Fleet National Bank v. Raleigh Oaks Joint Venture , 117 N.C. App. 387 ( 1994 )

Judge Thompson

concurring.

I concur in the decision that the superior court’s order should be affirmed. I would, however, base the decision upon the ground that, under the circumstances, the substitute trustee made reasonable and diligent efforts to serve Vogel personally. These efforts included the following:

(1) The trustee mailed notice of the hearing addressed to Vogel personally by certified mail to the address which was stipulated in the deed of trust as the address to which notice of forfeiture should be sent for “Raleigh Oaks Joint Venture, c/o Seymour Vogel.” Under the terms of that instrument “any party may designate a change of address by written notice to the other....” There is no evidence in the record that Vogel ever sent Fleet a notice of change of address.

(2) Although the notice that the trustee sent to Vogel personally was returned unaccepted, an identical notice that the trustee sent by certified mail to “Raleigh Oaks Joint Venture, c/o Seymour Vogel” at the same Raleigh address, “4600 Marriott Drive, Suite 130,” was accepted by a Wm. Loggins, who was present in that office on May 15, 1991. Vogel presented no evidence that the person who accepted service for him at the Raleigh address was not authorized to do so. Moreover, in his answer to the complaint in this action, filed on November 19, 1990, just six months before the trustee instituted the foreclosure proceedings, and a year after he contends he moved to Florida, Vogel admitted that he was then a citizen and resident of North Carolina.

(3) When the notice of hearing addressed to Vogel personally was returned undelivered, the trustee undertook to serve Vogel through the Wake County Sheriffs Department, which returned the service indicating that Mr. Vogel could not be found at that address.

(4) It was then that the trustee posted the notice of hearing on the property to be foreclosed, as described in the court’s opinion. I conclude that, despite the fact that Fleet’s Tennessee attorneys had corresponded with Vogel with regard to a loan on Tennessee property at a time when Vogel was in Florida, the trustee made reasonable and diligent efforts to serve Vogel personally. Compare Federal Land Bank v. Lackey, 94 N.C. App. 553, 380 S.E.2d 538 (1989), aff'd per curiam, 326 N.C. 478, 390 S.E.2d 138 (1990). The fact that Vogel had actual notice of the foreclosure hearing merely establishes the equitable nature of this result and further supports the trial court’s decision.

I conclude that all of the factors present in this case acted in complimentary fashion to validate the service.