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Quicken Loans, Inc. v. Trizzino

United States District Court, D. South Carolina, Anderson/Greenwood Division

February 14, 2018

Quicken Loans, Inc., Plaintiff,
v.
Joseph Trizzino, Individually and as the Personal Representative of the Estate of Thomas G. Trizzino, Defendant.

          ORDER OF FORECLOSURE AND SALE

          Donald C. Coggins, Jr. United States District Judge

         This action for the foreclosure of a mortgage upon certain real estate in Oconee County, South Carolina, comes before the Court on the Motion for Default Judgment filed by Plaintiff Quicken Loans, Inc., on December 22, 2017. ECF No. 12. The Court decides the motion without hearing as permitted by Local Civil Rule 7.08 (D.S.C.). The Court holds that Plaintiff is entitled to foreclosure of the mortgage at issue herein and that the mortgaged property should be sold at a public auction after due advertisement. The Court's holding is based on the following findings of fact and conclusions of law:

         FINDINGS OF FACT

         1. The facts, as set forth by Plaintiff in its Complaint, ECF No. 1, and in the affidavit, declarations, and memorandum of law filed with Plaintiff's Motion for Default Judgment, ECF No. 12, are undisputed by the defendant to this action. Defendant is in default for failure to respond to the Complaint. See ECF No. 9.

         2. Plaintiff is a mortgage lending company organized under the laws of the State of Michigan with its principal place of business located in the State of Michigan. ECF No. 1 at 1.

         3. Defendant was personally served with a copy of the Complaint at an address in New City, New York. ECF No. 16.[1]

         4. The amount in controversy in this matter exceeds the sum of $75, 000.00.

         5. The real property which is the subject of this foreclosure action (hereafter the “subject property”) is located in Oconee County, South Carolina, and is described as follows:

All that certain piece, parcel or lot of land lying and being situated in the State of South Carolina, County of Oconee, being known and designated as Lot Number SIXTEEN (16) of WALNUT GROVE Subdivision, as shown and more fully described on a plat thereof prepared by Michael L. Henderson, PS 6946, dated July 25, 1995 and recorded in Plat Book A393, at Page 9, records of Oconee County, South Carolina.
This being the same subject property conveyed to Thomas G. Trizzino by deed of Hubert Stanley Smith dated August 8, 1995, and recorded August 9, 1995, in Deed Book 828 at Page 133 in the Office of Register Deeds for Oconee County.
Property Address: 319 South Lawrence Ave.Seneca, South Carolina 29678 TMS# 520-54-08-016

ECF No. 12-3 at 4.

         6. Thomas G. Trizzino was the owner of the subject property by virtue of a deed dated August 8, 1995, and recorded in the Office of the Register of Deeds for Oconee County on August 9, 1995.

         7. Thomas G. Trizzino made, executed, and delivered to Plaintiff a fixed rate promissory note (“Note”) dated May 25, 2016, in the principal sum of $72, 900.00, payable in monthly installments. Plaintiff currently has possession of the original note.

         8. Paragraph 6(E) of the Note provided that if it should be placed in the hands of an attorney for enforcement, all costs of enforcement, including a reasonable attorney's fee, would be recoverable by Plaintiff.

         9. In order to secure the payment of the Note according to its terms and conditions, Thomas G. Trizzino made, executed, and delivered to Mortgage Electronic Registration Systems, Inc., as nominee for Plaintiff, its successors and assigns, a real estate mortgage (“Mortgage”) covering the subject property and its improvements.

         10. The Mortgage was signed, witnessed, and probated on May 25, 2016; thereafter, the Mortgage was recorded in the Office if the Clerk of Court for Oconee County on June 9, 2016, in Mortgage Book 3497 at Page 279.

         11. The legal description in the Mortgage incorrectly recorded that the plat of the subject property is located in Plat Book “A393" at Page 9 in the Office of the Register of Deeds for Oconee County. The correct plat is located in Plat Book “A353" at Page 9 of that office. It appears this is merely a scrivener's error. See ECF No. 12-3 at 1.

         12. Paragraph 22 of the Mortgage provided that if it should be placed in the hands of an attorney for foreclosure, all costs of foreclosure, including a reasonable attorney's fee, would become additional debt secured thereunder that Plaintiff would be entitled to recover.

         13. The Mortgage was assigned to Plaintiff by Assignment of Mortgage dated May 1, 2017, in Book 3608 at Page 172.

         14. Thomas G. Trizzino passed away on December 13, 2016. ECF No. 12-3 at 25-27 (probate records of Oconee County).

         15. Under his Last Will and Testament dated January 26, 2016, Thomas G. Trizzino appointed Defendant as the Personal Representative of his estate and devised his real property to Defendant.

         16. Pursuant to the Mortgage, Defendant's failure to make monthly installments when due under the Note constituted breach of the Mortgage. After all payments received by Plaintiff are credited to the subject loan, the loan is in default and due for the February 1, 2017, payment.

         17. By letter dated March 31, 2017, Plaintiff mailed notice to the subject property of the right to cure the loan default and warned that failure to do so could result in debt acceleration, foreclosure, and sale of the subject property.

         18. Defendant failed to cure the loan default.

         19. Plaintiff then accelerated the loan.

         20. Defendant has failed to provide payment of the entire debt in full to Plaintiff.

         21. According to the Affidavit of Laura Miller, filed in support of Plaintiff's Motion for Default Judgment, the debt owed to Plaintiff under the Note and ...


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