BAC HOME LOANS SERVICING, LP f/k/a COUNTRYWIDE HOME LOANS SERVICING, LP, Plaintiff and Appellee,
THOMAS C. TRANCYNGER; SUSAN D. TRANCYNGER, Defendants and Appellants, and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; and ANY PERSON IN POSSESSION, Defendants
Considered on briefs February 18, 2014
APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT LAWRENCE COUNTY, SOUTH DAKOTA. THE HONORABLE RANDALL L. MACY Judge.
DAVID C. PIPER of Mackoff Kellogg Law Firm, Dickinson, North Dakota, Attorneys for plaintiff and appellee.
DAVID L. CLAGGETT, Spearfish, South Dakota, Attorney for defendants and appellants.
GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and SEVERSON, Justices, concur.
[¶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 (Trancyngers), husband and wife, appeal, arguing that a genuine issue of material fact precludes summary judgment. We affirm.
[¶2] Trancyngers entered into a mortgage with Countrywide Home Loans (Countrywide) in February 2003. 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. 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 September 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 allow 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, ...