IN THE MATTER OF THE FORECLOSURE OF A DEED OF TRUST EXECUTED BY REBECCA WORSHAM AND GREG B. WORSHAM DATED JANUARY 8, 2007 AND RECORDED IN BOOK 21638 AT PAGE 600 IN THE MECKLENBURG COUNTY PUBLIC REGISTRY, NORTH CAROLINA.
in the Court of Appeals 7 August 2019.
by Respondents from order entered 13 August 2018 by Judge
Hugh B. Lewis in Mecklenburg County, No. 16-SP-2777 Superior
Bradley Arant Boult Cummings LLP, by Brian M. Rowlson, for
Scarbrough & Scarbrough, PLLC, by Madeline J. Trilling,
and Greg Worsham ("Respondents") appeal the trial
court's order allowing foreclosure of their home to
proceed. In a prior appeal, we reversed the order of the
trial court allowing foreclosure of Respondents' home to
proceed, remanding the matter for further proceedings.
See In re Worsham, __ N.C.App. __, 815 S.E.2d 746,
2018 WL 3233086 (2018) (unpublished) ("Worsham
I"). The present appeal originates from those
proceedings. For the reasons that follow, we affirm the order
of the trial court.
facts of this dispute are set out more fully in our opinion
in Worsham I and we recount only those necessary to
resolve the instant appeal. On 12 April 2005 Respondents
purchased a home located at 3501 Providence Road, in
Charlotte, North Carolina, financing the purchase with a loan
secured by a deed of trust. On 8 January 2007, Respondents
refinanced the home, securing the refinancing with a deed of
trust. The deed of trust from the 2007 refinancing was
recorded with the Mecklenburg County Register of Deeds.
Respondents have not made any payments on the note from the
2007 refinancing since 2012.
note provides in relevant part that if the borrower is
"in default, the Note Holder may send  a written
notice telling [the borrower] that if [the borrower] do[es]
not pay the overdue amount by a certain date, the Note Holder
may require [the borrower] to pay immediately the full of
amount of Principal which has not been paid and all the
interest that [the borrower] owe[s] on that amount." On
21 March 2016 Respondents were notified that they were in
default and that foreclosure proceedings would be initiated
if the default was not cured.
July 2016 the substitute trustee initiated foreclosure
proceedings with the clerk of Mecklenburg County Superior
Court. The matter was dismissed by the clerk on 6 December
2016 because the clerk did not believe there was sufficient
evidence of the substitute trustee's authority to
foreclose under the deed of trust. On 8 December 2016, HSBC
Bank USA, N.A. ("Petitioner") appealed the
clerk's order for a de novo hearing in superior
Hugh B. Lewis presided over a hearing on 13 March 2017,
during which the original note, a certified copy of the deed
of trust, and a certified copy of the assignment of the deed
of trust were submitted to the court. On 12 April 2017, the
court entered an order allowing foreclosure to proceed.
Respondents timely appealed.
unpublished opinion, this Court on 3 July 2018 reversed the
trial court's order and remanded the matter for further
proceedings. See Worsham I, at *1. In our opinion we
explained that reversal was required because the trial court
had not found in the 12 April 2017 order that Petitioner was
the holder of the debt evidenced by the note, as N.C. Gen.
Stat. § 45-21.16(d) requires. Id. at *3. We
therefore remanded the matter for further proceedings because
the trial court had "summarily concluded that
Petitioner had the right to foreclose on the property without
first having made a finding whether Petitioner was the holder
of the debt at issue." Id. (emphasis added). We
noted in conclusion that "[o]n remand, the trial court
may . . . make additional findings based on the
existing record." Id. at *4 (emphasis added).
the mandate of our 3 July 2018 opinion had issued, on 13
August 2018, without further hearing on remand, the trial
court entered an order allowing the foreclosure to proceed,
finding as follows:
1. That Respondent Rebecca Worsham originally executed a
promissory note in the amount of $249, 000 in favor of lender
Delta Funding Corporation.
2. That the promissory note was secured by a Deed of Trust
executed by both Respondents, with such Deed of Trust being
an encumbrance on the real property located at 3501
Providence Road, Charlotte, North Carolina 28211
("Property"). The Deed of Trust contains a valid
and enforceable power of sale provision.
3. That Petitioner is currently in possession of the original
promissory note and presented the original promissory note to
the court at the hearing without objection by the
4. That the original promissory note provided by Petitioner
contains a chain of valid and complete indorsements from
Delta Funding Corporation to Petitioner HSBC Bank USA, N.A.,
as Indenture Trustee for the Registered Noteholders of
Renaissance Home Equity Loan Trust 2007-1.
5. That Petitioner produced certified copies of the recorded
1) Deed of Trust securing the Property, 2) the assignment of
the deed of trust to Petitioner, and 3) appointment of
6. That the evidence provided by Petitioner, including the
affidavit, loan payment history and correspondence, and by
Respondents' own admission at the hearing, show that the
Respondents have repeatedly failed to make each of the
monthly payments as required by the promissory note for
several years. Respondents did not provide evidence at the
hearing refuting this evidence of this continuing and ongoing
7. That Petitioner sent Respondent Rebecca Worsham a
pre-foreclosure notice dated March 21, 2016, advising of
Petitioner's intent to foreclose if the ongoing and
continuing default was not corrected within 45 days.
Respondent failed to correct the default.
8. That the Respondents are not in the military and received
the required notice of hearing.
trial court therefore made the following conclusions of law:
1. Service. Each person/entity entitled to notice
was duly served with proper notice as provided by law.
2. Holdership of Note and Validity of Debt: That
Petitioner HSBC Bank USA, N.A., as Indenture Trustee for the
Registered Noteholders of Renaissance Home Equity Loan Trust
2007-1 is the holder of said promissory note and Deed of
Trust to be foreclosed, and that the promissory note
evidences a valid debt owed by Respondents.
3. Default: That Respondents are now in default of
the promissory note, and the Deed of Trust gives Petitioner
the right to foreclose under a power of sale and is
enforceable according to its terms.
4. Home Loan Status: That the underlying promissory
note is a home loan as provided by N.C. Gen. Stat. §
45-101(1b), the requisite pre-foreclosure notice was provided
in all material respects, and that all relevant periods of
time have elapsed prior to the filing of a notice of hearing
in this foreclosure proceeding.
5. Military Status: That the foreclosure sale is not
barred by N.C. G.S. § 45-21-12A because the provisions
of N.C. G.S. § 45-21-12A are inapplicable to this
current proceeding and Respondents do not challenge this
6. That no valid defense or evidence was presented to the
Court by the Respondents as to why the foreclosure should not
7. Per the July 3, 2018 decision of the North Carolina Court
of Appeals, this Order is intended to replace and supersede
the Order Authorizing the Foreclosure of the Property Through
the Power of Sale Authorized by the Deed ...