Franklin L. Gritt, Jr., Esq.
Winfield, West Virginia
Attorney for Raymond L. Dunn
Gerald R. Stowers, Esq.
J. Mark Adkins, Esq.
Bowles Rice McDavid Graff & Love, PLLC
Charleston, West Virginia
Attorneys for James F. Brown, IV
Charles D. Dunbar, Esq.
Mark D. Clark, Esq.
Jackson & Kelly, PLLC
Charleston, West Virginia
Attorneys for Branch Banking & Trust Company
JUSTICE MAYNARD delivered the Opinion of the Court.
1. A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law. Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).
2. A circuit court's entry of summary judgment is reviewed de novo. Syllabus Point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).
3. A party who seeks to have a trustee sale set aside for irregularity, want of notice, or fraud has the burden of proving his contention, it being presumed, in the absence of evidence to the contrary, that the sale was regular.
4. When a notice of sale by a trustee is placed in the mail pursuant to W.Va. Code § 38-1-4 (1987), a rebuttable presumption of receipt is established, which is especially strong when service is made by certified mail.
This case is before this
Court upon appeal of final orders of the Circuit Court of Putnam County entered
on May 1, 2001 and May 4, 2001. Pursuant to those orders, the circuit court
granted summary judgment in favor of the appellees and respondents below,
James F. Brown, IV, Substitute Trustee, and One Valley Bank, N.A.,
(See footnote 1)
in this injunctive action filed by the appellant and petitioner below,
Raymond L. Dunn, to set aside the foreclosure sale of real estate he owned.
In this appeal, Mr. Dunn contends that genuine issues of material fact existed
precluding summary judgment.
This Court has before it
the petition for appeal, the entire record, and the briefs and argument of
counsel. For the reasons set forth below, the final order of the circuit court
Mr. Dunn made payments on
the promissory note until November 26, 1997. Thereafter, the loan went into
default. Consequently, Mr. Dunn was served with a notarized Notice of Right
to Cure Default by certified mail on February 24, 1998. In response, Mr. Dunn
obtained a mortgage on his home in St. Albans, West Virginia, to pay off the
promissory note. However, for unknown reasons, the money was never used to
pay off the loan.
On August 6, 1998, Mr.
Brown, as substitute trustee, sent the following documents to Mr. Dunn
(See footnote 3)
by certified mail: (1) a letter dated August 6, 1998, from Nancy Belcher,
an employee of the Bank, to Mr. Dunn and his former wife giving notice of
the default and acceleration of the promissory note and advising that the
real estate would be sold; (2) a letter dated August 6, 1998 from Nancy Belcher
to Mr. Brown authorizing him as substitute trustee to sell the real estate in accordance with the terms
and conditions set forth in the Deed of Trust; and (3) a Notice of Substitute
Trustee's Sale dated August 6, 1998. That same day, Mr. Brown sent The
Putnam Democrat the Notice of Substitute Trustee's Sale for the subject
property for publication. On August 7, 1998, Mr. Dunn signed the domestic
return receipt indicating that he received the certified mail.
On September 3, 1998, a
foreclosure sale on the subject property was held, and Thomas L. Watson was
the highest bidder. By deed dated September 17, 1998, the subject property
was conveyed to Mr. Watson, and the deed was duly recorded. On that same date,
Mr. Brown prepared and signed a notarized copy of the Substitute Trustee's
Report and Account of Sale which stated that he had complied with West Virginia
law and all terms and conditions set forth in the Deed of Trust. Because the
proceeds of the foreclosure sale exceeded the amount Mr. Dunn owed the Bank,
Mr. Brown also conveyed a check to Mr. Dunn in the amount of $288.24. However,
Mr. Dunn refused to cash the check.
Subsequently, Mr. Dunn filed
a petition for injunctive relief in the Circuit Court of Putnam County naming
Mr. Brown, the Bank, and Mr. Watson as respondents, and alleging that Mr.
Brown failed to serve him notice of the foreclosure sale. Mr. Dunn requested
that the court enter an order restraining and enjoining Mr. Watson from removing, disturbing, or disposing of any of the personal property located
on the subject real estate. In response, Mr. Brown filed a counterclaim seeking
a declaration from the court as to the ownership of the subject property and
the proper disposition of the excess proceeds. Mr. Watson filed a cross-claim
seeking damages from Mr. Brown and the Bank in the event that the foreclosure
sale was set aside.
On November 13, 2000, Mr.
Brown filed a motion for summary judgment. The Bank filed its own summary
judgment motion on January 26, 2001. A hearing was held on February 8, 2001,
and the circuit court granted the summary judgment motions in the final orders
entered on May 1, 2001 and May 4, 2001. This appeal followed.
(See footnote 4)
As noted above, this is
an appeal of an order granting summary judgment. This Court has held that
[a] motion for summary judgment should be granted only when it is clear
that there is no genuine issue of fact to be tried and inquiry concerning
the facts is not desirable to clarify the application of the law. Syllabus
Point 3, Aetna Casualty & Surety Co. v. Federal Ins. Co. of New York,
148 W.Va. 160, 133 S.E.2d 770 (1963). We have further held that [a] circuit court's entry of summary judgment
is reviewed de novo. Syllabus Point 1, Painter v. Peavy,
192 W.Va. 189, 451 S.E.2d 755 (1994).
As discussed above, Mr.
Dunn claims that he did not receive notice of the foreclosure sale. Specifically,
he asserts that Mr. Brown failed to enclose a copy of the Notice of Substitute
Trustee's Sale in the envelope that was mailed to him on August 6, 1998. The
circuit court found that Mr. Dunn's mere denial of receiving the notice of
sale was insufficient to rebut the presumption of receipt created by his signature
on the domestic return receipt from the certified mail and, thus, granted
summary judgment to Mr. Brown and the Bank. Mr. Dunn contends that the circuit
court erred in this finding. He acknowledges that his mere denial of receiving
notice may be insufficient to allow him to prevail at trial, but argues that
the evidence is sufficient to withstand a motion for summary judgment.
W.Va. Code § 38-1-4 (1987) provides the specific notice requirements that a substitute trustee must satisfy when overseeing a foreclosure. The statute states, in pertinent part:
In all cases, a copy of such
notice shall be served on the grantor in such trust deed, or his agent or personal
representative, by certified mail, return receipt requested, directed to the
address shown by the grantors on the deed of trust or such other address given
to the beneficiary of said trust deed or said beneficiary's agent or assignee
in writing by the said grantor subsequent to the execution and delivery of the
trust deed and notice shall be deemed complete when such notice is mailed to
the aforesaid address, notwithstanding the fact that such mail may be returned
as refused or undeliverable and shall be served by certified mail, at least
twenty days prior to the sale, upon any subordinate lienholder who has previously
notified the primary lienholder by certified mail of the existence of a subordinate
lien. Every trust deed shall state the address to which such notice shall be
W.Va. Code § 38-1-4. In Russell v. Webster Springs Nat. Bank, 164 W.Va. 708, 711, 265 S.E.2d 762, 764 (1980), this Court stated that, [a] party who seeks to have a trustee sale set aside for irregularity, want of notice, or fraud has the burden of proving his contention, it being presumed, in the absence of evidence to the contrary, that the sale was regular.
It is a well-established
principle of law that a letter properly addressed, stamped and mailed
is presumed to have been duly delivered to the addressee. Strong, John
W., McCormick on Evidence, § 343 (5th ed. 1999). This presumption
is especially true when the delivery is by certified mail. Cleckley,
Franklin D., Handbook on Evidence for West Virginia Lawyers §
3-1(C) (3rd ed. 1994). Thus, we hold that when a notice of sale by a trustee
is placed in the mail pursuant to W.Va. Code § 38-1-4, a rebuttable presumption of receipt is established, which is especially strong
when service is made by certified mail.
We note that for this Court
to adopt any rule, other than the one herein enunciated to the effect that
mailing by certified mail establishes a rebuttable presumption of receipt
of notice, could result in much uncertainty and potentially allow great mischief.
There is really no other rule this Court could fashion which would avoid those
problems in a meaningful and practical way, keeping in mind the fact that
these disputes often involve the rights of innocent bona fide purchasers.
In this case, Mr. Brown
and the Bank established the rebuttable presumption that Mr. Dunn received
the Notice of Substitute Trustee's Sale when it produced the domestic return
receipt signed by Mr. Dunn on August 7, 1998, confirming that he received
the August 6, 1998 certified mail. In addition, the testimony of Angela Douglas,
Mr. Brown's legal assistant, established that the normal practice and procedure
of Mr. Brown's office is to send the foreclosed grantors the Notice of Substitute
Trustee's Sale along with the letter from the Bank to the substitute trustee
authorizing the sale and the letter to the foreclosed grantors informing them
that they are in default and that the real property will be sold. Furthermore,
the evidence showed that the Notice of Substitute Trustee's Sale was mailed to The Putnam Democrat for publication
on the same day that Mr. Brown sent the certified mail to Mr. Dunn.
In response, Mr. Dunn offered
no evidence to support his allegation that he did not receive the Notice of
Substitute Trustee's Sale except his own testimony in that regard and similar
testimony from his ex-wife.
While a verified complaint can be considered as summary judgment evidence, King v. Dogan, 31 F.3d 344, 346 (5th Cir.1994), self-serving assertions without factual support in the record will not defeat a motion for summary judgment. McCullough Oil, Inc. v. Rezek, 176 W.Va. 638, 346 S.E.2d 788 (1986). Thus, a nonmoving party cannot avoid summary judgment merely by asserting that the moving party is lying. Rather, Rule 56 [of the West Virginia Rules of Civil Procedure] requires a nonmoving party to produce specific facts that cast doubt on a moving party's claims or raise significant issues of credibility. The nonmoving party is required to make this showing because he is the only one entitled to the benefit of all reasonable or justifiable inferences when confronted with a motion for summary judgment. Inferences and opinions must be grounded on more than flights of fancy, speculations, hunches, intuition, or rumors.
Williams v. Precision Coil, Inc., 194 W.Va. 52, 61 n.14, 459 S.E.2d 329, 338 n.14 (1995) (emphasis in original). Accordingly, Mr. Dunn's mere denial that he received the notice of sale is simply insufficient to rebut the presumption of receipt established by his signature on the return receipt card for the certified mail and does not create a genuine issue of material fact. Thus, the circuit court properly granted summary judgment to Mr. Brown and the Bank.
For the reasons set forth above, the final orders of the Circuit Court of Putnam County entered on May 1, 2001 and May 4, 2001, are affirmed.