IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2022 Term

_____________________

No. 20-0970

_____________________

CLETE PAVONE,

Plaintiff Below, Petitioner

v.

NPML MORTGAGE ACQUISITIONS, LLC, A FOREIGN CORPORATION,

Defendant Below, Respondent

___________________________________________________________

Appeal from the Circuit Court of Monongalia County

Honorable Phillip D. Gaujot, Judge

Civil Action No. 19-C-110

REVERSED AND REMANDED WITH DIRECTIONS

_________________________________________________________

Submitted: January 12, 2022

Filed: March 7, 2022

Edmund J. Rollo, Esq.

Morgantown, West Virginia

Attorney for Petitioner

Buddy Turner, Esq.

Gaydos & Turner, PLLC

Kingwood, West Virginia

Attorney for Respondent

CHIEF JUSTICE HUTCHISON delivered the Opinion of the Court.

JUSTICE ALAN D. MOATS, sitting by special assignment, not participating. 

FILED

March 7, 2021

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
i

SYLLABUS BY THE COURT

1. “Where neither party to an appeal raises, briefs, or argues a 

jurisdictional question presented, this Court has the inherent power and duty to determine

unilaterally its authority to hear a particular case. Parties cannot confer jurisdiction on this 

Court directly or indirectly where it is otherwise lacking.” Syl. Pt. 2, James M.B. v. 

Carolyn M., 193 W. Va. 289, 456 S.E.2d 16 (1995).

2. “‘“In essence, the question of standing is whether the litigant is 

entitled to have the court decide the merits of the dispute or of particular issues.” Warth v. 

Seldin, 422 U.S. 490, 498 [95 S.Ct. 2197, 45 L.Ed.2d 343] (1975).’ Findley v. State Farm 

Mutual Automobile Insurance Company, 213 W.Va. 80, 576 S.E.2d 807 (2002).” Syl. Pt. 

4, Manville Personal Injury Settlement Trust v. Blankenship, 231 W. Va. 637, 749 S.E.2d 

329 (2013). 

3. A litigant who is not a party to a mortgage assignment or a party 

intended to benefit from the assignment lacks standing to challenge the assignment. 
1

HUTCHISON, Chief Justice:

The petitioner, Clete Pavone, appeals the October 27, 2020, final order of the 

Circuit Court of Monongalia County granting summary judgment in favor of the 

respondent, NPML Mortgage Acquisitions, LLC (“NPML Mortgage”). Mr. Pavone filed 

suit against NPML Mortgage in April 2019 after he received a foreclosure notice advising 

him that his real property located in Granville, West Virginia, was going to be sold.1

 Mr. 

Pavone alleged that NPML Mortgage had no lawful right to foreclose on his property 

because it lacked a valid assignment of the deed of trust on the property. The circuit court 

found, however, that the after-acquired title doctrine cured any irregularity in the 

assignment of the deed of trust. 

In this appeal, Mr. Pavone contends that the circuit court erred in its 

application of the after-acquired title doctrine. Upon consideration of the parties’ briefs 

and oral argument, the appendix record, and the relevant authorities, we find that Mr. 

Pavone lacks standing to challenge the assignment of the deed of trust to NPML Mortgage. 

Accordingly, for the reasons set forth below, we reverse the circuit’s court’s decision and 

remand this case for entry of an order dismissing this action for lack of standing. 

1 The notice Mr. Pavone received was from Seneca Trustees, Inc., which indicated 

that it was the substitute trustee under the deed of trust and was conducting the foreclosure 

sale on behalf of NPML Mortgage. Mr. Pavone named Seneca Trustees, Inc., as a 

defendant in his complaint along with NPML Mortgage, but later requested it be dismissed 

from the action. Seneca Trustees, Inc., was dismissed from the action by order of the circuit 

court entered on August 5, 2019. 
2

I. Facts and Procedural Background

Mr. Pavone obtained the subject property by a general warranty deed from 

Patrick Russell on October 21, 2018. Before selling the property to Mr. Pavone, Mr. 

Russell owned the real estate for almost twenty years, having acquired it on June 25, 1999. 

Six months after he purchased the property in 1999, Mr. Russell obtained a $20,000 loan 

from Equity South Mortgage, LLC. The loan was secured by a deed of trust on the subject 

property and was duly recorded in the Office of the Clerk of the County Commission of 

Monongalia County on December 29, 1999. Unbeknownst to Mr. Pavone, the property 

remained encumbered by the deed of trust when he purchased it in 2018.

2

 

The record shows that over the years the deed of trust was assigned to various 

companies with the final assignment to NPML Mortgage. The chain of assignments that 

Mr. Pavone challenged during the proceedings below is as follows:3 (1) the first 

assignment of the deed of trust from Equity South Mortgage, LLC, to EFC Mortgage 

Corporation was made on January 16, 2000, and was recorded on February 7, 2019; (2) the 

second assignment from EFC Mortgage Corporation to Life Bank occurred on January 7, 

2 It appears that Mr. Pavone did not conduct a title search before he bought the 

property.

3 According to the record, there are two entirely separate chains of assignments with 

respect to the deed of trust recorded in the Office of the Clerk of the County Commission 

of Monongalia County, both of which end with NPML Mortgage. However, NPML 

Mortgage does not claim to have obtained its assignment through the first chain as an 

assignment from Equity South Mortgage to the first purported assignee does not exist. 

Accordingly, the first chain of assignments was not at issue in this case. 
3

2000, and was recorded on February 11, 2019; (3) the third assignment from Life Bank to

Franklin Credit Management Corporation was dated August 15, 2005, and was recorded 

on February 12, 2019; (4) the fourth assignment from Franklin Credit Management 

Corporation to Deutsche Bank National Trust Company occurred on February 4, 2009, and 

was recorded on February 13, 2019; and (5) the final assignment from Deutsche Bank

National Trust Company to NPML Mortgage was on January 30, 2019, and was recorded 

on February 14, 2019. 

As set forth above, Mr. Pavone filed suit against NPML Mortgage in April 

2019 after he received the foreclosure notice. By order entered April 29, 2019, the circuit 

court granted a temporary injunction of the foreclosure sale. Thereafter, Mr. Pavone filed 

an amended complaint alleging that NPML did not have a valid assignment of the deed of 

trust. The basis of Mr. Pavone’s claim was the fact that the second assignment of the deed 

of trust from EFC Mortgage Corporation to Life Bank occurred on January 7, 2000, nine 

days before the mortgage was transferred to EFC Mortgage Corporation from Equity South 

Mortgage. Mr. Pavone asserted that the second assignment, which purportedly occurred 

before the first assignment, constituted a “fatal break” in the chain of assignments such that 

there was never a valid assignment of the deed of trust to NPML Mortgage. 

The facts were undisputed, so the parties filed cross-motions for summary 

judgment. Mr. Pavone argued that the deed of trust remained with EFC Mortgage as it 

never assigned its interest after it was obtained on January 16, 2000. Therefore, Mr. Pavone 
4

reasoned that NPML Mortgage did not have a valid assignment of the deed of trust that 

would permit it to foreclose on his property. Conversely, NPML Mortgage maintained that 

it had a valid assignment of the deed of trust pursuant to the after-acquired title doctrine. 

As NPML Mortgage asserted: “The after-acquired title doctrine states that title acquired by 

a grantor, who previously attempted to convey title to land which the grantor did not in fact 

own, inures automatically to the benefit of prior grantees.” Citing 9 Thompson on Real 

Property, Thomas Editions § 82.11 (2020). 

By order dated October 27, 2020, the circuit court denied Mr. Pavone’s 

motion for summary judgment and granted the motion for summary judgment filed by

NPML Mortgage. The circuit court found that the after-acquired title doctrine cured the 

irregularity in the chain of title and that the assignment of the deed of trust to NPML 

Mortgage was valid. Upon entry of the circuit court’s order, Mr. Pavone filed this appeal. 

II. Standard of Review

Mr. Pavone appeals from the circuit court’s order granting summary 

judgment to NPML Mortgage. It is well established that “[a] circuit court’s entry of 

summary judgment is reviewed de novo.” Syl. Pt. 1, Painter v. Peavy, 192 W. Va. 189, 

451 S.E.2d 755 (1994).
5

III. Discussion

Mr. Pavone asserts error with respect to the circuit court’s application of the 

after-acquired title doctrine and its finding that NPML Mortgage has a valid assignment of 

the deed of trust. However, as a threshold matter, we find it is necessary to consider 

whether Mr. Pavone has standing to challenge the assignment of the deed of trust to NPML

Mortgage. “Standing is a jurisdictional requirement that cannot be waived, and may be 

brought up at any time in a proceeding.” Franklin D. Cleckley, Robin J. Davis & Louis J.

Palmer, Jr., Litigation Handbook on West Virginia Rules of Civil Procedure § 12(b), at 21 

(Supp. 2004); see also State ex rel. Paul B. v. Hill, 201 W. Va. 248, 256, 496 S.E.2d 198, 

206 (1997) (noting that “standing is an element of jurisdiction over the subject matter”). 

Although neither party raised the issue below or in their initial briefing of this appeal, we 

have the authority to sua sponte address the issue as this Court has previously held: 

Where neither party to an appeal raises, briefs, or argues 

a jurisdictional question presented, this Court has the inherent 

power and duty to determine unilaterally its authority to hear a 

particular case. Parties cannot confer jurisdiction on this Court 

directly or indirectly where it is otherwise lacking. 

Syl. Pt. 2, James M.B. v. Carolyn M., 193 W. Va. 289, 456 S.E.2d 16 (1995); see also State 

ex rel. Abraham Linc Corp. v. Bedell, 216 W. Va. 99, 111, 602 S.E.2d 542, 554 (2004) 

(Davis, J., concurring) (“The decisions of this Court and other jurisdictions have pointed 

out that an appellate court has the inherent authority and duty to sua sponte address the 
6

issue of standing, even when the parties have failed to raise the issue at the trial court level 

or during a proceeding before the appellate court.”).4

“[S]tanding is defined as ‘[a] party’s right to make a legal claim or seek 

judicial enforcement of a duty or right.’” Findley v. State Farm Mut. Auto. Ins. Co., 213 

W. Va. 80, 94, 576 S.E.2d 807, 821 (2002) (quoting Black’s Law Dictionary 1413 (7th ed.

1999)). As this Court has observed, 

“‘[i]n essence, the question of standing is whether the 

litigant is entitled to have the court decide the merits of the 

dispute or of particular issues.’ Warth v. Seldin, 422 U.S. 490, 

498 [95 S.Ct. 2197, 45 L.Ed.2d 343] (1975).” Findley v. State 

Farm Mutual Automobile Insurance Company, 213 W.Va. 80, 

576 S.E.2d 807 (2002).

Syl. Pt. 4, Manville Personal Injury Settlement v. Trust v. Blankenship, 231 W.Va. 637, 

749 S.E.2d 329 (2013). Stated another way, “when standing is placed in issue in a case, 

the question is whether the person whose standing is challenged is a proper party to request 

an adjudication of a particular issue[.]” Findley, 213 W. Va. at 95, 576 S.E.2d at 822 

(additional citation omitted). 

In this case, the focus of our standing inquiry is whether Mr. Pavone is the 

proper party to challenge the assignment of the deed of trust to NPML Mortgage given that 

4 While the parties did not raise the issue, after oral argument of this appeal, this

Court ordered the parties to file simultaneous supplemental briefs addressing Mr. Pavone’s 

standing to bring the action before the circuit court. 
7

he was not a party to the assignment contract. In fact, Mr. Pavone was not the borrower. 

This Court had long recognized that the “prudential standing rule . . . normally bar litigants 

from asserting the rights or legal interests of others in order to obtain relief from an injury 

to themselves.” Kessel v. Leavitt, 204 W. Va. 95, 118, 511 S.E.2d 720, 743 (1998) (quoting 

Warth v. Seldin, 422 U.S. 490, 509, 95 S.Ct. 2197, 2210, 45 L.Ed.2d 343, 361 (1975)). In 

other words, “[o]ne specific aspect of standing is that one generally lacks standing to assert 

the rights of another.” State ex rel. Leung v. Sanders, 213 W. Va. 569, 578, 584 S.E.2d 

203, 212 (2003). Indeed, 

[t]raditionally, courts have been reluctant to allow 

persons to claim standing to vindicate the rights of a third party 

on the grounds that third parties are generally the most 

effective advocates of their own rights and that such litigation 

will result in an unnecessary adjudication of rights which the 

holder either does not wish to assert or will be able to enjoy 

regardless of the outcome of the case

Snyder v. Callaghan, 168 W. Va. 265, 279, 284 S.E.2d 241, 250 (1981). 

Although this Court has not previously considered whether a litigant who is 

not a party to an assignment has standing to challenge the assignment, courts that have 

considered the issue in the context of mortgage assignments have concluded that such a 

litigant has no standing. For example, in Marcuzzo v. Bank of the West, 862 N.W.2d 281 

(Neb. 2015), the mortgagors, Brian and Donna Marcuzzo, filed suit against Wells Fargo 

Bank, the Federal National Mortgage Association, and Bank of the West following the 

foreclosure and subsequent sale of their residence. All of the Macuzzos’ claims were based 

on their contention that the assignment of their mortgage was improper. Specifically, the 
8

Marcuzzos asserted that there was a defective assignment of their mortgage because a 

Wells Fargo employee signed documents that should have been signed by a Bank of the 

West employee and, further, the wrong loan servicing number had been used. As in the 

case at bar, the lower court granted summary judgment in favor of the defendant banks. 

On appeal, the Marcuzzos argued, inter alia, that there were genuine issues of fact with 

regard to the assignment of their mortgage. The Supreme Court of Nebraska, concluded, 

however, that the Marcuzzos “lack[ed] standing to attack the assignment of their 

mortgage.” 862 N.W.2d at 289. 

In finding the Marcuzzos did not have standing to challenge the assignment 

of their mortgage, the Nebraska court reasoned:

[S]tanding requires that a plaintiff show his or her claim 

is premised on his or her own legal rights as opposed to rights 

of a third party. Accordingly, Nebraska law states that “only a 

party (actual or alleged) to a contract can challenge its 

validity.” “‘[T]he fact that a third party would be better off if a 

contract were unenforceable does not give him standing to sue 

to void the contract.’” Parties can recover as third-party 

beneficiaries of a contract only if it appears that the rights and 

interest of the third parties “‘were contemplated and that 

provision was being made for them.’”

Though we have never addressed the more specific 

question of whether a borrower has standing to challenge the 

assignment of their mortgage, it follows from these rules that a 

borrower who is not a party to a mortgage assignment, or a 

party intended to benefit from the assignment, lacks standing 

to challenge the assignment.

While not many courts have addressed this specific 

question, the majority of courts have found under these 

principles that borrowers do not have standing to challenge an 
9

assignment of their mortgage, because they are not a party to 

the assignment contract. This is true even if there is proof that 

the assignment is somehow flawed. Where the mortgage 

assignment does not alter the borrower’s obligations under the 

note or mortgage, and no injury is traceable to the mortgage 

assignment, the borrowers simply have shown no injury. In 

reaching this conclusion, courts rely on the general commonlaw principle that the maker of a promissory note cannot 

challenge his or her obligations under the note by asserting that 

an invalid assignment had occurred.

862 N.W.2d at 289-90 (footnotes and citations omitted).

Similarly, in Ames v. JP Morgan Chase Bank, N.A.,783 S.E.2d 614 (Ga. 

2016), the mortgagors, Cindy and David Ames, filed suit when Chase Bank initiated a 

foreclosure sale on their property. The Ameses alleged that the assignment of the security 

deed was invalid because the power of attorney authorizing Chase Bank to make the 

assignment expired before the assignment was completed. Finding that the Ameses did 

not have standing to challenge to the assignment, the Supreme Court of Georgia explained:

The assignment of a security deed is a contract between 

the deed holder and the assignee. See Bank of Cave Spring v. 

Gold Kist, Inc., 173 Ga.App. 679, 680, 327 S.E.2d 800 (1985). 

And a lawsuit on a contract generally may be brought only by 

a party to the contract or an intended third-party beneficiary of 

the contract. See OCGA § 9–2–20. The debtor normally is not 

a party to an assignment of the deed, and the Ameses clearly 

were not a party to the assignment at issue here.

* * * *

[T]he debtor cannot . . . dispute the assignment; that 

may normally be done only by the assignor, because the debtor 

is not a third-party beneficiary of the assignment as a whole 

and particularly is not intended to directly benefit from the 

transfer of the power of sale. “‘[S]tatus as a third-party 
10

beneficiary does not imply standing to enforce every promise 

within a contract, including those not made for that party’s 

benefit.’ To the contrary, ‘a third party beneficiary . . . can only 

enforce those promises made directly for his benefit.’” Archer 

W. Contractors., Ltd. v. Estate of Pitts, 292 Ga. 219, 226–227, 

735 S.E.2d 772 (2012) (citations omitted). The Ameses were 

plainly not intended third-party beneficiaries of the assignment 

at issue here.

Ames, 783 S.E.2d at 620. 

Likewise, in Harnett v. M&T Bank, 204 F.Supp.3d 851 (E.D. Va. 2016), 

another court rejected an attempt by borrowers to prevent the foreclosure on their property 

based an alleged improper assignment of the deed of trust. Again, the decision was based 

on a lack of standing. As that court explained: 

[T]he Hardnetts have no standing to dispute the 

assignment of the Deed of Trust based on alleged improper 

notarization on the document and a failure to publicly record 

the assignment. They are neither parties to the assignment nor 

the intended beneficiaries of the assignment. Bennett v. Bank 

of Am., N.A., No. 3:12cv34, 2012 WL 1354546, at *7 (E.D.Va. 

Apr. 18, 2012) (noting that “the validity of the assignment does 

not affect whether [a] [b]orrower owes its obligations, but only 

to whom [a] [b]orrower is obligated” (alterations in original) 

(citation omitted)); Wolf v. Fed. Nat'l Mortg. Ass'n, 830 

F.Supp.2d 153, 161 (W.D.Va.2011), aff'd, 512 Fed.Appx. 336 

(4th Cir.2013). Because the Hardnetts lack standing to 

challenge the assignment of the Deed of Trust, any claim based 

on such assignment fails.

Harnett, 204 F.Supp.3d at 858. Several other courts have reached the same conclusion. 

See Haynes v. McCalla Raymer, LLC, 793 F.E2d 1246, 1251 (11th Circ. 2015) (borrowers 

lack standing to bring their claim because they “are not parties to the assignment they are 

challenging”); Farkas v. GMAC Mortg., L.L.C., 737 F.3d 338, 342 (5th Cir. 2013) (a non-
11

party mortgagor “lacks requisite standing” to challenge assignment of deed of trust); Yuille 

v. American Home Mortg. Services, Inc., 483 Fed.Appx. 132, 135 (6th Cir. 2012) 

(defaulting borrower “as a stranger to the [mortgage] assignment, lacked standing to 

challenge its validity”); Hopper v. Mortgage Electronic Registrations Systems, Inc., No. 

3:18-cv-00034-FDW-DSC, 2018 WL 1278204, at *3 (W.D. N.C. Mar. 12, 2018) 

(mortgagor lacked standing to challenge assignment of deed of trust because “person who 

is not a party to the assignment or an intended beneficiary does not possess standing to 

assert a claim based on the assignment’s validity”); Ukaegbu v. Select Portfolio Servicing, 

Inc., No. PWG-16-3415, 2017 WL 2930465, at *4 (D. M.D. July 7, 2017) (“Ukaegbu 

insists that ‘no transfer of possession, endorsements or any chain of assignments exists and 

in fact never took place,’ thereby challenging whether MERS could, as nominee for MLN, 

assigned MLN’s rights to the Deed of Trust to Wells Fargo in the Assignment of Deed . . .

But, Plaintiff is neither a party to nor a beneficiary of this contract and therefore he lacks 

standing to challenge it.”); Lawson v. Bank of America, N.A., No. 12–cv–14326, 2014 WL 

4374379, at *4 (E.D. Mich. Sept. 4, 2014) (“Plaintiffs challenges to the foreclosure and 

sale rest on the alleged invalidity of the assignment of the mortgage and note from 

Countrywide/MERS to defendant. Plaintiffs lack standing to challenge the assignment.”);

Hunt v. Select Portfolio Servicing, Inc., No. 11-14067, 2012 WL 6193865, at *4 (E.D. 

Mich. Dec. 12, 2012) (“Even if there were defects in the assignments [of note and 

mortgage] . . . .and even if such defects would destroy the chain of title, Plaintiff 

nevertheless lacks standing to raise such defects. Plaintiff is not a party to the assignments 

in question.”); Paatalo v. J.P. Morgan Chase Bank, N.A., No. CV-10-119-BLG-CSO, 2012 
12

WL 2505742, at *7 (D. Mont. June 28, 2012) (“To the extent that Paatalo challenges the 

validity of the various assignments, purchase agreements, and pooling or servicing 

agreements, this Court concludes, as many courts have previously held, that a borrower 

does not have standing to challenge assignments and agreements to which it is not a 

party.”); Wolf v. Fed. Nat. Mortg. As’n, 830 F.Supp.2d 153, 161 (W.D. Va. 2011) (“Wolf 

is not a party to the assignment from MERS to BAC [and] is not an intended beneficiary 

of the assignment which is, to be sure, a contract . . . As such, she lacks standing to 

challenge the assignment’s validity.”).

Notably, some courts have recognized an exception, allowing debtors to 

challenge an assignment that is truly void. As the Marcuzzo court explained, 

if the borrower was at risk of paying the same debt twice, then 

the borrower could establish a concrete injury arising from the 

improper assignment of the mortgage. If the borrower can 

show any injury that is directly traceable to the assignment of 

the mortgage, then, under this exception, the borrower would 

have standing to challenge that assignment. 

862 N.W.2d at 290-91; see also Livonia Properties Holdings, LLC v. 12840-12976 

Farmington Road, 399 Fed.Appx. 97, 102 (6th Cir. 2010) (explaining that an obligor may 

assign as a defense to foreclosure any matter that renders an assignment void “because they 

cannot otherwise protect themselves from paying the same debt twice”). Obviously, in 

this case, Mr. Pavone could not make such a claim as he was not the borrower and, 

therefore, was not subject to paying the debt in the first instance. 
13

Having considered the foregoing authorities, we now hold that a litigant who 

is not a party to a mortgage assignment or a party intended to benefit from the assignment 

lacks standing to challenge the assignment. Applying our holding to this case, we find that 

Mr. Pavone does not have standing to challenge the validity of the assignment of the deed 

of trust to NPML Mortgage. The facts as presented show that Mr. Pavone was not a party 

to the assignment of the deed of trust nor was he intended to benefit from the assignment. 

Accordingly, Mr. Pavone’s civil action must be dismissed because he does not have 

standing to pursue his claim.5 

IV. Conclusion

For the reasons set forth above, the final order of the circuit court entered on 

October 27, 2020, is reversed, and this case is remanded to the circuit court for entry of an 

order dismissing this action for lack of standing. 

Reversed and remanded with directions. 

5 Having found that Mr. Pavone lacks standing to bring this action, we will not 

address the merits of his appeal.