IN THE MATTER OF THE FORECLOSURE OF REAL PROPERTY UNDER A DEED OF TRUST EXECUTED BY ROBERT C. COLLINS AND RHONDA B. COLLINS DATED JUNE 20, 2006 AND RECORDED ON JUNE 23, 2006 IN BOOK K-30 AT PAGE 975 IN THE MACON COUNTY PUBLIC REGISTRY, NORTH CAROLINA.
in the Court of Appeals 29 November 2016
by respondents from order entered 20 January 2016 by Judge
Marvin Pope in Macon County Superior Court No. 13 SP 130.
Munchin Rosenman LLP, by Rebecca K. Lindahl and Daniel S.
Trimmer, for petitioner-appellee.
Key, Melvin & Patton, P.A., by Fred H. Jones, for
appeal from an order authorizing Beneficial Financial I Inc.,
through substitute trustee Trustee Services of Carolina, LLC
(Trustee Services), to proceed with foreclosure in accordance
with the terms of the Deed of Trust secured by real property
located at 212 Cedar Ridge Road, Franklin, North Carolina
(the property). For the reasons that follow, we affirm.
June 2006, Respondents borrowed $102, 726.34 by executing a
loan agreement (the Note) in favor of Beneficial Mortgage
Company of North Carolina (BMCNC). The Note was secured by a
Deed of Trust that encumbered the property. In 2009, BMCNC
merged with Beneficial Mortgage Company of Virginia (BMCV),
which then merged with Beneficial Financial I Inc.
later defaulted under the terms of the Note. As a result,
Beneficial, through Trustee Services, initiated foreclosure
proceedings pursuant to the power-of-sale provision contained
in the Deed of Trust. The Notice of Hearing, dated 10 June
2013, indicated that "the current holder of the
above-described Deed of Trust and the indebtedness secured
thereby is: Beneficial I Inc Successor by Merger to
Beneficial Mortgage Co of North Carolina."
October 2013, the Clerk of Superior Court of Macon County
conducted a hearing on the matter pursuant to N.C. Gen. Stat.
§ 45-21.16 and found, inter alia, that notice
was given to the record owners of the property, that
Beneficial was the holder of the Note, that the Note was in
default, and that Beneficial had the right to foreclose under
the power-of-sale provision in the Deed of Trust. That same
day, the clerk entered an order allowing Trustee Services to
proceed with the foreclosure sale. Respondents appealed the
clerk's order to Macon County Superior Court for de
January 2016, Judge Marvin Pope conducted the de
novo hearing in the power-of-sale foreclosure
proceeding. At the hearing, Beneficial introduced into
evidence an Affidavit of Default that had been executed by
Beneficial's Assistant Secretary of Administrative
Services, Cherron Martin. In Paragraph 3 of the affidavit,
Martin averred that, based on her own personal knowledge of
the business and loan records at issue, "BENEFICIAL is
in possession of the original promissory note and/or loan
agreement ("Note") for this Loan. . . ." A
number of exhibits were attached to Martin's affidavit,
including photocopies of the Note, the Deed of Trust, and
merger documents pertaining to both BMCNC's merger with
BMCV and BMCV's merger with Beneficial.
objected to the admission of Martin's affidavit on three
grounds: (1) the affidavit was signed in July 2013 and there
was no indication as to whether the Note had been negotiated
since then; (2) none of the averments established that Martin
had personal knowledge of Beneficial's possession of the
Note; and (3) the affidavit was not accompanied by the
original Note. After noting that Paragraph 3 of the affidavit
says "Beneficial is in possession of the original
promissory note and/or loan agreement for this loan[, ]"
Judge Pope overruled respondents' objection.
also moved for a directed verdict "on the basis that
[Beneficial] has failed to prove they're the holder of
the note and can't proceed." Judge Pope denied the
motion. As a result, Martin's affidavit was admitted into
evidence, together with the accompanying exhibits.
January 2016, Judge Pope entered an order that authorized
Trustee Services to proceed with the foreclosure on the
property in accordance with the ...