Baxter v. Bayview Loan Servicing LLC

All that is necessary is that a mortgage document ' "clearly indicate the creation of a lien and . . . specify the debt for which it is given and the property upon which it is to take effect." '

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

This case involves a dispute as to the existence and priority of competing security interests held by Ellis Baxter and Bayview Loan Servicing, LLC “Bayview” in certain real property located on Peachtree Industrial Boulevard in DeKalb County “the Property”. The trial court granted summary judgment against Baxter and in favor of Bayview on Baxter’s claims that: 1 an agreement between Baxter and his ex-wife and his son granted Baxter a mortgage on the Property; and 2 that, because Bayview took its deed to secure debt on the Property with constructive notice of Baxter’s mortgage lien, Baxter’s security interest was superior to that of Bayview. Baxter now appeals from that order, as well the trial court’s order granting Bayview’s motion to release the surety bond Bayview had posted as a condition of cancelling Baxter’s notice of lis pendens against the Property.1 For reasons explained below, we find that Baxter did hold a mortgage lien against the Property, and that a question of fact exists as to whether Bayview took its security deed with notice of that lien. We further find that, even if Bayview did have notice of Baxter’s security interest in the Property, it is nevertheless entitled to be subrogated to the rights of a senior lien holder, whose debt was satisfied by a portion of the loan Bayview made against the Property. Finally, we hold that the trial court abused its discretion in unconditionally granting Bayview’s motion for the return and release of its surety bond. Accordingly, we reverse the grant of summary judgment to Bayview and vacate and remand the order granting Bayview’s motion for the return and release of its surety bond.

“On appeal from a grant of summary judgment, we conduct a de novo review of the evidence to determine if there exists a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, entitle the movant to judgment as a matter of law.” Punctuation omitted. Bone v. The Children’s Place, Inc. 2

Baxter v. Bayview Loan Servicing LLC

All that is necessary is that a mortgage document ' "clearly indicate the creation of a lien and . . . specify the debt for which it is given and the property upon which it is to take effect." '

Share with Email

Thank you for sharing!

Trending Stories

More From ALM

Subscribe to Daily Report