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Dubose v. Gastonia Mutual Savings and Loan Association and L. B. Hollowell

Filed: February 2, 1982.

HORACE M. DUBOSE, III, TRUSTEE, AND ROBERT J. BERNHARDT, TRUSTEE, AS THEIR INTERESTS MAY APPEAR
v.
GASTONIA MUTUAL SAVINGS AND LOAN ASSOCIATION AND L. B. HOLLOWELL, JR., TRUSTEE



Appeal by plaintiffs from Ferrell, Judge. Judgment signed 14 November 1980 in Superior Court, Gaston County. Heard in the Court of Appeals 21 October 1981.

Becton, Judge. Judge Clark and Judge Arnold concur.

Becton

Procedural and Factual History

The resolution of this appeal, though simple, requires a painstaking review of transactions that have spawned several other lawsuits, some of which have reached the appellate courts.*fn1

On 30 May 1978, A. C. Burgess, Jr. gave a promissory note to defendants in the amount of $56,000.00. The promissory note was secured by a deed of trust encumbering five residential lots that Burgess personally owned. Burgess ultimately defaulted on the obligation and a foreclosure proceeding was initiated by defendants by the filing on 12 October 1979 of a Notice of Hearing before the Clerk of Court of Gaston County. Significantly, at the time of the 7 November 1979 hearing in this matter, the plaintiffs had received and recorded a sheriff's deed dated 14 February 1979 to the five lots that are the subject of this lawsuit.

Following the 7 November 1979 hearing, the Gaston County Clerk entered an order authorizing defendants to foreclose in accordance with their deed of trust. That order was subsequently affirmed by the Gaston County Superior Court and by this Court in In Re Foreclosure of Burgess, 47 N.C. App. 600, 267 S.E.2d 915 (1980). Although the dispositive issue in In Re Foreclosure of Burgess involved "the scope of the procedures under G.S. 45-21.16 for hearing prior to the exercise of a power of sale under a deed of trust," id. at 602, 267 S.E.2d at 917, we suggested in that case that plaintiffs might have been entitled to injunctive relief. Specifically, we said:

Having received the notice and hearing intended by the statute, [plaintiffs] are now able to utilize the procedure of G.S. 45-21.34 to enjoin the mortgage sale "upon [any] legal or equitable ground which the court may deem sufficient." If and when [plaintiffs] choose to apply for injunctive relief, the dispute over the balance due on the note and deed of trust and the manner in which the balance was computed will certainly be relevant to the issue of [plaintiffs'] right to relief. As to the title dispute, we note that the 12 October 1979 order of superior court declaring the sheriff's deed to DuBose and Bernhardt null and void was reversed by this Court in Questor Corp. v. DuBose, 46 N.C. App. 612, 265 S.E.2d 501 (1980) and the cause was remanded with direction to dismiss the action challenging the validity of that deed.*fn2

Id. at 600, 267 S.E.2d at 918.

On 9 September 1980, defendants filed another Notice of Foreclosure. On 2 October 1980, the plaintiffs, following this Court's suggestion in In re Foreclosure of Burgess, filed their complaint seeking injunctive relief pursuant to G.S. 45-21.34. Plaintiffs contended that the defendants' 9 September 1980 renewed notice of sale should be enjoined and alleged (1) that there was a dispute over the title to the property, over the

balance due under the note, and over the monthly payments due under the note; (2) that the interest rate on the amount owed of 9% compounded monthly was usurious; and (3) that they would suffer irreparable harm if defendants were not enjoined from exercising the power of sale.

Plaintiffs were initially granted a temporary restraining order on 2 October 1980. However, when the motion for injunctive relief was heard on 3 November 1980, Judge Ferrell entered an Order dissolving the temporary restraining order and denying plaintiffs' motion for a preliminary injunction. From this order, plaintiffs appeal to this Court. Significantly, following plaintiffs' notice of appeal, the foreclosure sale was ...


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