MAGGIE B. MCDONALD, Plaintiff,
THE BANK OF NEW YORK MELLON TRUST COMPANY, NATIONAL ASSOCIATION fka The Bank of New York Mellon Trust Company N.A., as successor to JPMorgan Chase Bank, N.A., as successor in interest to Bank One, National Association, as Trustee for Residential Asset Mortgage Products, Inc., Mortgage Asset-Backed Pass-Through Certificates Series 2001-RS3, SPECIALIZED LOAN SERVICING, LLC, and SUBSTITUTE TRUSTEE SERVICES, INC., in its capacity as Substitute Trustee, Defendants.
in the Court of Appeals 18 April 2018.
by plaintiff from order entered 1 September 2017 by Judge
Claire V. Hill in Cumberland County No. 17 CVS 5769 Superior
Aid of North Carolina, Inc., by Celia Pistolis, for
Mullins Riley & Scarborough, L.L.P., by Donald R. Pocock,
B. McDonald ("Plaintiff") appeals the trial
court's 1 September 2017 order granting The Bank of New
York Mellon Trust Company, National Association's f/k/a
The Bank of New York Mellon Trust Company, N.A. as successor
to JPMorgan Chase Bank, N.A., as successor-in-interest to
Bank One, National Association, as Trustee For Residential
Asset Mortgage Products, Inc., Mortgage Asset-Backed
Pass-Through Certificates Series 2001-RS3 ("Bank of New
York Mellon") and Specialized Loan Servicing, LLC's
("SLS") (collectively, "Defendants")
motion to dismiss. We affirm.
and her husband, Turnal D. McDonald, have lived at the same
house situated in Fayetteville, North Carolina for over
sixteen years. On 12 June 2001, Plaintiff obtained a
fifteen-year mortgage loan from Decision One Mortgage
Company, LLC, which is secured by a deed of trust on her
home. The principal amount of the mortgage was $185, 491.25
and carried a 9.60% annual interest rate, with monthly
payments of $1, 573.27. Plaintiff agreed to pay off the
mortgage loan in full by 18 June 2016. The deed of trust
securing the loan was properly recorded in the Cumberland
County Registry at deed book 5499, page 278.
unspecified time after the mortgage loan was made, Decision
One Mortgage Company, LLC transferred the ownership and
servicing of the loan to GMAC Mortgage, LLC
("GMAC"). Plaintiff made the required monthly loan
payments until January 2010, when she defaulted on those
payments to GMAC. On 1 February 2011, Plaintiff petitioned
for Chapter 13 bankruptcy. Plaintiff's bankruptcy
petition was dismissed without discharge on 2 March 2012.
the bankruptcy dismissal, Plaintiff allegedly submitted a
loan modification application to GMAC. In June 2012, GMAC
approved Plaintiff for a trial loan modification under the
Home Affordable Modification Program. GMAC temporarily
reduced Plaintiff's required monthly payments from $1,
573.27 to $1, 117.82 and required three timely consecutive
payments of that amount.
Plaintiff allegedly made the three monthly payments under the
trial loan modification, GMAC allegedly offered her a
permanent loan modification agreement in September 2012.
Plaintiff agreed to the permanent loan modification agreement
on 26 September 2012. The monthly payments under the
permanent loan modification agreement were to be paid by the
first of each month, with the first payment due on 1 October
unspecified time after Plaintiff had entered the permanent
loan modification agreement, GMAC transferred the ownership
and servicing rights of Plaintiff's mortgage loan to
Defendants, SLS and Bank of New York Mellon. On 15 October
2012, Plaintiff allegedly tendered a $1, 441.92 mortgage
payment to SLS under the permanent loan modification
agreement. Sometime in November 2012, Plaintiff's niece,
Sobriena Medley, telephoned SLS on Plaintiff's behalf to
make a second mortgage payment. SLS allegedly refused to
accept Plaintiff's modified loan payment upon the grounds
that Plaintiff's loan had not been modified.
December 2012, Ms. Medley again allegedly called SLS on
Plaintiff's behalf to make the third mortgage payment
under the permanent loan modification agreement. SLS also
allegedly refused to accept that payment because the loan had
not been modified.
three years later on 6 February 2016, Substitute Trustee
Services, Inc. ("the Substitute Trustee"),
initiated a power of sale foreclosure proceeding with the
Cumberland County Clerk of Superior Court against Plaintiff
on behalf of Bank of New York Mellon. On 23 May 2016, the
clerk of superior court issued an order pursuant to N.C. Gen.
Stat. § 45-21.16(d), which included all of the
statutorily required findings to permit a foreclosure sale.
The clerk's order included, in part, the finding that
"said note is now in default . . . ." The
clerk's order authorized the Substitute Trustee to
proceed with a foreclosure by power of sale on
Plaintiff's home. Plaintiff did not appeal from the
subsequently filed another Chapter 13 bankruptcy to attempt
to stay the foreclosure sale on 10 June 2016. As part of the
bankruptcy proceeding, SLS filed a proof of claim on 30
September 2016, asserting Plaintiff owed approximately $276,
470.58 to Bank of New York Mellon, and that the debt was
secured by the deed of trust on Plaintiff's home. SLS
attached a copy of the permanent loan modification agreement
signed by Plaintiff to its proof of claim. SLS alleged that
Plaintiff was past due on the November 2012 payment required
under the agreement, which Plaintiff alleges her niece
attempted to pay on her behalf.
October 2016, Plaintiff objected to SLS's proof of claim.
Plaintiff later withdrew the objection and the debt
identified in the proof of claim was included in
Plaintiff's bankruptcy plan. On 12 May 2017, the United
States Bankruptcy Court for the Eastern District of North
Carolina dismissed Plaintiff's bankruptcy ...