A Quiet Title Story

In 2001, Pinnola & Bomstein’s clients Mick and Terri Page purchased a residential property in Montgomery County (“the property”). The property consisted of two lots identified in a single deed instrument as Premises “A” and Premises “B.” The couples’ home was located on Lot B; Lot A was an adjacent, empty “buffer” lot.

In 2002, when the Pages wanted to install an in-ground pool, they sought and obtained permission from their local township. Upon receiving approval, they recorded a “deed of consolidation” that described one lot consisting of what was formerly Premises “A and “B.” Having their deed reflect that consolidation was important because, without it, they would not have been permitted to build their pool.

On July 22, 2005, Dr. and Mr. Page sold the property to Jim Mercer and Matt Porter. Wells Fargo Bank loaned the buyers $825,000 towards the purchase and took a first mortgage on the property.

In January, 2009 Wells Fargo began a foreclosure action against Mercer and Porter. Mr. Mercer then learned that the 2005 deed’s legal description erroneously identified only the empty buffer lot, Premises “A.” It occurred to him that the bank might not even have a mortgage on his house on the parcel previously known as Premises “B.”

Having the original A/B description would thus enable Mercer and Porter to assert in the foreclosure proceedings that Wells Fargo never intended to mortgage the house parcel and the bank could foreclose only on the empty lot, Premises “A.” From that time on, Mr. Mercer took that position in the foreclosure lawsuit, that Wells Fargo had never intended to place a mortgage on the house portion of the property.

For their own purposes, however, to assure that their property interests were protected, the deed needed to be corrected to show they owned both “A” and “B” parcels. In 2011, plaintiffs Mercer and Porter filed a suit in equity, claiming that the deed for the property was erroneous because it failed to contain the 2001 deed’s A/B description.

As named parties to the 2011 suit, Dr. and Mr. Page disagreed. They contended that the 2005 description should have mirrored the description contained in the 2002 deed of consolidation, recorded after they obtained approval from the township. In that deed, there is only one lot that includes the land from both of the previous parcels. Mercer and Porter argued, however, that the 2002 deed was invalid.

If a new deed of correction were to identify two distinct lots, as shown on the 2001 deed, plaintiffs’ argument in the foreclosure litigation could at least look plausible. If a deed of correction identified only one consolidated lot, as shown on the 2002 deed, the argument would not be plausible at all, as the house portion was not separately described and the bank’s claim would have greater validity.

At trial, Mike Bomstein presented evidence that the 2002 deed of consolidation was the deed of record as of 2005. That instrument properly described the entirety of the property and explicitly recorded his clients’ intentions at the time. That consolidation deed was duly registered in the township and recorded in Montgomery County following a series of steps taken by the Pages in compliance with local ordinances.

With the assistance of their lawyer, the Pages proved in court that the buyers’ contention, that the Pages intended to convey the property with the 2001 description, was simply not believable. Mike Bomstein showed that there never was an agreement or understanding that the 2005 deed was to contain separate “A” and “B” descriptions. Even if there had been, such an understanding was never incorporated into the agreement of sale or any amendment to the agreement. Moreover, plaintiffs’ claims were barred by the Statute of Frauds, which does not permit enforcement of a real estate sale agreement that is not in writing.

Following trial, both sides submitted proposed findings of fact and conclusions of law to the trial judge. After a few months, the court made findings in favor of the Pages and a new deed was filed that contained the description that the Pages had provided in order to build their pool.