IN THE CIRCUIT COURT OF GREENBRIER COUNTY, WEST VIRGINIA ELEVENTH JUDICIAL CIRCUIT
Case No. CC-13-2023-P-31
UNITED ASSET MANAGEMENT, LLC,
Petitioner,
v.
JANET WINEBRIMMER, ROBERT WINEBRIMMER, the UNKNOWN HEIRS OF ROY WINEBRIMMER AND CLEO WINEBRIMMER, and the UNKNOWN HEIRS OF VIRGINIA BOSTIC,
Respondents.
SECOND AMENDED PETITION FOR DECLARATORY RELIEF
AND NOW, comes the Petitioner, United Asset Management, LLC, by and through its attorneys, Anthony W. Selbe, Brandi Leighton-Burger, and the law firm of Stern & Eisenberg, P.C., and pursuant to Rule 57 of the West Virginia Rules of Civil Procedure and W.Va. Code and W.Va. Code §55-13-1 et. seq., and the Court’s inherent equitable powers, hereby files this Second Amended Petition for Declaratory Relief, seeking an quieting title and establishing Petitioner’s Deed of Trust in the first lien priority position on the property located at 134 Anderson Street, Fairlea, WV 24902 (“Subject Property”). In support thereof, Petitioner avers as follows:
Parties
1. Petitioner is United Asset Management, LLC, (hereafter “United”), operating by and through its servicer, Madison Management Services, LLC, a limited liability company, duly authorized to conduct business in the State of West Virginia, with a principal office location of 4600 Kietzke Lane, Suite K-225, Reno, Nevada, 89502.
2. Respondents are the heirs of the deceased former residents and mortgagors, Cleo and Roy Winebrimmer, (the “Winebrimmers”) of the real estate that is the subject of this action, being located at 134 Anderson Street, Fairlea, WV 24902 (hereinafter the “Subject Property”), as well as the unknown heirs, if any, of Virginia Bostic, a former titled owner of the Subject Property.
Jurisdiction and Venue
3. This Court has jurisdiction over this matter pursuant to Rule 57 of the West Virginia Rules of Civil Procedure and W.Va. Code §55-13-1 et. seq., and its inherent equitable powers, as the Subject Property is located in Greenbrier County, West Virginia.
4. Venue is appropriate in this matter pursuant to W. Va. Code §56-1-(a)(3) as the real property which is subject to this action is located in Greenbrier County, West Virginia.
Facts
5. By Deed between Hugh L. Corbin and Lottie M. Corbin, his wife, parties of the first part, and Virdie A. Bostic and Virginia Bostic, his wife, parties of the second part, dated May 18, 1940, recorded on May 24, 1940, in Deed Book 136, Page 642 (“Vesting Deed”), in the Office of the Clerk of the County Commission of Greenbrier County, Virdie A. Bostic and Virginia Bostic took title to the Subject Property. A copy of the Vesting Deed is attached hereto as Exhibit “A”.1
1 All recording references herein refer to the Greenbrier County Clerk’s Office unless otherwise noted.
6. Pursuant to the language in the Vesting Deed, Virdie A. Bostic and Virginia Bostic took title as tenants in common and not as joint tenants.
7. By Will, executed on October 31st, 1996, and recorded on April 28, 1998, in Book 47, Page 353, in the aforesaid clerk’s office, “Verdie” A. Bostic devised the Subject Property to the Winebrimmers. A copy of the Will is attached hereto as Exhibit “B”.
8. Upon an extensive search of the aforesaid clerk’s records, no corresponding deed or probate documents exist showing a transfer of Virginia Bostic’s interest in the Subject Property to Virdi Bostic (or Verdie Bostic) or the Winebrimmers.
9. Virginia Bostic died on January 24, 1986, but no corresponding death record appears in the Clerk’s Office.
10. Despite this cloud on title, by Deed of Trust dated April 18, 2008, the Winebrimmers mortgaged the Subject Property to Citifinancial, Inc. in the amount of $52,210.96 and recorded on April 21, 2008, Trust Book 629, Page 770 (hereinafter the “Subject Mortgage”). A copy of the Subject Mortgage is attached hereto as Exhibit “C”.
11. By a series of assignments, the Subject Mortgage was assigned to Petitioner, to wit:
a. Citifinancial, Inc., assigned the Subject Mortgage to Bayview Loan Servicing LLC, by Assignment recorded on March 8, 2016, in Book 21, Page 614.
b. Bayview Loan Servicing, LLC, then assigned the Subject Mortgage to Nationstar Mortgage, LLC, by assignment recorded on September 20, 2022, in Book 23, Page 695.
c. Nationstar Mortgage LLC finally assigned the Subject Mortgage to the Petitioner by assignment recorded on March 22, 2023, in Book 23, Page 765. Copies of the assignments are attached hereto as Exhibit “D”.
12. The note underlying the Subject Deed of Trust is now in default due to lack of payment.
13. The existence of Virginia Bostic’s unresolved interest in the property creates a cloud upon the Winebrimmers’ rights to the Subject Property and a cloud upon their ability to pledge the Subject Property as security in the Subject Mortgage. However, we note that a recital in Deed dated February 24, 1987, from Virdie Bostic, and pertaining to an unrelated piece of property, indicate that Virginia Bostic died without children and that Virdie Bostic was her sole heir. A copy of that deed is attached hereto as Exhibit “E”.
14. A review of publicly available records indicates that Roy Lee Winebrimmer died on October 27, 2021 and was survived by his wife, Cleo Winebrimmer, and his children, Janey Winebrimmer, Janet Winebrimmer, and Jack Winebrimmer, and was not preceded in death by any other children. However, we were unable to locate any probate records in Greenbrier County to preclude the existence of other heirs. A copy of Roy Winebrimmer’s obituary is attached hereto as Exhibit “F”.
15. Furthermore, additional public records indicate Cleo Virginia Winebrimmer died on September 17, 2022, a resident of Greenbrier County, and was preceded in death by her husband Roy Winebrimmer and daughter Nellie J. “Janey” Winebrimmer and was survived by her daughter Janet Sue Winebrimmer and son Robert Jack Winebrimmer, as well as a grandchild, Summer Winebrimmer. However, we were unable to locate any probate records in Greenbrier County to preclude the existence of other heirs. A copy of Cleo Winebrimmer’s obituary is attached hereto as Exhibit “G”.
16. An Affidavit for Small Estate Intestate filed on May 2, 2022, in Will Book 77, Page 409, indicates that Nellie J. Winebrimmer died intestate on November 7, 2021, and that her sole intestate heir was her mother, Cleo V. Winebrimmer. A copy of the Affidavit is attached hereto as Exhibit “H”.
17. Wherefore, Petitioner desires to foreclose on the Subject Deed of Trust, and that Terra Abstract Trustee West Virginia Inc. be named Trustee to conduct the foreclosure sale.
Wherefore, Petitioner seeks equitable relief from the Court to Declare:
(a) That Virginia Bostic predeceased Virgie A. Bostic leaving Virgie A. Bostic her sole legal heir and that title to the Subject Property vested in Virgie A. Bostic upon her death either by spousal share under intestate succession pursuant to W.Va. Code §42- 1-3(a); and
(b) Terra Abstract Trustee West Virginia Inc. as substitute trustee under the Subject Deed of Trust.
Respectfully Submitted,
United Asset Management, LLC
By Counsel:
/s/ Anthony W. Selbe
Anthony W. Selbe (WVSB 11451)
Brandi Leighton-Burger (WVSB 13989)
Stern & Eisenberg, P.C.
1581 Main St., Ste. 200
Warrington, PA 18976
Ph.: (215) 572-8111
Fax: (215) 572-5025
rkeesee@sterneisenberg.com
(4sp)
