Gore v. Hill , 52 N.C. App. 620 ( 1981 )

279 S.E.2d 102 (1981)

McRoy GORE, Jr.
v.
James E. HILL, Trustee, United Carolina Bank (Waccamaw Bank & Trust Company); Roland Lennon Gore and wife, Gwen Gore, and J. Roland Gore and wife, Velma J. Gore.

No. 8013SC1073.

Court of Appeals of North Carolina.

June 16, 1981.

McLean, Stacy, Henry & McLean by Everett L. Henry, Lumberton, for plaintiff-appellant.

C. Franklin Stanley, Jr., Tabor City, for defendants-appellees.

HEDRICK, Judge.

The sole questions presented by this appeal is whether the trial court improperly denied plaintiff's motion for partial summary judgment and allowed defendants' motion for summary judgment. Plaintiff's only argument is that the facts as to liability were undisputed: the foreclosure sale had been postponed in a manner contrary to the provisions of G.S. § 45-21.21 and that the sale was, therefore, void.

Upon a motion for summary judgment, the duty of the trial court is not to resolve issues of fact but to determine whether there is a genuine issue of material fact which should be tried by the jury. Lambert v. Duke Power Co., 32 N.C.App. 169, 231 S.E.2d 31, disc. review denied, 292 N.C. 265, 233 S.E.2d 392 (1977). The moving party must then make it clear that he is entitled to judgment as a matter of law. Id. The test for summary judgment is, therefore, twofold: Is there a genuine issue of material fact and is the moving party entitled to judgment as a matter of law? See G.S. § 1A-1, Rule 56(c).

The material facts in the case before us are not in dispute. Having determined this, as he did in his order, the trial judge then had to decide which party was entitled to judgment as a matter of law. We hold that he correctly concluded that summary judgment in favor of defendants was proper.

The power of sale by which defendant Hill, as substitute trustee, foreclosed the deed of trust was contained in the deed of trust itself which was executed by the mortgagors, the defendants Gore. The due process rights of the defendants Gore, to the extent that they may not have been afforded in the deed of trust, are set forth in G.S. § 45-21.16 et seq. Realty and Mortgage Co. v. Bank, 34 N.C.App. 481, 238 S.E.2d 622 (1977). The procedural requirements of notice and hearing are designed to assure mortgagors that property which they have used to secure an indebtedness will not be foreclosed without due process of law. One of the procedures which is designed for the protection of the mortgagor is the requirement, contained in G.S. § 45-21.21, that the trustee's postponement of the foreclosure sale not exceed twenty days, exclusive of Sundays, after the original date set for the sale and that notice of the specifics of the postponement be posted. Failure to conform to these requirements renders the foreclosure sale voidable at the option of the mortgagor.

Having concluded that G.S. § 45-21.21 provides procedural protections for a mortgagor, we hold that plaintiff herein, purchaser of the property, was not a party protected by G.S. § 45-21.21 and that he has no basis on which to assert that the sale was invalid because the sale was postponed in a manner not consistent with the statute. As purchaser of the property, plaintiff acted at his own risk and subject to the doctrine of caveat emptor. Buckman v. Bragaw, 192 N.C. 152, 134 S.E. 422 (1926). Defendants, therefore, were entitled to judgment as a matter of law.

Summary judgment for defendants is

Affirmed.

HARRY C. MARTIN and WELLS, JJ., concur.