Friedman v. Bank of Am., N.A. ( 2014 )


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  • An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
    NO. COA13-483
    NORTH CAROLINA COURT OF APPEALS
    Filed:   18 March 2014
    MELISSA JOY FRIEDMAN,
    Plaintiff
    Iredell County
    v.
    No. 12 CVS 1812
    BANK OF AMERICA, N.A. AS SUCCESSOR BY MERGER
    TO BAC HOME LOANS SERVICING, LP f/k/a
    COUNTRYWIDE HOME LOANS SERVICING, INC.; LISA
    S. CAMPBELL, SUBSTITUTE TRUSTEE,
    Defendants
    Appeal by plaintiff from order entered 8 October 2012 by
    Judge Mark E. Klass in Iredell County Superior Court.                     Heard in
    the Court of Appeals 10 October 2013.
    Law Office of James W. Surane, PLLC, by James W. Surane,
    for Plaintiff.
    The Law Office of John T. Benjamin, Jr., P.A., by John T.
    Benjamin, Jr., and James R. White, for Defendants.
    ERVIN, Judge.
    Plaintiff      Melissa     Joy    Friedman    appeals     from    an    order
    dismissing various claims that she asserted against Defendants
    Bank of America, N.A., as successor to BAC Home Loans Servicing,
    L/P., f/k/a Countrywide Home Loans Servicing, Inc., and Lisa S.
    Campbell.       On   appeal,    Plaintiff     argues    that    she    had   stated
    viable claims for         intentional or negligent misrepresentation,
    -2-
    intentional       or   negligent       infliction     of    emotional     distress,
    unfair   debt     collection,     unclean      hands,   punitive       damages,   and
    violation of the Real Estate Settlement Procedures Act of 1974
    in her second amended complaint and that the trial court erred
    by dismissing that pleading.                 After careful consideration of
    Plaintiff’s challenges to the trial court’s order in light of
    the record and the applicable law, we conclude that the trial
    court’s order should be affirmed.
    I. Factual Background
    A. Substantive Facts
    In 2001, Plaintiff purchased a tract of property located in
    Mooresville,         having     financed       this     transaction       using    a
    $536,250.00 loan procured from Approved Federal Savings Bank.
    As   part    of   these      credit    arrangements,       Plaintiff    executed   a
    promissory note and deed of trust in favor of Approved Federal,
    with Neil W. Phelan having been designated as trustee under that
    deed of trust.         On 26 December 2001, Approved Federal’s interest
    in the note and deed of trust was assigned to Bank of New York.
    On 13 December 2002, James P. Bonner was substituted for Mr.
    Phelan as the trustee under the deed of trust.                     On 14 January
    2003, Mr. Bonner            filed a petition seeking to foreclose upon
    Plaintiff’s property           and served a notice          of hearing in that
    proceeding upon Plaintiff.              As a result of the fact that Mr.
    Bonner      failed     to     appear    at     the    scheduled    hearing,       the
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    foreclosure        proceeding           was        involuntarily          dismissed         with
    prejudice on 28 April 2003.
    On 31 July 2003, another notice of foreclosure was served
    upon Plaintiff.         On 15 January 2004, the Clerk of Superior Court
    of Iredell County entered an order determining that Bank of New
    York was the holder of the note, that Plaintiff was in default
    under    the    note    and      deed   of     trust,       and    that   Mr.     Bonner,     as
    substitute trustee, was entitled to foreclose upon Plaintiff’s
    property.       Although no explanation for this fact appears in the
    record,    it    is     clear      that      no    foreclosure          sale     relating    to
    Plaintiff’s      property        occurred         following       the    entry    of   the   15
    January 2004 order.
    In September of 2009, BAC, a Bank of America subsidiary
    which    claimed       to   be    the   holder       of     the    note    that     Plaintiff
    executed in favor of Approved Federal, appointed Ms. Campbell as
    substitute trustee under the deed of trust.                             On 6 October 2009,
    Ms.     Campbell       served      a    notice       of      foreclosure         hearing     on
    Plaintiff.       On 15 March 2010, Ms. Campbell sent Plaintiff a
    notice of rights indicating that she, as substitute trustee, had
    been    requested      to   initiate         foreclosure          proceedings      under     the
    deed of trust that Plaintiff had executed in favor of Approved
    Federal and informing Plaintiff of her rights as required by
    statute.        Although         Ms.    Campbell          voluntarily      dismissed       this
    foreclosure      proceeding        on     19      March    2010,    she    served      another
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    notice of hearing on the same date naming BAC as the holder of
    the note      and scheduling the foreclosure hearing            for 17 June
    2010.1     At the foreclosure hearing, an affidavit executed by a
    BAC employee asserted that BAC held the note that Plaintiff had
    executed in favor of Approved Federal.               On 19 August 2010, the
    Clerk    of    Superior     Court   entered   an     order   authorizing      Ms.
    Campbell      to   proceed     with     the   foreclosure      based     on     a
    determination that the “debtors have shown no valid legal reason
    why foreclosure should not commence.”              A notice that Plaintiff’s
    property would be sold as a result of the foreclosure proceeding
    was filed on 15 June 2012.
    B. Procedural History
    On 26 July 2012, Plaintiff filed a complaint against BAC
    and Ms. Campbell in which she sought to recover compensatory and
    punitive damages, to have the order authorizing the sale of her
    property set aside, and to obtain the issuance of temporary,
    preliminary, and permanent injunctive relief precluding the sale
    of her property.      On that same day, the trial court temporarily
    restrained the sale of Plaintiff’s property.             On 20 August 2012,
    Ms. Campbell filed a responsive pleading in which she denied the
    material      allegations    of     Plaintiff’s    complaint   and     asserted
    various affirmative defenses.             On 5     September 2012,     Bank of
    1
    BAC’s   parent   company,   Bank    of   America,   assumed
    responsibility for servicing Plaintiff’s loan on 1 July 2011.
    -5-
    America, acting in its capacity as successor to BAC, filed a
    responsive        pleading         in    which     it    sought   to    have          Plaintiff’s
    complaint dismissed on the grounds that Plaintiff had failed to
    name    Bank     of   America           as   a   party   defendant      or       to    cause    the
    issuance of a summons directed to Bank of America and on the
    grounds that Plaintiff’s complaint failed to state a claim for
    relief,        denied        the        material        allegations         of        Plaintiff’s
    complaint, and asserted various affirmative defenses.
    On or about 6 September 2012, Plaintiff filed an amended
    complaint against BAC and Ms. Campbell in which she sought to
    recover compensatory and punitive damages, to have the order
    authorizing the sale of her property set aside, and to obtain
    the issuance of temporary, preliminary, and permanent injunctive
    relief precluding the sale of her property.                                 On 12 September
    2012, Plaintiff took a voluntary dismissal without prejudice of
    her claim against BAC.
    On   21    September         2012,        Plaintiff    filed     a    second       amended
    complaint        against      Bank       of      America,    in   its   capacity          as    the
    successor        to   BAC,    and        Ms.     Campbell    in   which      she       sought    to
    recover compensatory and punitive damages, to have the order
    authorizing the sale of her property set aside, and to obtain
    the issuance of temporary, preliminary, and permanent injunctive
    relief precluding the sale of her property.                                 On 27 September
    2012,    Defendants          filed       a     responsive    pleading        in       which    they
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    sought to have Plaintiff’s second amended complaint dismissed on
    the grounds that Plaintiff had failed to state a claim for which
    relief    could   be    granted,         denied   the   material    allegations    of
    Plaintiff’s       complaint,         and     asserted      various     affirmative
    defenses.
    After    holding        a    hearing    on   27    September    2012   for   the
    purpose of considering Plaintiff’s request for the issuance of a
    preliminary injunction and Defendants’ request for the dismissal
    of Plaintiff’s second amended complaint, the trial court entered
    orders on 8 October 2012 granting Defendants’ dismissal motion
    and denying Plaintiff’s motion for the issuance of a preliminary
    injunction.       Plaintiff noted an appeal to this Court from the
    trial court’s dismissal order.2
    II. Substantive Legal Analysis
    A. Standard of Review
    “A motion to dismiss under N.C. Gen. Stat. § 1A-1, Rule
    12(b)(6) for failure to state a claim upon which relief may be
    granted     tests      the       legal     sufficiency     of   the    complaint.”
    Signature Dev., LLC v. Sandler Commer. at Union, L.L.C., 
    207 N.C. App. 576
    , 582, 
    701 S.E.2d 300
    , 305 (2010), appeal dismissed
    2
    Consistently with her notice of appeal, Plaintiff has
    refrained from challenging the denial of her request for the
    issuance of a preliminary injunction in the brief that she has
    filed with this Court on appeal.
    -7-
    as moot, 
    365 N.C. 211
    , 
    710 S.E.2d 28
    , disc. review denied, 
    365 N.C. 211
    , 
    710 S.E.2d 333
     (2011).
    In ruling on the motion, “the allegations of
    the complaint must be viewed as admitted,
    and on that basis the court must determine
    as a matter of law whether the allegations
    state a claim for which relief may be
    granted.”   Stanback v. Stanback, 
    297 N.C. 181
    , 185, 
    254 S.E.2d 611
    , 615 (1979).
    Dismissal is proper “(1) when the complaint
    on its face reveals that no law supports
    plaintiff's claim; (2) when the complaint
    reveals on its face that some fact essential
    to plaintiff's claim is missing; and (3)
    when some fact disclosed in the complaint
    defeats the plaintiff’s claim.”      Schloss
    Outdoor Advertising Co. v. Charlotte, 
    50 N.C. App. 150
    , 152, 
    272 S.E.2d 920
    , 922
    (1980).
    
    Id.
           In the course of engaging in the required analysis, the
    plaintiff’s complaint should be liberally construed.        Dixon v.
    Stuart, 
    85 N.C. App. 338
    , 340, 
    354 S.E.2d 757
    , 758 (1987).         A
    trial court’s decision to grant a dismissal motion is subject to
    de novo review by this Court.          Leary v. N.C. Forest Prods.,
    Inc., 
    157 N.C. App. 396
    , 400, 
    580 S.E.2d 1
    , 4, aff’d, 
    357 N.C. 567
    , 
    597 S.E.2d 673
     (2003).      We will now utilize this standard
    of review in considering the validity of Plaintiff’s challenges
    to the trial court’s order.3
    3
    As a general proposition, we note that Plaintiff’s
    complaint consists of little more than a generalized recitation
    of the elements of the claims that she wishes to assert couched
    in the language of the applicable legal principles unaccompanied
    by any significant factual overlay. In view of the fact that a
    proper analysis of the sufficiency of an affirmative pleading
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    B. Analysis of Plaintiff’s Claims
    1. False Representation Claims
    In the course of challenging the trial court’s dismissal
    order,    Plaintiff     contends    that   the    trial    court       erred   by
    dismissing   her      intentional   and    negligent      misrepresentation,
    unfair and deceptive practice,4 and intentional and negligent
    infliction of emotional distress claims set out in her complaint
    on the grounds that        her allegation that       Defendants had made
    certain   material     misrepresentations    to   the     Clerk   of    Superior
    Court in the course of the foreclosure proceeding sufficed to
    preclude the entry of an order dismissing those claims.                        In
    necessarily focuses on whether the pleading “gives sufficient
    notice of the events or transactions which produced the claim to
    enable the adverse party to understand the nature of it and the
    basis for it, to file a responsive pleading, and—by using the
    rules provided for obtaining pretrial discovery—to get any
    additional information that he may need to prepare for trial,”
    Sutton v. Duke, 
    277 N.C. 94
    , 104, 
    176 S.E.2d 161
    , 167 (1970),
    and the fact that a defendant cannot understand the basis for
    the plaintiff’s claim based solely upon a mere generalized
    recitation   of   the   elements   of  the   plaintiff’s   claim
    unaccompanied by any description of the facts upon which that
    claim rests, litigants should avoid filing complaints or other
    pleadings seeking affirmative relief that consist of little more
    than a list of the elements of the claim that the litigant
    wishes to assert.
    4
    Plaintiff’s unfair and deceptive practice claim hinges on
    the assertion that Defendants violated 
    N.C. Gen. Stat. § 75-54
    ,
    which prohibits any effort to collect a debt through the use of
    “any fraudulent, deceptive or misleading representation,” by
    falsely representing in the foreclosure proceeding that BAC was
    the current note holder, a fact which, according to Plaintiff,
    entitled her to the relief authorized by 
    N.C. Gen. Stat. § 75
    -
    16.
    -9-
    support of this contention, Plaintiff claims that, even though
    BAC represented that it was the holder of Plaintiff’s note in
    the   foreclosure   proceeding,    she   had   demonstrated   in     her
    complaint, including the attached documents, that Bank of New
    York had been the holder of Plaintiff’s note and that BAC had
    failed to provide any documentary support for its claim to have
    subsequently become the holder of the note in question.            We do
    not find Plaintiff’s argument persuasive.5
    As we have previously stated:
    Under the doctrine of collateral estoppel,
    or issue preclusion, a final judgment on the
    merits   prevents  relitigation   of   issues
    actually litigated and necessary to the
    outcome of the prior action in a later suit
    involving   a  different  cause   of   action
    between the parties or their privies.       A
    party   asserting  collateral   estoppel   is
    required to show that the earlier suit
    resulted in a final judgment on the merits,
    that the issue in question was identical to
    an issue actually litigated and necessary to
    the judgment, and that both the party
    asserting collateral estoppel and the party
    against whom collateral estoppel is asserted
    5
    After the record on appeal was filed with this Court,
    Defendants filed a motion seeking to have this case dismissed on
    the grounds that, to the extent that Plaintiff’s claims rested
    on actions that occurred during the litigation of the underlying
    foreclosure proceeding, those claims had been rendered moot by
    the fact that the foreclosure proceeding had been completed.
    Although we might agree with Defendants’ contention in the event
    that Plaintiff was attempting to recover the property that she
    lost through the foreclosure process, Plaintiff is now seeking
    to recover damages rather than to regain possession of her
    property. As a result, Defendants’ motion to dismiss this case
    on mootness grounds should be, and hereby is, denied.
    -10-
    were either parties to the earlier suit or
    were in privity with the parties.
    Williams v. Peabody, __ N.C. App. __, __, 
    719 S.E.2d 88
    , 93
    (2011) (citations and quotation marks omitted) (quoting State ex
    rel. Tucker v. Frinzi, 
    344 N.C. 411
    , 414, 
    474 S.E.2d 127
    , 128
    (1996)).   According to 
    N.C. Gen. Stat. § 45-21.16
    (d), the Clerk
    of Superior Court must determine, in the course of addressing a
    foreclosure    proceeding,   that    the    person     or    entity    on   whose
    behalf the foreclosure proceeding has been brought is the holder
    of the note.     Moreover, the documents attached to Plaintiff’s
    complaint indicate     that the Clerk of Superior Court did,                   in
    fact, determine that BAC held Plaintiff’s note.                 As a result,
    the issue of whether BAC was the holder of Plaintiff’s note was
    “actually litigated and necessary to the outcome of the prior
    action,” Williams, __ N.C. App. at __, 719 S.E.2d at 93, and
    cannot be relitigated in this civil action.                  Thus, since the
    complaint alleges facts that preclude Plaintiff from asserting
    that BAC had falsely represented itself to be the note holder,
    the   claims   that   Plaintiff     has    attempted    to    assert    against
    Defendants based upon that contention are barred by the doctrine
    of collateral estoppel.
    In addition,    a number of the claims            that Plaintiff has
    asserted in reliance upon the contention that Defendants falsely
    represented that BAC held the note that Plaintiff had executed
    -11-
    in favor of Approved Federal were subject to dismissal for other
    reasons as well.                 For example, Plaintiff failed to allege any
    facts describing the allegedly false representation upon which
    she   predicates           her    claim     that    Defendants        violated     
    N.C. Gen. Stat. § 75-54
    ,       a     deficiency       that      provides     an     independent
    justification          for       the      dismissal      of    Plaintiff’s       unfair    and
    deceptive practices claim.                   In addition, Plaintiff’s intentional
    and   negligent        infliction           of    emotional         distress     claims   were
    properly       dismissed          given    Plaintiff’s        failure    to     allege    facts
    tending        to    show        that     she    had     sustained      severe     emotional
    distress.           E.g., Holloway v. Wachovia Bank & Trust Co., N.A.,
    
    339 N.C. 338
    ,    351,       
    452 S.E.2d 233
    ,      240    (1994)     (noting   that
    severe emotional distress is an essential element of a claim for
    intentional infliction of emotional distress); Williams v. HomEq
    Servicing Corp., 
    184 N.C. App. 413
    , 419, 
    646 S.E.2d 381
    , 385
    (2007) (quoting Johnson v. Ruark Obstetrics, 
    327 N.C. 283
    , 304,
    
    395 S.E.2d 85
    ,     97     (1990))       (stating      that     severe    emotional
    distress is an element of a negligent infliction of emotional
    distress        claim,       with        examples       of    such    distress      including
    “‘neurosis, psychosis, chronic depression, phobia, or any other
    type of severe and disabling emotional or mental condition which
    may   be       generally         recognized       and    diagnosed       by     professionals
    trained to do so’”).                As a result, the trial court did not err
    by      dismissing               Plaintiff’s           intentional        and       negligent
    -12-
    misrepresentation,          unfair      and     deceptive       practices,      and
    intentional    and     negligent        infliction     of     emotional   distress
    claims for failure to state a claim upon which relief can be
    granted.
    2. Unclean Hands
    Secondly, Plaintiff asserts that the trial court erred by
    dismissing her “unclean hands” claim.                      In essence, Plaintiff
    contends that she adequately alleged an “unclean hands” claim
    based on the assertion that Defendants’ conduct violated the
    provisions of a consent judgment to which Bank of America was
    subject.      Once    again,     we    conclude     that    Plaintiff’s   argument
    lacks merit.
    Although Plaintiff treats Defendants’                    “unclean hands” as
    sufficient    to     support    an    affirmative     claim    for   relief,    this
    assumption    rests     upon    a     fundamental    misunderstanding      of   the
    relevant legal doctrine.              According to well-established North
    Carolina     law,     the      “unclean    hands”      doctrine,      instead     of
    supporting the assertion of “an equitable claim,” provides an
    equitable defense to an affirmative claim asserted by a person
    who or an entity which has allegedly acted in an “unclean” or
    inequitable manner.            E.g., Roberts v. Madison Cnty. Realtors
    Ass'n, 
    344 N.C. 394
    , 399, 
    474 S.E.2d 783
    , 787 (1996) (holding
    that, “[w]hen equitable relief is sought, courts claim the power
    to grant, deny, limit, or shape that relief as a matter of
    -13-
    discretion . . . normally invoked by considering an equitable
    defense, such as unclean hands”); Elliott v. Enka-Candler Fire &
    Rescue Dep’t, Inc., 
    213 N.C. App. 160
    , 162, 
    713 S.E.2d 132
    , 134
    (2011) (noting that the “defendant filed an answer and asserted
    several affirmative defenses, including unclean hands”).                  As a
    result, given that the “unclean hands” doctrine provides the
    basis for the assertion of an equitable defense rather than an
    equitable claim, the trial court properly dismissed Plaintiff’s
    “unclean hands” claim.
    3. RESPA
    Thirdly, Plaintiff contends that the trial court erred by
    dismissing the claim that she asserted pursuant to RESPA, which
    has been codified at 
    12 U.S.C. § 2601
    , et. seq.                  According to
    Plaintiff’s complaint, BAC violated RESPA by failing to respond
    to certain written requests for information and by failing to
    notify Plaintiff in a timely manner that Plaintiff’s loan had
    been    transferred.      We   do     not       find   Plaintiff’s   argument
    persuasive.
    a. Failure to Respond to Qualifying Written Request
    According to 
    12 U.S.C. § 2605
    (e)(2)(C), a loan servicer
    that    receives   a   qualified    written       request   is   required   to
    “provide    the    borrower    with         a    written    explanation     or
    clarification” within thirty days of the date of receipt “after
    conducting an investigation.”         Although a plaintiff who is able
    -14-
    to show that a violation of 
    12 U.S.C. § 2605
    (e)(2)(C) occurred
    is    entitled        to    assert     a   claim    against      the    offending   loan
    servicer, we do not believe that Plaintiff has pled sufficient
    facts to establish that a violation of the relevant statutory
    provision       actually       occurred.         Simply   put,     although   Plaintiff
    alleged that “BAC/BOA failed to respond in a proper and timely
    way”       to   her        written    requests      pursuant       to    
    12 U.S.C. § 2605
    (e)(2)(C)(i), she failed to make any allegations concerning
    the    dates    upon       which     the   requests    were   made,     the   nature   of
    Plaintiff’s requests, or the dates upon which BAC responded to
    Plaintiff’s       requests.           In   the     absence    of   such    allegations,
    Defendants have no ability to identify the facts that form the
    basis for Plaintiff’s contention that an alleged violation of 
    12 U.S.C. § 2605
    (e)(2)(C) occurred.6                     Davis v. Bowens, 
    2012 U.S. Dist. LEXIS 101402
     at *20, 
    2012 WL 2999766
     at *6 (M.D.N.C. July
    6
    The complete absence of any factual allegations concerning
    the dates upon which Plaintiff’s requests were made and upon
    which    Defendant  responded   to   Plaintiff’s   requests   is
    particularly significant given that, until July, 2010, a loan
    servicer had 60 days within which to respond to a qualifying
    request, Pub. L. No. 101-625, § 941(e)(2)(C)(1), 
    104 Stat. 4079
    ,
    4409, and that, after July 2010, the statutorily required
    response time was reduced to 30 days. Pub. L. No. 111-203, §§ 4
    & 1463(c)(2), 
    124 Stat. 1376
    , 1390, 2184.    As a result of the
    fact that Plaintiff’s complaint makes many references to actions
    that occurred in 2010 and the fact that Plaintiff has provided
    no factual allegations concerning the date upon which the
    alleged violation of 
    12 U.S.C. § 2605
    (e)(2)(c) occurred, we are
    simply unable to determine whether Plaintiff has actually
    alleged that Defendants failed to respond to any qualifying
    written requests that she may have submitted to them in a timely
    manner.
    -15-
    23, 2012) (memorandum opinion and recommendation), adopted, 
    2012 U.S. Dist. LEXIS 136677
    , 
    2012 WL 4462184
     (M.D.N.C. Sept. 25,
    2012)   (holding     that,     since    the       “[p]laintiff     has     included       no
    factual     matter      showing     that        his   alleged     written        demands”
    constituted      qualified        written         requests,     those      claims      were
    subject to dismissal).          As a result, Plaintiff’s complaint fails
    to state a claim for relief predicated upon an alleged violation
    of 
    N.C. Gen. Stat. § 12
     U.S.C. 2605(e)(2)(C).
    b. Failure to Provide Notice of Transfer
    According        to   
    12 U.S.C. §§ 2605
    (c)(1)    and     2605(c)(2)(A),
    “[e]ach     transferee     servicer          to    whom   the    servicing        of     any
    federally    related      mortgage      is    assigned,       sold,   or    transferred
    shall   notify    the     borrower     of       any   such    assignment,        sale,    or
    transfer” within fifteen days “after the effective date of the
    transfer of the servicing of the mortgage loan (with respect to
    which such notice is made),” subject to certain exceptions set
    out in 
    12 U.S.C. §§ 2605
    (c)(2)(B) and 2605(c)(2)(C).                               In her
    complaint, Plaintiff alleged that BAC “failed to send notice of
    transfer of loan servicing to the Plaintiff within 15 days after
    the effective date of transfer of the servicing of the mortgage
    loan, in violation of 
    12 U.S.C. § 2605
    (c).”                             In her brief,
    however,    Plaintiff      argues      that       Defendants     “did      not    provide
    Plaintiff or the trial court with a notice of transfer of loan”
    in a timely manner.            A cursory reading of 
    12 U.S.C. § 2605
    (c)
    -16-
    establishes       that     any    claim    for     relief     under    that      statutory
    subsection must relate to the transfer of responsibility for
    servicing a loan rather than a transfer of the loan itself.                             For
    that reason, the argument advanced in Plaintiff’s brief does not
    provide any basis for overturning the decision that the trial
    court actually made.              Viar v. N.C. Dept. of Transp., 
    359 N.C. 400
    , 402, 
    610 S.E.2d 360
    , 361 (2005)) (stating that “[i]t is not
    the role of the appellate courts . . . to create an appeal for
    an appellant”).          In addition, Plaintiff has completely failed to
    allege any facts in support of her contention that Defendants
    violated 
    12 U.S.C. § 2605
    (c), including the approximate date
    upon which the alleged transfer of responsibility for servicing
    Plaintiff’s       loan     occurred       and    the    identity      of   the   entities
    involved     in   the      alleged    transfer.          In    the    absence     of   such
    allegations, Defendants have been provided no meaningful notice
    of    the   nature    of    the   claim     that       Plaintiff     has    attempted    to
    assert      against     them     in   reliance      upon      
    12 U.S.C. § 2605
    (c).
    Davis, 
    2012 U.S. Dist. LEXIS 101402
     at *16, 
    2012 WL 2999766
     at
    *5.    As a result, the trial court did not err by dismissing this
    aspect of Plaintiff’s RESPA claim either.7
    7
    Although Plaintiff has also challenged the dismissal of her
    punitive damages claim, any award of punitive damages is “only
    [appropriate] if the claimant proves that the defendant is
    liable for compensatory damages.”    N.C. Gen. Stat. § 1D-15(a).
    In light of our decision to uphold the dismissal of the
    substantive claims asserted in Plaintiff’s complaint, we need
    -17-
    C. Other Issues
    Finally, Plaintiff contends that the trial court erred by
    failing to determine that the institution and maintenance of the
    foreclosure proceeding that led to the loss of her property was
    precluded by the doctrine of res judicata in light of the fact
    that   a   prior   foreclosure     proceeding         had   been   dismissed       with
    prejudice based upon the trustee’s failure                     to appear at the
    foreclosure       hearing   and    by     allowing      the    same     counsel      to
    represent both Ms. Campbell, in her capacity as trustee, and
    Bank of America, in its capacity as lender and servicer, in the
    present proceeding.         We do not believe that either of these
    arguments provides any basis for overturning the trial court’s
    dismissal order.
    Although    the   exact    nature       of    Plaintiff’s      res    judicata
    argument is somewhat unclear, we understand her to be contending
    that the trial court should have determined that the foreclosure
    proceeding    in    which   she    lost   her       property   should       have   been
    decided in her favor on res judicata grounds.                      Aside from the
    fact that this claim was not asserted in Plaintiff’s complaint,
    Plaintiff’s argument totally overlooks the fact that Plaintiff,
    having failed to challenge the foreclosure order on the basis of
    the res judicata argument upon which she now seeks to rely in
    not address the dismissal of her punitive damages claim in any
    detail in this opinion.
    -18-
    the   manner   required      by     the    applicable       law,    is    bound       by    the
    outcome in the underlying foreclosure proceeding.                             According to
    well-established North Carolina law, the very doctrine of res
    judicata    upon     which    Plaintiff       relies    “bars       every       ground      of
    recovery or defense which was actually presented or which could
    have been presented in the previous action.”                             Goins v. Cone
    Mills Corp., 
    90 N.C. App. 90
    , 93, 
    367 S.E.2d 335
    , 336-37, disc.
    rev. denied, 
    323 N.C. 173
    , 
    373 S.E.2d 108
     (1988).                                 Although
    Plaintiff could have raised the res judicata argument upon which
    she now relies in the foreclosure proceeding, she refrained from
    acting in that manner and has, instead, sought to raise that
    claim in this civil action.               As a result, we have no hesitation
    in concluding that Plaintiff’s res judicata claim is barred by
    the very doctrine upon which Plaintiff now seeks to rely.
    In   addition,    although          Plaintiff    is    certainly         correct       in
    pointing    out      that,    according        to     
    N.C. Gen. Stat. § 45
    -
    21.16(c)(7)(b), “the trustee [under a deed of trust] . . . is a
    neutral    party      and,    while        holding     that        position       in        the
    foreclosure proceeding may not advocate for the secured creditor
    or for the debtor in the foreclosure proceeding,” we are unable
    to    understand     why     this     principle       provides       any       basis        for
    overturning    the    trial       court’s    dismissal       order       in    this       case.
    Aside   from   the    fact    that    Plaintiff       does    not    appear       to       have
    raised this issue in the trial court, Westminster Homes, Inc. v.
    -19-
    Town of Cary Zoning Bd. of Adjustment, 
    354 N.C. 298
    , 309, 
    554 S.E.2d 634
    , 641 (2001) (holding that “issues and theories of a
    case not raised below will not be considered on appeal”), or to
    have alleged any claim on the basis of this alleged conflict of
    interest     in    her    complaint,    we    see   no       indication   that    the
    conflict of interest upon which Plaintiff relies occurred “[i]n
    the instant case.”           Instead, having been named as parties in
    Plaintiff’s complaint, Ms. Campbell and Bank of America retained
    the same counsel to represent them in this subsequent civil
    action.     Plaintiff has not pointed us to any authority tending
    to   show   that    the   maintenance    of    such      a   joint   defense     in   a
    subsequent civil action in any way violates 
    N.C. Gen. Stat. § 45-21.16
    (c)(7)b, and we know of none.                 As a result, the final
    arguments advanced in Plaintiff’s brief provide no basis for
    overturning the trial court’s dismissal order.
    III. Conclusion
    Thus, for the reasons set forth above, we conclude that
    none of Plaintiff’s challenges to the trial court’s dismissal
    order have merit.          As a result, the trial court’s order should
    be, and     hereby is, affirmed.8
    8
    On 19 June 2013, Defendants filed a motion seeking the
    imposition of sanctions against Plaintiff on the grounds that
    Plaintiff had failed to comply with the 24 May 2013 order of the
    Court striking certain portions of the record on appeal as filed
    and requiring Plaintiff to file an addendum to the     record on
    appeal that contained several items that the parties had
    -20-
    AFFIRMED.
    Judges ROBERT N. HUNTER, JR., and DAVIS concur.
    Report per Rule 30(e).
    previously agreed should be included in that document on or
    before 14 June 2013.   In response, Plaintiff asserted that she
    had not received the order that she was alleged to have
    violated, that she had only learned about it when she received
    Defendants’ 19 June 2013 sanctions motion, and that she would
    comply with the order in question immediately.     In light of
    these filings, the Court entered an order on 5 July 2013
    requiring Plaintiff to file the addendum on or before 15 July
    2013, providing that Plaintiff’s appeal would be dismissed if
    she failed to make the required filing, and referring the issue
    of whether additional sanctions should be imposed to the panel
    to which this case would be assigned for further consideration.
    The addendum to the record referenced in the 24 May 2013 and 5
    July 2013 orders was filed on 10 July 2013.    Although we find
    Plaintiff’s failure to comply with the Court’s prior order
    troubling, we conclude, in the exercise of our discretion, that
    no additional sanctions should be imposed in this instance.
    However, we admonish Plaintiff to remain informed about and to
    scrupulously comply with her obligations in connection with the
    course of the record settlement process in the future.     As a
    result, Defendants’ sanctions motion should be, and hereby is,
    denied.