BAC HOME LOANS SERVICING, LP f/k/а Countrywide Home Loans Servicing, LP, Plaintiff and Appellee, v. Thomas C. TRANCYNGER; Susan D. Trancynger, Defendants and Appellants, and Mortgage Electronic Registration Systems, Inc.; and any Person in Possession, Defendants.
No. 26736.
Supreme Court of South Dakota.
Decided April 16, 2014.
2014 S.D. 22
WILBUR, Justice.
Considered on Briefs on Feb. 18, 2014.
David C.
David L. Claggett, Spearfish, South Dakota, attorney for defendants and appellants.
WILBUR, Justice.
[¶1.] The circuit court granted summary judgment to BAC Home Loans Servicing, LP (BAC) entitling BAC to foreclose on its residential real estate mortgage. The circuit court also awarded attorney fees to BAC and reformed the mortgage by changing the legal description. Thomas Trancynger and Susan Trancynger (Trаncyngers), husband and wife, appeal, arguing that a genuine issue of material fact precludes summary judgment. We affirm.
Background
[¶2.] Trancyngers entered into a mortgage with Countrywide Home Loans (Countrywide) in February 2003.1 The mortgage secured a promissory note in the original amount of $165,750 and encumbered the property commonly known as Lot 26. In July 2003, Lot 26 was subdivided into Lot 26A and Lot 26B. The plat was recorded in December 2003. In May 2005, a modification of mortgage and partial release of Lot 26B executed by Countrywide was filed with the Lawrence County Register of Deeds.
[¶3.] Trancyngers later refinanced the above-described loan by executing a promissory note in May 2007 in favor of Countrywide in the original amount of $236,900. On the same day, the Trancyngers executed a mortgage on the above-described property in favor of BAC.2 The mortgage encumbered all of Lot 26 instead of Lot 26A.
[¶4.] Trancyngers defaulted under the terms of the subject note and mortgage in 2009, and BAC initiated its lawsuit to foreclose the mortgage in June 2009. After learning the mortgage encumbered all of Lot 26, BAC amended its complaint in Septembеr 2011 in order to reform the mortgage to encumber only Lot 26A. Trancyngers failed to file an answer to BAC‘s original complaint. Trancyngers filed an answer to the amended complaint in March 2013.
[¶5.] A summary judgment hearing was held on April 1, 2013. At this hearing the circuit court granted BAC‘s motion to reform the mortgage to encumber only Lot 26A, but continued the hearing until May 3, 2013, to аllow the parties to further brief the issue of whether summary judgment of foreclosure was appropriate. At the May 3 hearing the circuit court concluded there were no genuine issues of material fact and granted BAC‘s motion for summary judgment.
[¶6.] Trancyngers filed a notice of appeal on June 28, 2013. On June 25, 2013, Trancyngers received the notice of real estate sale, which was scheduled to take
[¶7.] The following issues are raised on appeal:
- Whether Trancyngers’ failure to post a supersedeas bond to stay the foreclosure sale renders this appeal moot.
- Whether the circuit court erred in granting BAC summary judgment to foreclose the mortgage.
- Whether the circuit court erred in awarding BAC attorney fees and costs.
- Whether the circuit court erred in reforming the mortgage.
Standard of Review
[¶8.] Our review of summary judgment is well-settled:
We must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party. The nonmoving party, however, must present specific facts showing that a genuine, material issue for trial exists. Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of the trial cоurt, affirmance of a summary judgment is proper.
De Smet Farm Mut. Ins. Co. of S.D. v. Busskohl, 2013 S.D. 52, ¶ 11, 834 N.W.2d 826, 831 (citation omitted). “[A] trial court‘s award of attorney fees is reviewed under an abuse of discretion standard.” Eagle Ridge Estates Homeowners Ass‘n, Inc. v. Anderson, 2013 S.D. 21, ¶ 13, 827 N.W.2d 859, 865 (citation omitted). “An abuse of discretion is a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence.” Roth v. Haag, 2013 S.D. 48, ¶ 11, 834 N.W.2d 337, 340 (citation omitted).
Decision
[¶9.] 1. Whether Trancyngers’ failurе to post a supersedeas bond to stay the foreclosure sale renders this appeal moot.
[¶10.] BAC argues that Trancyngers’ failure to post a supersedeas bond resulting in the failure to stay the real estate foreclosure sale renders this appeal moot because this Court is without power to rescind a foreсlosure sale. This Court only decides “actual controversies affecting people‘s rights.” Sullivan v. Sullivan, 2009 S.D. 27, ¶ 11, 764 N.W.2d 895, 899 (citation omitted). “Accordingly, an appeal will be dismissed as moot where, before the appellate decision, there has been a change of circumstances or the occurrence of an event by which the actuаl controversy ceases and it becomes impossible for the appellate court to grant effectual relief.” Id. (citation omitted).
[¶11.] The actual controversy regarding this appeal is whether summary judg-ment
[¶12.] Moreover, BAC was the purchaser at the foreclosure sale and is now a party before this Court. We further note that the foreclosure sale is subject to statutory rights of redemption. See
[¶13.] 2. Whether the circuit court erred in granting BAC summary judgment to foreclose the mortgage.
[¶14.] Trancyngers assert that BAC is not entitled to foreclosure on summary judgment because BAC was precluded from initiating foreclosure proceedings and utilized improper tactics throughout the proceedings. Trancyngers claim “that good faith has not existed on the part of BAC” and “that the mortgage handling and foreclosure practices of which Trancyngеrs complain mirror documented national mortgage abuse practices.” In reference to the national mortgage abuse practices, Trancyngers point to a consent judgment obtained in the United States District Court, District of Columbia, United States, et al. v. Bank of America, et al., 922 F.Supp.2d 1 (D.D.C. 2013), which was the “result of settlements between government entities and major mortgagees . . . for аlleged misconduct in home-mortgage practices.” Ghaffari v. Wells Fargo Bank, N.A., --- F.Supp.2d ---, ---, 2013 WL 6070364, at *3 (D.D.C. Nov. 19, 2013).
[¶15.] General allegations which do not set forth specific facts will not prevent summary judgment. Citibank S.D., N.A. v. Schmidt, 2008 S.D. 1, ¶ 18, 744 N.W.2d 829, 832 (citing Bordeaux v. Shannon Cnty. Sch., 2005 S.D. 117, ¶ 14, 707 N.W.2d 123, 127). Trancyngers liken their unsuccessful loan modification to the unfair mortgage practices outlined in national news publications. Trancyngers further link the unfair mortgage practices to the consent judgment settlement and claim that because a settlement was reached, BAC is not entitled to a foreclosure and must refinance the mortgage. Trancyngers’ reliance on national mortgage abuse practices without setting forth any particular mistreatment regarding their loan fails to raise any genuine issuе of material fact because the assertion relies on general allegations at an aggregate level.
[¶16.] Trancyngers attempt to set forth specific facts by arguing that BAC‘s loan modification process was improper because BAC returned two payments—one
[¶17.] Indeed, no genuine issue of material fact exists. There is no dispute that the Trancyngers borrowed money from BAC and secured that loan with a mortgage in favor of BAC. Trancyngers do not dispute the interest rate, the payment amount, or their default. Further, Trancyngers presented evidence that matched what BAC claimed was due under the mortgage and admitted the intent of the mortgage was to encumber Lot 26A. They were allowed almost four years to avoid foreclosure by bringing their default current, but failed to do so. Therefore, the circuit court did not err in granting summary judgment to BAC.
[¶18.] Finally, Trancyngers claim that summary judgment was improper because the circuit court incorrectly concluded that Trancyngers had not made an aрpearance or filed responsive pleadings in the case. “We will affirm the circuit court‘s ruling on a motion for summary judgment when any basis exists to support its ruling.” DRD Enters., LLC v. Flickema, 2010 S.D. 88, ¶ 10, 791 N.W.2d 180, 184 (citation omitted). Because we conclude that the circuit court correctly ruled that no genuine issue of material fact exists, we decline to address this argument.
[¶19.] 3. Whether the сircuit court erred in awarding BAC attorney fees and costs.
[¶20.] Trancyngers agree attorney fees and costs may be awarded in this case.5 However, they argue that the circuit court did not properly analyze the factors necessary in determining attorney fees. “[T]he calculation of attorney fees must begin with the hourly fee multipliеd by the attorney‘s hours.” Eagle Ridge, 2013 S.D. 21, ¶ 28, 827 N.W.2d at 867 (citation omitted). In addition, “[t]he award of attorney fees must be reasonable for the services rendered.” Id. (citation and internal quotation marks omitted). A number of factors are to be considered when determining a reasonable award of
[¶21.] At the May 3, 2013 summary judgment hearing Judge Macy articulated his position on the award of attorney fees: “[B]ased on the size of this file and the litigation that‘s been necessаry, your claim appears to be reasonable.” During the same exchange, he said, “Before I sign off on the attorney fees, I‘m going to require that you provide an affidavit that shows the actual time spent on the file.” Again, he stated, “It appears, based on the size of the file and all the work that‘s been done, that [the] fee is reаsonable, but I want to review that before I sign off on that.” On May 10, BAC‘s attorney filed an affidavit itemizing the amount of time worked on the file and analyzing the factors considered in determining whether the attorney fees are reasonable.
[¶22.] The amount of time spent and hourly rate were itemized by BAC‘s attorney, which totaled $3,460.75. However, BAC‘s attorney had previously agreed to represent BAC for a flat rate. BAC‘s attorney agreed to litigate the case at a flat fee of $950 for the default residential foreclosure, $875 for litigated attorney fees, and $875 for clearing title. Including $108 for sales tax, the total amount requested was $2,808, which the circuit court awarded as part of the judgment.
[¶23.] The circuit court did not abuse its discretion in awarding BAC its attorney fees and costs. In making the determination, Judge Macy made a ruling based on the type of litigation, the length of the litigation, the amount of time spent on the case, and the fee customarily charged for similar services. In doing so, and after receiving an affidavit outlining the same, he cоncluded that the fee was reasonable by awarding the fees as part of the judgment. “Although this Court has expressed a preference for written findings and conclusions, it has accepted oral findings and conclusions where the basis of the trial court‘s ruling is clear.” State v. Fifteen Impounded Cats, 2010 S.D. 50, ¶ 23, 785 N.W.2d 272, 281 (citing In re Guardianship & Conservatorship of Fischer, 2008 S.D. 51, ¶ 8, 752 N.W.2d 215, 217; State v. Stevenson, 2002 S.D. 120, ¶ 10, 652 N.W.2d 735, 739). Here, it is clear Judge Macy based his decision on the length and type of litigation, the amount of time spent on the case, and the affidavit of BAC‘s attorney. Judge Macy‘s decision was supported by sound reason and evidence and therefore, was not an abuse of discretion.
[¶24.] 4. Whether the circuit court erred in reforming the mortgage.
[¶25.] Trancyngers argue the circuit court erred when it reformed the mortgage tо only encumber Lot 26A instead of all of Lot 26 because at the time when Trancyngers signed the mortgage,
[¶26.] When a mutual mistake is made between two parties, the contract may be revised by the court.
[¶27.] Affirmed.
[¶28.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and SEVERSON, Justices, concur.