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In re Foreclosure of a Deed of Trust Executed by Foster

Court of Appeals of North Carolina

February 17, 2015

IN THE MATTER OF THE FORECLOSURE OF A DEED OF TRUST EXECUTED BY RALPH M. FOSTER AND SHYVONNE L. STEED-FOSTER DATED FEBRUARY 26, 2010 AND RECORDED IN BOOK 6428 AT PAGE 134 IN THE DURHAM COUNTY PUBLIC REGISTRY, NORTH CAROLINA

Heard in the Court of Appeals May 7, 2014.

Editorial Note:

This Decision is not final until expiration of the twenty-one day rehearing period. [North Carolina Rules of Appellate Procedure 32(b)]

Womble, Carlyle, Sandridge & Rice, LLP, by Christopher W. Jones, for petitioner-appellee.

Ralph M. Foster and Shyvonne L. Steed-Foster, Pro se, respondents-appellants.

GEER, Judge. Judges BRYANT and CALABRIA concur.

OPINION

Appeal by respondents from order entered 8 August 2013 by Judge Carl R. Fox in Durham County Superior Court 12 SP 1061.

GEER, Judge.

Wells Fargo Bank, NA initiated foreclosure proceedings against respondents Ralph M. Foster and Shyvonne L. Steed-Foster. The clerk of superior court denied the foreclosure petition, and the superior court dismissed Wells Fargo's appeal of the clerk's order. The court did not, however, rule on respondents' motions for sanctions and permanent injunctive relief for fraud on the court. Respondents appealed the dismissal order to this Court, but they never served a proposed record on appeal. The superior court granted Wells Fargo's motion to dismiss respondents' appeal. Respondents moved for relief under Rule 60 of the Rules of Civil Procedure from the order dismissing their appeal and for reconsideration of their motions for sanctions and permanent injunctive relief. The superior court denied the Rule 60 motion, and we affirm.

Facts

On 26 February 2010, respondents executed a promissory note in the amount of $340,506.00 secured by a deed of trust on their real property. On 31 July 2012, the substitute trustee initiated a foreclosure proceeding at the request of Wells Fargo by filing a " NOTICE OF HEARING ON FORECLOSURE OF DEED OF TRUST." On 2 January 2013, after a hearing, the clerk of superior court entered an order dismissing the petition. Wells Fargo filed written notice of appeal from the clerk's order on 7 January 2013.

On 22 January 2013, respondents filed a motion entitled " MORTGAGORS [sic] MOTION FOR SANCTIONS AND FOR DENIAL OF FORECLOSURE WITH PREJUDICE AND/OR FOR PERMANENT INJUNCTIVE RELIEF FOR FRAUD UPON THE COURT AND MORGAGORS [sic] BY WELLS FARGO BANK, NA." The motion alleged that Wells Fargo had committed fraud upon the court by producing at the 2 January 2013 hearing a copy of the promissory note that had been altered by the addition of Wells Fargo as an endorsee. Attached to respondents' motion were the affidavits of Shyvonne and Ralph Foster, a copy of the promissory note sent to respondents in response to a July 2012 qualified written request, and a copy of the promissory note submitted by Wells Fargo at the 2 January 2013 hearing.

On 28 January 2013, counsel for Wells Fargo was not present when the case was called before Judge George B. Collins, but appeared later that afternoon and moved for a continuance. On 1 February 2013, Judge Collins entered an order denying Wells Fargo's motion for continuance and dismissing Wells Fargo's appeal " without prejudice." Judge Collins did not hear respondents' motion for sanctions or permanent injunction, and the order did not mention those motions. Respondents filed a written notice of appeal to this Court on 11 February 2013 from the 1 February 2013 order.

On 2 April 2013, after the time had expired for service of a proposed record on appeal, respondents filed a motion for extension of their time to serve the ...


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