readily granted.” Holly Hill Lumber Co., Inc. vs. McCoy, 201 S.C. 427, 23 S.E.2d 372 (1942).

Plaintiff also notes that there was not a meeting of the minds as to what was being conveyed if neither party intended to convey or receive improved property with a house on it.


Conclusion

The Court in this matter will necessarily make a decision quieting title to the house and land in either Plaintiff or Defendant Brackett, and holding that the losing party did no more than create a cloud on the title—which cloud will be removed by the Court. On the one hand, Plaintiff is the party who paid fair value for the house and land, the party who has had exclusive possession and control of the property, the party who maintained and improved the property, the party who furnished utilities, the party who insured the property, and the party who has listed and advertised it for sale. Defendant Brackett, on the other hand, is the party who agreed to pay $45,000 to Plaintiff for the property, but now claims he owns it based on payment of $1,800 to a third person—who he helped previously receive the surplus funds from the earlier sale of the house. Defendant Brackett is the party who participated in the filing of papers in probate court which misrepresented under oath the extent and nature of the property, and who has sat idly by while Plaintiff improved the property and attempted to sell it. Defendant Brackett is the party who claims ownership via a deed as to which the Grantor has testified she never would have signed if she knew it involved the house, and which allegedly involves a house for which the Grantor Finley had already been paid previously. Defendant Brackett is the party who has not had possession, who has not improved the property, who has not insured it, and who has not listed it for sale.

In law and equity, and pursuant to the legal principles set forth herein, the proper, moral, equitable and just result is clear. Plaintiff should be granted summary judgment and Defendants Brackett barred from sitting back and creating a cloud on the title, resulting in substantial delay damages to Plaintiff. Defendants have nothing to lose—this is just like the lottery to them. They just keep clinging to a minimal $1,800 gamble in the hopes of a windfall in the form of owning a house which has now been substantially improved by Plaintiff. Such a result is not warranted in law or equity.




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1. RE: Spartanburg, SC Real Estate Litigation Nightmare

Written by: Heinz Meng
May. 21, 2008

I am going public with my litigation since I feel helpless otherwise. Perhaps a real town blog can bring results.

Hope you all have time to read it and put some spice to it.

 I also hope this will get into the right hands and make an impact for the better.

If our judicial system is not capable of settling or making a destinction between right and wrong, who will and when ? 

My attorney and I are awaiting the Judges decision since December 2007.

2. RE: Spartanburg, SC Real Estate Litigation Nightmare

Written by: Pete Willis Morrow
May. 21, 2010

Mr Meng,

Did anything happen with this case? I never heard any updates. Did you get to keep your property?

Look forward to hearing from you. Support you all the way.

3. RE: Spartanburg, SC Real Estate Litigation Nightmare

Written by: Heinz Meng
Jun. 30, 2010

 

 

Private Comment

3. RE: Spartanburg, SC Real Estate Litigation Nightmare

Written by: Heinz Meng
Jun. 30, 2010

 Hi Pete,

 

sorry I have not kept up with this blog. I do have news.

The case is still not resolved, what else would you think ?

The Judge is being challenged and is taking his time again in not having to be financially responsible for his decisions. If a Judge could be held accountable for his  decisions..can you imagine ?

The house is still empty, I have recently visited it and RETRIEVED SOME OF THE MATERIALS I purchased for  THE RENOVATION.

The neighbor watched carefully, they are acting as if they are the owners. The other neighbor parked their boat on the empty lot. I told them they are also encroaching on my property. 

They seemingly all are very lawless in Spartanburg, SC. I will bring them all down to justice.

Thanks for your support !!!!!!!!!!!!!

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Legal Disputes in Legal Descriptions

Blog by Heinz Meng
Landrum, South Carolina

Ever been to the "real estate of hell" area ? Ever been to a deposition? Feel that your experience would benefit a larger crowd and change the existing or non existing laws? Thats what I would like to discuss and have impact upon!

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RE: Spartanburg, SC Real Estate Litigation Nightmare
 Hi Pete,   sorry I have not kept up w...
RE: Spartanburg, SC Real Estate Litigation Nightmare
Mr Meng, Did anything happen with this case?&nbsp...
RE: Spartanburg, SC Real Estate Litigation Nightmare
Has this case been resolved ?  Who is the lig...
RE: Spartanburg, SC Real Estate Litigation Nightmare
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