In the Matter of the Foreclosure of a Deed of Trust executed by Courtney M. Powell aka Courtney Powell (PRESENT RECORD OWNER(s): Courtney M. Powell) in the Original amount of $107,813.00 dated November 12, 2008, recorded in Book 6092, Page 635, Durham County Registry Substitute Trustee Services, Inc., Substitute Trustee
Heard in the Court of Appeals October 7, 2014
The Law Office of Benjamin D. Busch, PLLC, by Benjamin D. Busch, for appellant.
Hutchens Law Firm, by Hilton T. Hutchens, Jr. and Natasha M. Barone, for appellee.
Robert C. HUNTER, Judge. Judge DAVIS concurs. Judge DILLON concurs in result by separate opinion.
Appeal by Courtney M. Powell from order entered 20 November 2013 by Judge Paul C. Ridgeway in Durham County Superior Court, No. 13 SP 577.
HUNTER, Robert C., Judge.
Courtney M. Powell (" appellant" ) appeals from the trial court's order denying her motion
to set aside a foreclosure sale of her residence. Appellant contends that the trial court abused its discretion in denying her motion because Substitute Trustee Services, Inc. (" STS" ) failed to exercise due diligence before attempting to serve appellant by posting notice of the hearing for foreclosure on her door. Therefore, appellant argues that she was never properly served with notice of the hearing for foreclosure, and the order entered in the foreclosure proceeding is void.
After careful review, we affirm the trial court's order.
On 12 November 2008, appellant executed a promissory note (" the Note" ) and deed of trust (" Deed" ) securing the note with Bank of America, N.A. for the purchase of her residence in Durham, North Carolina (" the subject property" ). Bank of
America then assigned all of its interest in the Note and the Deed to Nationstar Mortgage, LLC (" Nationstar" ). Appellant defaulted on the Note on or around 1 September 2012. By letter dated 5 March 2013, Nationstar sent a notice of default to appellant advising her of the amount necessary to be paid within 45 days to cure default. This notice was sent by first class mail to the subject property and was received by appellant. The notice also provided that if appellant failed to cure her default, all amounts due on the Note would be accelerated and foreclosure proceedings would be initiated. Nationstar then sent appellant notice of her right to dispute the debt owed within thirty days pursuant to N.C. Gen. Stat. § 45-21.16(c)(5a) (2013) and informed appellant that Nationstar had begun to proceed with a foreclosure action. Appellant claimed that she " may" have received this notice at the subject property. Appellant failed to cure her default, so Nationstar appointed STS as substitute trustee under the Deed. On 26 April 2013, STS filed a notice of hearing prior to foreclosure in Durham County, and the foreclosure hearing was scheduled for 5 June 2013 at 11:00 a.m.
On 29 April 2014, STS attempted to serve appellant with notice of the foreclosure hearing by sending a copy of the notice to the Durham County Sheriff's office to be served personally on appellant at the subject property. Durham County Sheriff's Deputy Mike Veasey (" Deputy Veasey" ) went to the subject property at 2:50 p.m., but appellant was not home. Deputy Veasey posted notice of the hearing on appellant's door. On 1 May 2013, STS then mailed a copy of the notice via certified mail to appellant at the subject property address. The certified mail was not claimed by appellant and was subsequently returned to counsel for STS on ...