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Funderburk v. JPMorgan Chase Bank, N.A.

Court of Appeals of North Carolina

June 16, 2015

MARK E. FUNDERBURK and TERI F. FUNDERBURK, Plaintiffs,
v.
JPMORGAN CHASE BANK, N.A., SHAPIRO AND INGLE, LLP, Substitute Trustee, and TRUSTEE SERVICES OF CAROLINA, LLC, Substitute Trustee, Defendants

Heard in the Court of Appeals 8 April 2015.

Guilford County, No. 13 CVS 8990.

Tuggle Duggins, P.A., by Emma C. Merritt, for plaintiff-appellants.

Bell, Davis & Pitt, P.A., by Bradley C. Friesen and Andrew A. Freeman, for defendant-appellee.

McCULLOUGH, Judge. Judges STEELMAN and STEPHENS concur.

OPINION

Page 2

Appeal by plaintiffs from order entered 21 May 2014 by Judge V. Bradford Long in Guilford County Superior Court.

McCULLOUGH, Judge.

Mark E. Funderburk and Teri F. Funderburk (together " plaintiffs" ) appeal the Rule 12(b)(6) dismissal of their case. For the following reasons, we affirm.

I. Background

This appeal concerns the trial court's Rule 12(b)(6) dismissal of a suit initiated 8 October 2013 by plaintiffs against JPMorgan Chase Bank, N.A. (" Chase" ), and substitute trustees Shapiro and Ingle, LLP (" S& I" ), and Trustee Services of Carolina, LLC (" Trustee Services" ). By order entered 10 April 2014 following the filing of plaintiffs' original complaint, answers by the substitute trustees, orders denying plaintiffs' motions for preliminary injunctions, and an answer and motion to dismiss by Chase, the trial court granted a motion by plaintiffs for leave to amend their complaint. Plaintiffs then filed an amended complaint and separate motions for ex parte, temporary and permanent injunctive relief on 10 April 2014.

As set forth in the amended complaint, plaintiffs purchased the following eight rental properties in Greensboro between 2002 and 2003: (1) 406 Andrews Street, (2) 2020 Martin Luther King, Jr. Drive, (3) 2018 Martin Luther King, Jr. Drive, (4) 2313 Phillips Avenue, (5) 603 East Florida Street, (6) 4002 Oak Grove Avenue, (7) 4004 Oak Grove Avenue, and (8) 608 East Lee Street (together the " properties" ). Plaintiffs obtained mortgage loans in order to purchase the properties and, in return for the loans, executed promissory notes and deeds of trust for each property in favor of Washington Mutual Bank, FA, the original lender. Sometime thereafter, Chase acquired Washington Mutual Bank's interests and became the holder of the promissory notes and the beneficiary under the deeds of trust. S& I and Trustee Services were then named substitute trustees for the benefit of Chase.[1]

Sometime prior to July 2011, Chase attempted to foreclose on the 603 East Florida Street property and plaintiffs filed an action against Chase for wrongful foreclosure. That action was settled via an agreement whereby plaintiffs agreed to bring the mortgage current by paying $4,800 to Chase in exchange for Chase's reinstatement of the mortgage. Plaintiffs then made the $4,800 payment in accordance with the agreement

Page 3

and continued to make monthly payments on the eight properties near the end of each month.

Plaintiffs allege in the amended complaint that Chase failed to comply with the terms of the agreement in that Chase refused to accept payments on the eight properties. Specifically, plaintiffs tendered an online payment to Chase for the eight properties on 31 October 2011 and Chase refunded and re-deposited the mortgage payment electronically on 3 November 2011. Plaintiffs then tendered an online payment to Chase for the eight properties on 14 November 2011 and Chase refunded and re-deposited the mortgage payment electronically on 21 November 2011. Plaintiffs then stopped tendering payments in anticipation that the payments would be rejected.

After Chase refunded and re-deposited plaintiffs' mortgage payments on 3 and 21 November 2011, Chase initiated foreclosure proceedings on all eight properties. Between 4 June 2013 and 24 September 2013, foreclosure hearings were held in which the clerk entered orders authorizing foreclosure sales of all eight properties. Plaintiffs appealed the orders authorizing foreclosure sales of six of the properties. The other two properties were sold at foreclosure on 3 and 22 October 2013.

Plaintiffs further alleged in the amended complaint that since initiating the foreclosure proceedings, someone purporting to be an agent of Chase contacted tenants in the eight properties and instructed those tenants that plaintiffs no longer owned the properties and they must vacate the premises. Plaintiffs alleged they lost tenants and rental payments as a result.

Based on these allegations, plaintiffs asserted causes of action for breach of contract, promissory estoppel, negligent misrepresentation, tortious interference with ...


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