In re: Herring ( 2015 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance with
the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA14-1159
Filed: 1 September 2015
Wake County, No. 11 SP 5867
IN THE MATTER OF THE FORECLOSURE OF A DEED OF TRUST EXECUTED
BY GEDDIE HERRING DATED NOVEMBER 20, 2003 AND RECORDED IN
BOOK 10614 AT PAGE 913 IN THE WAKE COUNTY PUBLIC REGISTRY,
NORTH CAROLINA.
Appeal by respondent from order entered 31 January 2014 by Judge Michael
R. Morgan in Wake County Superior Court. Heard in the Court of Appeals 18
February 2015.
Womble Carlyle Sandridge & Rice, by Amanda G. Ray and Jesse A. Schaefer,
for petitioner-appellee.
Brent Adams & Associates, by Brenton D. Adams, for respondent-appellant.
GEER, Judge.
Respondent Geddie Herring appeals from an order authorizing petitioner
Wells Fargo Bank, N.A. (“Wells Fargo”) to proceed with foreclosure by power of sale.
On appeal, respondent seeks reversal on the grounds that the petition was not
brought in the name of the real party in interest and that the notice of the foreclosure
hearing before the clerk of court was inadequate. Because respondent failed to make
either argument at the trial level, he waived any objection, and we affirm.
Facts
IN RE: HERRING
Opinion of the Court
The record on appeal reveals the following facts. On 20 November 2003,
respondent executed an agreement for an equity line of credit with World Savings
Bank for $100,000.00. Respondent secured the line of credit by executing a deed of
trust as to certain real property. Gary Bradley was named the trustee. World
Savings Bank filed the deed of trust with the Wake County Register of Deeds on 31
December 2003.
World Savings Bank merged with Wachovia Bank, and on 8 November 2007
World Savings Bank amended its name to become Wachovia Mortgage. On 15 August
2008, respondent defaulted on the deed of trust. On 28 April 2011, Wachovia
Mortgage merged with petitioner. On 12 December 2011, petitioner filed a document
with the Wake County Register of Deeds substituting Mr. Bradley with “Grady I.
Ingle Or Elizabeth B. Ells” as trustees. The following day, an attorney acting on
behalf of either Mr. Ingle or Ms. Ells filed a notice of foreclosure as to the property
securing respondent’s deed of trust in Wake County Superior Court. On 27 February
2013, petitioner filed another document with the Wake County Register of Deeds that
“remove[d] Gary Bradley, as Trustee and . . . remove[d] any Substitute Trustee or
Trustees who may have been previously appointed in place of the original Trustee,
and . . . appoint[ed] and substitute[d] The Ford Firm, PLLC to serve, effective
immediately, as Substitute Trustee . . . .”
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IN RE: HERRING
Opinion of the Court
Following a hearing on 27 February 2013, the clerk of court entered an order
permitting petitioner to proceed with foreclosure by power of sale. Respondent
appealed that order to Wake County Superior Court. At a hearing on 9 January 2014,
respondent objected on the grounds of hearsay as to each exhibit introduced by
petitioner -- the trial court overruled all of petitioner’s objections. On 31 January
2014, the trial court entered an order permitting petitioner to proceed with
foreclosure by power of sale, and respondent timely appealed that order to this Court.
I
We first address petitioner’s motion to dismiss this appeal based on
respondent’s violations of the Rules of Appellate Procedure, including an alleged
failure to timely contract for and have delivered a transcript of the 9 January 2014
proceedings, an alleged failure to timely serve a proposed record on appeal on
petitioner, and an alleged failure to timely file the record on appeal. It is well
established that “[c]ompliance with the [Rules of Appellate Procedure] . . . is
mandatory.” Dogwood Dev. & Mgmt. Co. v. White Oak Transp. Co., 362 N.C. 191,
194, 657 S.E.2d 361, 362 (2008). Nonetheless, it is equally well settled that while “[a]
jurisdictional default . . . precludes the appellate court from acting in any manner
other than to dismiss the appeal[,]” “ ‘it is the task of an appellate court to resolve
appeals on the merits if at all possible’ ” and, therefore, “a party’s failure to comply
with nonjurisdictional rule requirements normally should not lead to dismissal of the
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IN RE: HERRING
Opinion of the Court
appeal.” Id. at 197, 198, 199, 657 S.E.2d at 365, 366 (quoting 5 Am. Jur. 2d. Appellate
Review § 804, at 540 (2007)).
“[O]nly in the most egregious instances of nonjurisdictional default will
dismissal of the appeal be appropriate.” Id. at 200, 657 S.E.2d at 366. Moreover, “the
appellate court may not consider sanctions of any sort when a party’s noncompliance
with nonjurisdictional requirements of the rules does not rise to the level of a
‘substantial failure’ or ‘gross violation.’ ” Id. at 199, 657 S.E.2d at 366 (quoting N.C.R.
App. P. 25, 34). “In determining whether a party’s noncompliance with the appellate
rules rises to the level of a substantial failure or gross violation, the court may
consider, among other factors, whether and to what extent the noncompliance
impairs the court’s task of review and whether and to what extent review on the
merits would frustrate the adversarial process.” Id. at 200, 657 S.E.2d at 366-67.
Even assuming, without deciding, that respondent failed under the Rules of
Appellate Procedure to timely deliver the transcript, to timely serve the proposed
record on appeal, and to timely file the record on appeal, such violations of the Rules
of Appellate Procedure are non jurisdictional. See N.C. State Bar v. Sossomon 197
N.C. App. 261, 270, 676 S.E.2d 910, 917 (2009) (A violation of “Rule 7 [relating to
ordering the transcript] is a nonjurisdictional defect.”); Yorke v. Novant Health, Inc.,
192 N.C. App. 340, 346, 666 S.E.2d 127, 132 (2008) (“Rule 11(c) [regarding service of
a proposed record on appeal] is a nonjurisdictional requirement ‘designed primarily
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IN RE: HERRING
Opinion of the Court
to keep the appellate process flowing in an orderly manner.’ ” (quoting Dogwood, 362
N.C. at 198, 657 S.E.2d at 365)); Copper v. Denlinger, 193 N.C. App. 249, 260, 667
S.E.2d 470, 480 (2008) (“[P]laintiffs’ violation of Rule 12 [regarding timely filing of a
record on appeal] does not result in mandatory dismissal[.]”), rev’d in part on other
grounds, 363 N.C. 784, 688 S.E.2d 426 (2010). Consequently, we deny petitioner’s
motion to dismiss this appeal.
II
Respondent first argues that the trial court violated Rule 17 of the Rules of
Civil Procedure in granting the petition allowing foreclosure by power of sale because
the action was not brought by the actual trustee, who, respondent asserts, was the
only real party in interest. “A foreclosure under power of sale is a type of special
proceeding, to which our Rules of Civil Procedure apply.” Lifestore Bank v. Mingo
Tribal Pres. Trust, ___ N.C. App. ___, ___, 763 S.E.2d 6, 9 (2014), disc. review denied,
___ N.C. ___, 771 S.E.2d 306 (2015). Although Rule 17 requires that an action be
brought by the real party in interest, “the real party in interest provisions of Rule 17
are for the parties’ benefit and may be waived if no objection is raised[.]” J & B Slurry
Seal Co. v. Mid-South Aviation, Inc., 88 N.C. App. 1, 16, 362 S.E.2d 812, 822 (1987).
Here, respondent did not argue to the trial court that Mr. Ingle and Ms. Ells
were not real parties in interest. He, therefore, waived any defect in the trial court’s
judgment based on that argument. Even assuming that respondent preserved the
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IN RE: HERRING
Opinion of the Court
issue below, although respondent contends that the names on the notice of
foreclosure, Mr. Ingle and Ms. Ells, were not the trustees of the deed of trust and,
therefore, could not have brought the action for foreclosure, the record shows that on
12 December 2011, the day before petitioner instituted this foreclosure action,
petitioner substituted Mr. Bradley with Mr. Ingle and Ms. Ells as trustees of the deed
of trust. The record therefore establishes that the proceeding was brought by a real
party in interest.
Respondent nonetheless further contends that he received inadequate notice
of the clerk’s hearing. Respondent failed to raise this issue below as well, and,
therefore, it “will not be considered [for the first time] on appeal[.]” Westminster
Homes, Inc. v. Town of Cary Zoning Bd. of Adjustment, 354 N.C. 298, 309, 554 S.E.2d
634, 641 (2001). Even assuming the issue was raised, “[i]t is well-settled that a party
entitled to notice may waive notice . . . ,” by being “present at the hearing and
participat[ing] in it.” In re Foreclosure of Norton, 41 N.C. App. 529, 531, 255 S.E.2d
287, 289 (1979). Respondent’s full participation in the clerk’s hearing was a waiver
of any defects in the hearing notice.
AFFIRMED.
Judges ELMORE and INMAN concur.
Report per Rule 30(e).
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