Hinnant v. Philips

645 S.E.2d 867, 184 N.C. App. 241, 2007 N.C. App. LEXIS 1317
CourtCourt of Appeals of North Carolina
DecidedJune 19, 2007
DocketNo. COA06-1308.
StatusPublished
Cited by8 cases

This text of 645 S.E.2d 867 (Hinnant v. Philips) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hinnant v. Philips, 645 S.E.2d 867, 184 N.C. App. 241, 2007 N.C. App. LEXIS 1317 (N.C. Ct. App. 2007).

Opinion

LEVINSON, Judge.

Defendant-intervenors, Pedro Espinosa and Cecilia Rodriguez; John Matthews, Trustee; and Mortgage Electronic Registration Systems, Inc. (MERS), appeal from an order granting the motion of plaintiffs Charles and Dorothy Hinnant for execution on a judgment obtained against Richard and Sheila Phillips (defendants). We affirm.

The factual and procedural history of this case began in 1982 when plaintiffs loaned money to defendants, secured by a promissory note executed by the parties. Defendants failed to make the required payments, and plaintiffs filed a complaint to collect the balance of the loan. Their complaint was captioned Hinnant v. Phillips, 87 CVD 1689. Plaintiffs obtained a default judgment on 18 March 1988, which was docketed and indexed with "Richard Barry Phillips and Sheila Ann Phillips" named as defendants.

In July 1988, after the docketing of the judgment in 87 CVD 1689, defendants bought a parcel of land in Johnston County (the subject property). Approximately ten years later, in 1998, plaintiffs filed a complaint to renew their judgment against defendants. The complaint, 98 CVD 272, was again captioned with the parties' names, but the last name "Phillips" was spelled "Philips" with one "L." In February 1998 plaintiffs obtained judgment in their favor; this judgment and *869the copy docketed by the Clerk of Court also spelled "Phillips" as "Philips."

In 2005 plaintiffs filed a motion in the cause seeking to collect on the judgment through sale of the subject property. However, by 2005 the property had changed hands several times. Defendants had defaulted on their mortgage, and the lender foreclosed on the property; thereafter, it was conveyed to a financial corporation. The subject property was then conveyed to Espinosa, who executed a promissory note in favor of MERS and its trustee, John Matthews.

In May 2006 the trial court allowed appellants to intervene in the case, to protect their rights in the subject property. At the hearing conducted 8 May 2006, appellants argued that the judgment against plaintiffs was not an effective lien as against a bona fide purchaser. Appellants asserted that the claimed lien was invalid because it did not appear in the chain of title in a search for "Phillips" with two L's. Plaintiffs presented expert testimony that the standard of care for a title search includes checking for common spelling variants of a name, and that the approved practice is to enter part of a name (in this case, P-H-I-L) in order to catch minor errors or spelling variations. The trial court ruled in favor of plaintiffs, in an order finding in pertinent part that:

1. Plaintiffs recovered a judgment against defendant Phillips (herein `Defendants') docketed on March 18, 1988 ... [the "Original Judgment"].

2. Plaintiffs' brought an action to renew that judgment in this file, number 98 CVD 272, and prevailed in that action[.] ... [T]he Complaint and ... other pleadings, including the judgment, misspelled the Defendants' surname as "Philips," [not] "Phillips," as in the earlier action.

3. . . . Plaintiffs' judgment against Defendants ... ["Judgment at Issue"] was indexed in the Clerk of Court's computer system with the spelling, "Philips[,]" ... [and] docketed and indexed against, "Richard Barry Philips and Sheila Philips," as opposed to, "Richard Barry Phillips and Sheila Phillips," as was the case with the Original Judgment.

4. .... [In July 1998] Defendants took title to a certain parcel in Johnston County ... [(the "subject property")]. Such Deed is recorded in ... the Johnston County Registry and ... offered into evidence by the Plaintiffs and correctly spelled the [defendants'] name ... as Richard Barry Phillips and Sheila A. Phillips.

5. On November 30, 2001, Defendants ... conveyed the Land to a trustee to secure their Note to Lender by Deed of Trust ... (herein the "Deed of Trust").

6. The Deed of Trust was foreclosed [and] ... the substitute trustee under the Deed of Trust ... conveyed the Land to GMAC Mortgage Corporation.

7. . . . [In March] 2005, GMAC ... conveyed the Land to ... Pedro [M.] Espinosa and his wife, Cecilia M. Rodriguez, by deed recorded in [the] ... Johnston County Registry.

8. . . . Espinosa et ux conveyed title to the Land . . . to secure a Note for such purchase by Deed of Trust ... which Note and Deed of Trust are now owned and held by [MERS].... Such Deed of Trust names ... John T. Matthews, as Trustee.

9. .... [The] judgment docket index was put on computer in 1989 and the use of the hard copy of the judgment index book was discontinued February 16, 2004.

10. Plaintiffs called as a witness Rhonda Moore, [who] ... worked in law offices since 1982 and as title [Page] searcher paralegal since 1985[.] ... The Court qualified her as an expert witness in matters of title examination in eastern North Carolina, without objection.

11. Ms. Moore ... explained the protocol used in the AOC computers in the Office of the Clerk of the Superior Court of Johnston County, that only the name entered is pulled up for review on the screen.... [T]he exact letters typed in the screen on the *870computer are the letters in the index which appear. For example, inputting the letters, "P-H-I-L-I-P-S," into the judgment computer would not reveal to the searcher a judgment against a person having the name, "P-H-I-L-L-I-P-S." Ms. Moore's testimony was that she enters the letters "P-H-I-L" when checking judgments for Phillips or Philips because of the prevalence of each spelling. She testified such is her usual and customary practice[.] ...

12. Ms. Moore offered an opinion . . . [that the] standard of care for a title examination in eastern North Carolina involving a judgment search for Phillips would be made by inputting "P-H-1-L" in the Clerk of Court computer system....

13. The printed computer index for "P-H-I-L-L-I-P-S" is [18] pages [and has] ... [2] entries for "Rick Phillips," [3] entries for "Richard Phillips" and [3] entries for "Richard Barry Phillips."

....

16. Plaintiffs' expert witness would have conducted her title examination of the judgment index by typing "P-H-I-L" into the judgment index system in the office of the Clerk of the Superior Court.

20. The name, "PHILIP" is a variant spelling of the name, "PHILLIPS," within the doctrine of idem sonans.

On these facts, the court concluded, in pertinent part, that:

2. The foreclosure proceeding and the other judgments indexed under the spelling "Phillips" should have attracted the attention of or stimulated further inquiry by a title searcher.

3. The foreclosure proceeding and the judgments indexed under the spelling "Phillips" were sufficient notice to put a careful and prudent examiner upon inquiry; and by such inquiry the Judgment at Issue would have been found.

6. The Judgment at Issue was properly docketed and indexed.

7. [Appellants] could have discovered the Judgment at Issue with reasonable care and so had constructive notice of same.

8. The Judgment at Issue attached to and became a lien on the Land upon acquisition of that Land by Defendants.

9. Plaintiffs are entitled to levy execution on the Judgment at Issue and to the extent the same may involve the Land to ... levy execution on the Land.

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Cite This Page — Counsel Stack

Bluebook (online)
645 S.E.2d 867, 184 N.C. App. 241, 2007 N.C. App. LEXIS 1317, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hinnant-v-philips-ncctapp-2007.