Published: July 20, 2009 11:00 pm      

Subdivision legal dispute drags on

CATLETTSBURG — Nearly two years after Boyd County officials first promised residents of Tristen Way they would pave their road — and three years after residents began asking for help — the county still lacks legal authority to do so.

County Judge Executive William “Bud” Stevens said officials believe they may soon have that authority. Once the county owns the road, Stevens said, he believes it could be paved within 30 days.

But as of July 15 officials were still uncertain who holds the title to the road despite residents of the neighborhood having signed easements to the county for right-of-way to the street.

According to assistant county attorney Dan King, the home owners along the street do not own the road and therefore can not give easements to the county. King said he is uncertain who told homeowners giving the county an easement would solve the problem.

“I can’t do anything until I get an easement from somebody who has the right to give an easement and the landowners don’t,” King said.

Through his research on the issue over the last several years, King said he’s found evidence that when the subdivision was laid out the road was separated from the individual plots sold to landowners. The roads were included in the plots with large undeveloped tracts in the subdivision, which were once owned by Tri-Level LLC before the company became insolvent.

Now, King said, “I think People’s Bank owns the road.”

A subdivision’s woes

Progress has come slowly to Tristen Way, located in the Lakinview Heights subdivision. The road and many of the homes along it were abandoned by the now defunct Franz Group and its various subsidiaries when the company began experiencing financial difficulties in 2006.

Tristen Way and Taylor Lane, along with many of the streets’ homes, were only partially constructed when the parent company first filed bankruptcy in December 2006.

In the years that have followed, dozens of other lawsuits have plagued the development and homeowners who thought they had purchased their homes free and clear of construction debts.

The situation has been improving of late, following the purchase of most of the unfinished properties out of foreclosure by retired educator Mike Clevenger and Chris and Amy Fannin of Fannin Motors.

Working together, the Fannins and Clevenger have finished all the partially constructed homes and resold nearly all of them. Last week, at the Boyd County Fiscal Court meeting, they turned over signed easements from themselves and all the property owners along the road, expecting the county would be able to adopt the road into its system and make the needed improvements.

Boyd County officials did step in last May to make limited improvements. The fiscal court declared a public safety emergency to exist on the road and made limited improvements to ensure access by emergency vehicles.

Title search

According to King, once the true owner of the road is located he could finish preparing the deed for the county to adopt the road into its system “in 30 seconds.”

“That’s been the hold up, no one has stepped up to the plate that has an unencumbered right to convey easement to the county. The county can not take that roadway into the system until they get an easement. It’s not the fault of the fiscal court; it’s the fault of someone else,” King said.

If the Fannins have taken title to the property, they have not had their deed recorded at the Boyd Courthouse, according to King.

For that reason, he believes they haven’t taken title although they purchased the property at the Master Commissioner’s auction last December following the foreclosure by People’s Bank.

King said it appears People’s Bank did not file a legal document called a Lis Pendes before the subsequent foreclosure suit was filed, which would have stopped any other liens from being filed on the property once it was sold at auction. According to court documents, after the foreclosure lawsuit was in fact filed, another creditor filed a lien for approximately $500,000 on the property.

If the Fannins took title of the property before that lien is settled, then they could be liable to pay the lien, King said. That he suspects could be causing the delay in the couple recording the deed.

King said despite repeated attempts to explain the situation to the Fannins, neither they nor their attorney Bruce Leslie will return his correspondences.

The Fannins did not returned calls seeking comment and Leslie declined to comment saying the issue was a “client matter.”

Another legal

struggle

After ownership of the road, the most pressing legal issue plaguing the neighborhood is the fate of four vacant lots along Tristen Way. The now defunct Tri-Level LLC, once a subsidiary of the Franz Group, is listed as the properties owners but Fifth Third Bank holds liens on the property.

Despite bankruptcy filings by Tri-Level, The Franz Group and both Jason and Jeff Franz, the bank has never foreclosed on the property and claims it has no responsibility for the condition of the lots.

In December 2007, county officials condemned four partially built structures on the lots and demolished them, citing public health concerns.

At that time, Alan Statman, an attorney for Fifth Third, said the bank would begin foreclosure actions soon, but three years later that still has not happened.

Fifth Third Bank officials would not return calls requesting comment this week.

King, who also handled the condemnation proceedings on the properties, said he “simply cannot understand why they have not filed suit, except there are master commissioner fees and advertising fees, etc., that the plaintiff must advance in order to get the property sold.”

King added, “Perhaps they have decided that it is not worth the expense, but I have to believe that the bank examiners are aware of these bad loans and will eventually force Fifth Third to take some action.”

CARRIE STAMBAUGH can be reached at cstambaugh@dailyindependent.com or (606) 326-2653.