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In re Foreclosure of Real Property Under Deed of Trust From Vicque Thompson

Court of Appeals of North Carolina

April 18, 2017

IN RE: FORECLOSURE OF REAL PROPERTY UNDER DEED OF TRUST FROM VICQUE THOMPSON and CHRISTALYN THOMPSON, IN THE ORIGINAL AMOUNT OF $205, 850.00, and DATED SEPTEMBER 26, 2007 and RECORDED ON SEPTEMBER 28, 2007 IN BOOK 2953 AT PAGE 653 AND RERECORDED/MODIFIED/CORRECTED ON FEBRUARY 27, 2015 IN BOOK 4266, PAGE 911, ONSLOW COUNTY REGISTRY[, ] TRUSTEE SERVICES OF CAROLINA, LLC, SUBSTITUTE TRUSTEE

          Heard in the Court of Appeals 7 March 2017.

         Appeal by respondents from order entered 30 March 2016 by Judge D. Jack Hooks in Onslow County, No. 15 SP 756 Superior Court.

          Blanco Tackabery & Matamoros, P.A., by Ashley S. Rusher and M. Rachael Dimont, for petitioner-appellee.

          The Barber Law Firm, PLLC, by Terence O. Barber, for respondent-appellants.

          ZACHARY, Judge.

         Appellants Vicque and Christalyn Thompson ("the Thompsons") appeal from an order of the trial court that allowed the substitute trustee appointed by appellee USAA Federal Savings Bank ("the Bank") to foreclose on a loan secured by property owned by the Thompsons. On appeal, the Thompsons argue that the trial court erred by failing to vacate an earlier order of the Clerk of Superior Court of Onslow County allowing foreclosure and by entering the order permitting the foreclosure sale to proceed. The Thompsons contend that "the trustee did not hold legal title to the property owned by [the Thompsons] by virtue of the faulty description in the deed of trust" and that, as a result, the substitute trustee was "not entitled to foreclose under the instrument." For the reasons discussed below, we conclude that the trial court did not err and that its order should be affirmed.

         I. Background

         The relevant facts of this case are largely undisputed and may be summarized as follows: On 28 September 2007, the Thompsons acquired property located at 303 Old Pine Court, Richlands, North Carolina ("the property"). In order to purchase the property, the Thompsons borrowed $205, 850.00 from the Bank and secured the loan with a Deed of Trust on the property. The Thompsons later defaulted on the loan by failing to make the payment to the Bank that was due on 1 September 2013, or to make any payments thereafter. A letter informing the Thompsons of the default was mailed on 2 February 2014, and a pre-foreclosure notice was mailed to the Thompsons on 2 September 2014. On 23 July 2015, Trustee Services of Carolina, LLC was appointed as substitute trustee for the property. The Bank instructed the substitute trustee to institute foreclosure proceedings.

         On 29 July 2015, the substitute trustee filed a notice of a foreclosure hearing to be conducted on 15 September 2015. The foreclosure hearing was continued until 17 November 2015, at which time the Clerk of Superior Court for Onslow County conducted a hearing and entered an order allowing the foreclosure to proceed. The Thompsons appealed the Clerk's order to the Superior Court of Onslow County for a de novo hearing. The trial court conducted a hearing on 15 February 2016. On 8 April 2016, the court entered an order allowing the foreclosure to proceed. The Thompsons entered timely notice of appeal to this Court from the trial court's order.

         II. Standard of Review

         "The applicable standard of review on appeal where, as here, the trial court sits without a jury, is whether competent evidence exists to support the trial court's findings of fact and whether the conclusions reached were proper in light of the findings." In re Foreclosure of Adams, 204 N.C.App. 318, 320, 693 S.E.2d 705, 708 (2010) (quotations and citations omitted). "Conclusions of law drawn by the trial court from its findings of fact are reviewable de novo on appeal." In re Foreclosure of Bass, 366 N.C. 464, 467, 738 S.E.2d 173, 175 (2013) (citation omitted).

         III. Right to Foreclose: General Principles

         The general principles by which foreclosure must be conducted are well established. "Foreclosure by power-of-sale proceedings conducted pursuant to N.C. Gen. Stat. § 45-21.16 are limited in scope. A power-of-sale provision contained in a deed of trust vests the trustee with the 'power to sell the real property mortgaged without any order of court in the event of a default.' " In re Foreclosure of Collins, __ N.C.App. __, __, __ S.E.2d __, (7 February 2017) (quoting In re Foreclosure of Michael Weinman Associates, 333 N.C. 221, 227, 424 S.E.2d 385, 388 (1993)). N.C. Gen. Stat. § 45-21.16(a) (2015) requires that in order to initiate a foreclosure proceeding, the mortgagee or trustee must file a notice of hearing with the clerk of court and serve notice of the hearing upon the appropriate parties. The Thompsons do not dispute that they were properly served with notice of the hearing. Thereafter, a hearing "shall be held before the clerk of court in the county where the land, or any portion thereof, is situated." N.C. Gen. Stat. § 45-21.16(d) (2015). At the hearing, the lender "bears the burden of proving that there was a valid debt, default, the right to foreclose under power of sale, and notice." In re Foreclosure of Brown, 156 N.C.App. 477, 489, 577 S.E.2d 398, 406 (2003). N.C. Gen. Stat. § 45-21.16(d) provides in relevant part that:

If the clerk finds the existence of (i) valid debt of which the party seeking to foreclose is the holder, (ii) default, (iii) right to foreclose under the instrument, [and] (iv) notice to those entitled to such under subsection (b), . . . then the clerk shall authorize the mortgagee or trustee to proceed under the instrument, and the mortgagee or trustee ...

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