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Basmas v. Wells Fargo Bank N.A.

Court of Appeals of North Carolina

October 7, 2014

HRISTOS BASMAS and MARIA BASMAS, Plaintiffs,
v.
WELLS FARGO BANK NATIONAL ASSOCIATION, CARRINGTON MORTGAGE SERVICES, LLC AND NATIONWIDE TRUSTEE SERVICES, INC., as Substitute Trustee, Defendants

Heard in the Court of Appeals August 11, 2014.

Iredell County. No. 12 CVS 1684.

Elliott Law Firm, PC, by Michael K. Elliott for plaintiff-appellants.

RCO Legal, P.S., by Susan B. Shaw, for defendant-appellee.

STEELMAN, Judge. Judges ERVIN and McCULLOUGH concur.

OPINION

Page 537

STEELMAN, Judge.

Appeal by plaintiffs from order entered 5 December 2012 by Judge Hugh B. Lewis in Iredell County Superior Court.

The effect of plaintiffs' discharge in bankruptcy on foreclosure proceedings was not preserved for appellate review. The trial court's order allowing foreclosure is affirmed.

I. Factual and Procedural Background

On 29 September 2006 Hristos and Maria Basmas (plaintiffs) borrowed $304,056.00 from New Century Mortgage Corporation for the purpose of purchasing residential property located in Iredell County, North Carolina. The loan was secured by a deed of trust on plaintiffs' property, which was recorded in the Iredell County Registry of Deeds. On 19 December 2006, the loan was sold to Wells Fargo (defendant). In conjunction with the sale of the loan, the original Note was " indorsed in blank by New Century" and transferred to Wells Fargo, with Deutsche Bank being the custodian of the original Note for Wells Fargo.

In 2009 plaintiffs became delinquent in their mortgage payments; they failed to make the payment due on 1 March 2009, and have made no payments towards their debt since that time. On 9 September 2010 the substitute trustee filed a petition in Iredell County case No. 10 SP 1503, seeking to foreclose on the note and deed of trust. On 6 September 2011 the Iredell County Clerk of Court entered an order allowing defendant to proceed with foreclosure. Plaintiffs appealed to the Superior Court of Iredell County, and on 2 November 2011 Judge Theodore S. Royster, Jr., entered an order stating in relevant part that:

1. On or about September 29, 2006, a Promissory Note ('the Note') was executed in favor of New Century Mortgage Corporation in the principal sum of $304,056 which Note was secured by a Deed of Trust on real estate located in Iredell County, ...

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