BLACK et al.
NATIONSTAR MORTGAGE LLC. et al.
BARNES, P. J., MCMILLIAN and MERCIER, JJ.
Barnes, Presiding Judge.
trial court granted appellees', Nationstar Mortgage LLC
and Federal Home Loan Mortgage Corporation, motion for
summary judgment on their complaint for declaratory judgment
and equitable reformation, in which they had sought to
reverse a foreclosure, void the related deed under power and
special warranty deed, and reinstate the modified security
deed to a first priority position. The appellants, Lee Angel
Black, formerly known as, Lee Angel White, and Stacy M. Black
appeal from that order. Following our review, and discerning
no reversible error, we affirm the trial court's
23, 2007, the appellants obtained a loan from Advanced
Financial Services, Inc. ("Advanced") in the amount
of $17l, 000. On the same date, they executed and delivered a
security deed conveying certain property to Mortgage
Electronic Registration Systems, Inc. ("MERS") as
nominee for Advanced to secure repayment of the loan. The
subject property is commonly known as 3284 Price Mill Road,
Bishop, Georgia 30621. The property consists of two parcels:
Parcel 04A/3284 ("Parcel l"), valued at $187, 230,
and Parcel 04B ("Parcel II"), valued at $12, 000.
Parcel 1 is a four-acre lot with a house, and Parcel II is an
adjacent, undeveloped one-acre lot.
security deed was recorded on July 2, 2007, and referenced
that the property conveyed was 3284 Price Mill Road, but the
legal description of the property attached to the deed only
referenced Parcel II, the undeveloped one-acre lot. In
December of 2012, MERS, assigned the security deed to
Nationstar. Appellants and Nationstar executed a modification
of the security deed to include both Parcel I and Parcel II
in the legal description, which was filed with the clerk of
superior court on May 15, 2013. The modification, in
pertinent part, provided, that "the legal description of
the real property attached an incorporated in the Security
Deed at the time of its execution. . . does not describe the
entire Five Acre Tract as intended by the [appellants]."
by executing and delivering to [Nationstar] this
Modification, [appellants] wish to establish, state, clarify,
and restate their intention to grant and convey the Five Acre
Tract to [Nationstar] as security for the Loan and to provide
that the Five Acre Tract is encumbered by, made part of, and
incorporated into the Security Deed for all purposes set
forth therein, as fully as if the description of the Five
Acre Tract were attached to the Security Deed as and when the
Security Deed was executed by [appellants], delivered to
[MERS], and recorded in the . . . real property records.
subsequently defaulted on the loan, and after they failed to
cure the default payments on the loan, Nationstar conducted a
non-judicial foreclosure sale of the subject property on
November 5, 2013, and purchased the property for $100, 000.
However, the foreclosure notice described only Parcel II of
the property. On November 5, 2013, Nationstar, as
attorney-in-fact of appellants, prepared, executed, and
delivered a "Deed Under Power" to Nationstar. The
Deed Under Power specifically cross-indexed to the security
deed and was recorded on December 5, 2013. Nationstar also
prepared a "Special Warranty Deed" The legal
description of the subject property set forth in both the
Deed Under Power and the Special Warranty Deed referred only
to Parcel II rather than the entirety of the property.
Neither Nationstar nor Federal Home reported the sale within
thirty days of the foreclosure sale to the superior court for
confirmation and approval pursuant to OCGA § 44-14-161
on September 4, 2015, the appellees filed a Complaint For
Declaratory Judgment and Equitable Reformation seeking to (1)
reverse the foreclosure, (2) void the Deed Under Power and
Special Warranty Deed, and (3) reinstate the modified
security deed to the first priority position that it occupied
before the foreclosure.
cross motions for summary judgment, the trial court entered
an order granting appellees' motion and denying
appellants' motion, finding that:
[appellees] intended to take a security interest in the
entirety of the property comprised of both Parcel I and
Parcel II. Indeed, after discovering the mistaken legal
description in the original Security Deed, Plaintiff
Nationstar and both Defendants executed the Modification to
amend the description to include both Parcels, as intended by
the parties. Only after foreclosure did [appellees] realize
that the mistaken property description had carried over to
the Deed Under Power and the Special Warranty Deed. The
evidence conclusively establishes a mutual mistake relievable
in equity.... OCGA § 23-2-21 (a). The evidence further
shows that omission of Parcel II from the description in the
Deed Under Power and the Special Warranty Deed was contrary
to the parties' intention.
trial court further found that appellants had not
demonstrated that they would be prejudiced by the reformation
of the security deed, and that the reformation related back
to date of the security's deed execution and thus the
deed was reinstated to first priority lien position.
judgment is proper if the pleadings and evidence "show
that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter
of law." OCGA § 9-11-56 (c). On appeal from the
grant of summary judgment, we "conduct a de novo review,
construing all reasonable inferences in the light most
favorable to the nonmoving party." Bank of North Ga.
v. Windermere Dev., 316 Ga.App. 33, 34 (728 S.E.2d 714)
contend on appeal that the appellees were not entitled to
equitable reformation and thus the trial court erred in its
grant of summary judgment. We do not agree.
Equity may intervene and reform a conveyance when the
instrument fails to express accurately the intention of the
parties. A petition for reformation of a written contract
will lie where by mistake of the scrivener and by oversight
of the parties, the writing does not embody or fully express
the real contract of the parties. The cause of the defect is
immaterial so long as the mistake is common to both parties
to the transaction. And the negligence ...