An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in
accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of
A   p   p    e   l   l   a    t   e       P   r    o   c   e   d   u    r   e   .



                              NO. COA14-42
                     NORTH CAROLINA COURT OF APPEALS

                            Filed:    17 June 2014


BANK OF AMERICA, N.A.,
     Plaintiff,

      v.                                 Mecklenburg County
                                         No. 13 CVS 2168
CHARLOTTE PROPERTY INVESTMENTS,
LLC, and WILLIAM C. GATHINGS,
     Defendants.


      Appeal   by   defendant     Charlotte    Property    Investments,      LLC

from order entered 17 October 2013 by Judge Robert C. Ervin in

Mecklenburg     County   Superior     Court.      Heard   in   the   Court    of

Appeals 5 May 2014.


      Johnston, Allison & Hord, P.A., by Greg C. Ahlum and Ryan
      P. Hoffman, for plaintiff–appellee.

      Cranford, Buckley, Schultze, Tomchin, Allen & Buie, P.A.,
      by R. Gregory Tomchin, for defendant–appellant Charlotte
      Property Investments, LLC.


      MARTIN, Chief Judge.


      Defendant Charlotte Property Investments, LLC (“defendant

CPI”) appeals from an order which granted summary judgment in

favor of plaintiff Bank of America, N.A. (“plaintiff Bank”) on
                                          -2-
plaintiff     Bank’s        claim    to   quiet       title,        and    decreed       that

plaintiff Bank’s Deed of Trust is a valid encumbrance on the

property at issue from the date of recordation and that this

property——which is now owned by defendant CPI——is subject to

plaintiff Bank’s Deed of Trust.                We affirm.

    The evidence in the record tended to show that, on 31 July

2001,   a   North     Carolina       General      Warranty     Deed       (“the    Warranty

Deed”) was recorded in the Mecklenburg County Register of Deeds,

which    conveyed      to    Grantee      William      C.    Gathings         (“defendant

Gathings”) the property described as follows:

             BEING all of Lot 39 of BELMEADE GREEN,
             Phase 1, Map 1, as same is shown on a
             revised map thereof recorded in Map Book 33,
             page 679, in the office of the Register of
             Deeds   for    Mecklenburg   County,   North
             Carolina.

The physical address for the property was designated                                in the

Warranty     Deed   as      2816 Oasis       Lane,    Charlotte,          North    Carolina

28214, the brief description for the real estate index listing

was “Lot 39 of Belmeade Green,” and the parcel ID number was

“053-074-33.”

    On      13 June    2003,     a    Deed    of     Trust   was     recorded       in   the

Mecklenburg     County        Register       of    Deeds,      in     which       defendant

Gathings was designated as the Borrower and Countrywide Home

Loans, Inc. (“Countrywide”) as the Lender.                          In exchange for a

loan of $117,000.00, defendant Gathings, as the Borrower on a
                                       -3-
note   that    was   dated   5 June    2003,   “irrevocably      grant[ed]   and

convey[ed]” property described in the Deed of Trust as follows:

              Lying and being in Crab Orchard Township,
              Mecklenburg County,    North Carolina, and
              being   all   of  Lot   No. 149   of   Hickory
              Ridge 6B, Map #5, and being on file in the
              Office   of   the  Register   of   Deeds   for
              Mecklenburg County, North Carolina, in Map
              Book 21,    Page 150,    specific    reference
              thereto being made for a more complete
              description thereof by metes and bounds.

The description of the property in the Deed of Trust further

indicated that the parcel ID number was “053 074 33,” and that

the    property      description      “currently     has   the    address    of”

2816 Oasis Lane, Charlotte, North Carolina 28214, both of which

are the same as the parcel ID number and the physical address of

the property that is the subject of the Warranty Deed.

       According     to   plaintiff   Bank,    in   July 2010,    the   Belmeade

Green Homeowners’ Association, Inc. (“the HOA”) filed a claim of

lien for past due homeowners’ association dues in the amount of

$110.00, and this claim of lien referenced the same physical

address to which both the Warranty Deed and the Deed of Trust

refer:    2816 Oasis Lane, Charlotte, North Carolina 28214.                  The

parties agree that the HOA subsequently foreclosed on this claim

of lien, that defendant CPI was the highest bidder for this

property at the foreclosure with an upset bid of $3,253.25, and

that this property was conveyed to defendant CPI.                In June 2011,
                                        -4-
the Association Lien Foreclosure Deed (“the Foreclosure Deed”),

later    filed     in   the     Mecklenburg    County      Register       of   Deeds,

described the property conveyed by the HOA to defendant CPI as

“the same property described in the [Warranty Deed] recorded in

Deed Book 12508, at Page 753 of the Mecklenburg County Public

Registry,” and included the same description as that which was

included in the Warranty Deed:

               Being all of Lot 39 of Belmeade Green,
               Phase 1, Map 1, as same is shown on a
               revised map thereof recorded in Map Book 33,
               Page 679, in the Office of the Register of
               Deeds   for    Mecklenburg   County,   North
               Carolina.

       Daoshan Sun,       a manager for defendant CPI,              stated in an

affidavit      that,    prior   to    submitting    the    upset    bid    for   this

property on behalf of defendant CPI, he searched the real estate

index of the Mecklenburg County public records, and that his

search    “did    not   reveal    a   Deed    of   Trust   against    William      C.

Gaithing’s [sic] property with the legal description of Lot 39,

Belmead [sic] Green.”           The brief legal description for the Deed

of Trust that appears in the Mecklenburg County Register of

Deeds’    real      estate      index    search      reads    “LT 149          HICKORY

RIDGE 6 B,” whereas the brief legal description for the Warranty

Deed    that    appears   in    the   index   reads   “LT 39       BELMEADE      GREEN

PH 1.”

       Plaintiff Bank filed a Complaint against defendants CPI and
                                          -5-
Gathings alleging that:          “[d]ue to an error on the part of the

draftsman, the lot and block legal description in the Deed of

Trust   does    not   describe      the    Property     but,      rather,   describes

Lot 149 of Hickory Ridge Subdivision (‘Lot 149’)”; “[defendant]

Gathings   has    never      owned    an    interest        in    Lot 149”;    “[t]he

inclusion of the lot and block legal description of Lot 149 in

the Deed of Trust instead of the lot and block legal description

of the property was a mutual mistake of fact as between the

parties to the Deed of Trust”; and the Deed of Trust is now held

by plaintiff Bank.        Plaintiff Bank prayed that the trial court

enter an order “reforming the Deed of Trust to replace the lot

and block legal description of Lot 149 with the Lot and Block

legal   description     of    the    Property”;       or,   in     the    alternative,

enter an order “declaring a constructive trust upon title to the

Property granting [plaintiff Bank] a first position lien on the

Property” relating back to the date on which the Deed of Trust

was recorded; enter an order “quieting title to the Property in

the name of [defendant] CPI subject to the Deed of Trust”; or,

in the alternative, enter judgment in favor of plaintiff Bank

and   against    defendant     Gathings         for   plaintiff     Bank’s    “actual

damages    arising     from      Gathings’        breach     of     the     warranties

contained in the Deed of Trust.”

      Plaintiff Bank and defendant CPI filed cross-motions for
                                          -6-
summary judgment, which motions were heard in October 2013.                            In

support of its motion for summary judgment and in opposition to

plaintiff Bank’s motion, defendant CPI submitted affidavits from

its manager, Daoshan Sun, in which Mr. Sun described his search

of the real estate index in the Mecklenburg County Register of

Deeds   for    property     “with       the    legal    description       of    Lot 39,

Belmead [sic] Green,” and attested that neither his search of

the index nor his personal examination of the real property gave

him any “reason to be aware of [plaintiff Bank’s] claim against

the   real    property.”         In   support     of    its   motion   for      summary

judgment, plaintiff Bank submitted affidavits from William C.

Parise, an attorney with six years’ of experience performing

“thousands     of   title    searches,”         who    conducted    his    own      title

search of the property that is the subject of the Warranty Deed.

Mr. Parise attested that:               although the Warranty Deed and the

Deed of Trust “contain different lot and block references, they

contain the same property address (2816 Oasis Lane, Charlotte)

and the same parcel ID number (053-074-33)”; his search of the

property     referenced     by    lot    and    block    in   the   Deed       of   Trust

“showed that [defendant] Gathings has never owned an interest in

the property referenced by lot and block in the Deed of Trust”;

because the two deeds contained the same property address and

parcel ID number, and because defendant Gathings “never owned
                                            -7-
the property referenced by lot and block in the Deed of Trust,”

he included the Deed of Trust as “a possible encumbrance of the

Property”; and “[u]sing the proper standard of care, a title

searcher cannot rely solely on the index with regard to recorded

documents.”

    On 17 October 2013, the trial court entered an order in

which it decreed that plaintiff Bank’s Deed of Trust is a valid

encumbrance        on    the    property     from     the     date    of    recordation,

adjudged that the property is owned by defendant CPI subject to

plaintiff     Bank’s      Deed      of   Trust,     granted      summary     judgment    in

favor of plaintiff Bank on its claim for quiet title, and denied

defendant     CPI’s      motion      for   summary     judgment.           Defendant    CPI

appeals.

                               _________________________

    Defendant           CPI    first     contends    the     trial     court   erred    by

determining that the Deed of Trust is a valid encumbrance on the

property      at   issue       because     it     contains       an   “erroneous   legal

description.”           Defendant CPI asserts that this description was

not sufficient to have put it on notice that the Deed of Trust

encumbered the property.

    “A deed purporting to convey an interest in land is void

unless   it    contains         a   description      of    the    land     sufficient   to

identify it or refers to something extrinsic by which the land
                                      -8-
may be identified with certainty.”           Overton v. Boyce, 289 N.C.

291, 293, 221 S.E.2d 347, 349 (1976).           Moreover, “[a] deed of

trust containing a defective description of the subject property

is a defective deed of trust and provides no notice, actual or

constructive,    under   our   recordation    statutes.”    Fifth     Third

Mortg. Co. v. Miller, 202 N.C. App. 757, 761, 690 S.E.2d 7, 9–

10, disc. review denied, 364 N.C. 601, 703 S.E.2d 445 (2010).

Nevertheless, it has long been recognized that “[a] purchaser

. . . has constructive notice of all duly recorded documents

that a proper examination of the title should reveal.”           Stegall

v. Robinson, 81 N.C. App. 617, 619, 344 S.E.2d 803, 804, disc.

review denied, 317 N.C. 714, 347 S.E.2d 456 (1986).              Such an

examination     has   been     said    to   “charge[]   purchasers     with

constructive notice of all that could be discovered by a search

of the deeds and records, whether within the direct chain of

conveyances or outside the direct chain of conveyances,” id. at

621, 344 S.E.2d at 805 (internal quotation marks omitted), so

that “the title examiner must look at each deed of any tract of

land of both immediate and prior grantors that was executed

during each one’s ownership of the land in question.”                Id. at

621, 344 S.E.2d at 805–06 (internal quotation marks omitted).

    In the present case, defendant CPI urges that Fifth Third

Mortgage Co. requires us to conclude that the trial court erred
                                           -9-
by determining that the property at issue is encumbered by the

Deed of Trust.          See Fifth Third Mortg. Co., 202 N.C. App. at

758, 760–61, 690 S.E.2d at 9–10 (affirming the trial court’s

order which determined that a subsequent purchaser of property

did not have constructive notice of a deed of trust because the

deed contained an erroneous description of the property securing

the    debt   that    described      the    property      as   being    located      in   a

different county from both the county in which the property was

actually      located     and      the     county    in    which       the    deed    was

registered).         Although a deed of trust containing an inaccurate

description of the subject property is “defective” and “provides

no     notice,   actual       or     constructive,        under    our       recordation

statutes,” see id. at 761, 690 S.E.2d at 9–10, here, the record

indicates that the Deed of Trust contained the correct physical

address and parcel ID number, thereby referring to extrinsic

sources from which the land could be identified with certainty.

See Overton,      289 N.C. at 293,           221 S.E.2d at 349.                Moreover,

defendant CPI conducted an inadequate title examination, relying

solely on the brief description in the real estate index, rather

than    examining      all    duly     recorded     documents      “executed      during

[Gathings’] ownership of the” subject property.                          See Stegall,

81 N.C. App. at 621, 344 S.E.2d at 805–06 (internal quotation

marks    omitted);      see     also     Waters     v.    N.C.    Phosphate       Corp.,
                                        -10-
310 N.C.    438,    441–42,      312 S.E.2d     428,    432      (1984)   (“The    law

contemplates that a purchaser of land will examine each recorded

deed and other instrument in his chain of title and charges him

with notice of every fact affecting his title which an accurate

examination of the title would disclose.”).                   For this reason, we

conclude the Deed of Trust, by referring to the correct physical

address and parcel ID number, was sufficient to identify the

parcel with certainty and to provide constructive notice of the

lien.

      Defendant CPI next contends plaintiff Bank has failed to

establish that it holds the Deed of Trust and, therefore, is not

entitled    to   prevail    at    summary      judgment     on    its   quiet    title

action.

      An action to quiet title is controlled by N.C.G.S. § 41-10,

which provides, in part, that “[a]n action may be brought by any

person against another who claims an estate or interest in real

property adverse to him for the purpose of determining such

adverse claims . . . .”           N.C. Gen. Stat. § 41-10 (2013).                 “The

beneficial purpose of this section is to free the land of the

cloud resting upon it and make its title clear and indisputable,

so   that   it     may   enter    the   channels       of   commerce      and    trade

unfettered and without the handicap of suspicion.”                         Heath v.

Turner, 309 N.C. 483, 488, 308 S.E.2d 244, 247 (1983).                          “In an
                                  -11-
action to quiet title, the burden of proof is on the plaintiff

to establish his title,” id., which may be done “by traditional

methods or by reliance on the Real Property Marketable Title

Act.”   Id.; see also Mobley v. Griffin, 104 N.C. 112, 115–16,

10 S.E. 142, 142–43 (1889) (setting out the traditional methods

of proving title).        To make a prima facie showing of title

through traditional methods, plaintiffs “may offer a connected

chain of title.”      Heath, 309 N.C. at 489, 308 S.E.2d at 247.

     In the present case, the record includes the Deed of Trust,

which   identifies     Countrywide    as    the   Lender   and   defendant

Gathings   as   the   Borrower.      Plaintiff    Bank   supplemented   the

record on appeal pursuant to Appellate Rule 9(b)(5)(a) with an

Assignment of Deed of Trust, which provides that the same Deed

of Trust for property with the address of 2816 Oasis Lane in

Charlotte, North Carolina, recorded with the Mecklenburg County

Register of Deeds on 13 June 2003 has since been assigned and

transferred from Countrywide to “BAC Home Loans Servicing, LP

FKA Countrywide Home Loans Servicing, LP,” of which plaintiff

Bank is a “successor by merger.”           There is no transcript of the

summary judgment hearing before the trial judge included in the

record on appeal.       Rule 9(a)(1)(j) of the North Carolina Rules

of Appellate Procedure provides that copies of “papers filed”

“in the trial court which are necessary to an understanding of
                                    -12-
all issues presented on appeal” “shall” be contained in the

record   on   appeal.      N.C.R.    App.     P. 9(a)(1)(j).         Appellate

Rule 9(b)(5)(a) provides that a party “may supplement the record

on appeal with any items that could otherwise have been included

pursuant to this Rule 9” “[i]f the record on appeal as settled

is   insufficient   to    respond   to     the   issues   presented     in   an

appellant’s   brief.”      N.C.R.    App.    P. 9(b)(5)(a).      Thus,       the

record is only to contain documents that were before the trial

court and, in the absence of any objection from defendant CPI to

plaintiff Bank’s supplement to the record, we must assume that

the Assignment of Deed of Trust was before the trial court.

Therefore,    plaintiff    Bank     had     standing,     pursuant    to     the

assignment, to file the claims brought in this action, and this

argument is without merit.

      Affirmed.

      Judges STEELMAN and DILLON concur.

      Report per Rule 30(e).
