PMB, INC. v. Rosenfeld

269 S.E.2d 748 (1980)

PMB, INCORPORATED, a North Carolina Corporation
v.
Michael B. ROSENFELD, J. Nat Hamrick, Trustee, and J. Nat Hamrick, Individually.

No. 8029SC187.

Court of Appeals of North Carolina.

September 16, 1980.

West, Groome & Correll by Ted G. West, Lenoir, for plaintiff-appellee.

Hamrick & Hamrick, by J. Nat Hamrick, Rutherfordton, for defendant-appellant.

HILL, Judge.

The superior court acted correctly in granting partial summary judgment in favor of mortgagor. No proper notice of the 16 August 1978 hearing at which the deed of trust was foreclosed was given to mortgagor. The requirements of G.S. 45-21.16 were not met.

G.S. 45-21.16(a) requires that notice of the hearing "shall be served in any manner provided by the Rules of Civil Procedure for the service of summons, or may be served by actual delivery by registered or certified mail, return receipt requested . . . ." Mortgagee asserts that he sent a letter to mortgagor's attorney giving notice of the hearing and that by other means mortgagor had actual knowledge of the sale, but chose not to appear.

Mortgagor's actual knowledge is irrelevant in this case. G.S. 45-21.16 is clear in its requirement that notice shall be served in such a manner that there will be unbiased and reliable extrinsic evidence of the fact notice was served. Mortgagee's purported letter to and telephone conversation with mortgagor fall short of the statutory requirements. The type of "notice" that mortgagee sought to give mortgagor can only give rise to the type of unprofessional haggling between attorneys exemplified by this case, and must have been an evil the General Assembly meant to eliminate by the passage of G.S. 45-21.16.

Mortgagee also argues that the superior court erred when it made findings of fact. Summary judgment is improper if findings of fact are necessary to resolve an issue as to a material fact. Insurance Agency v. Leasing Corp., 26 N.C.App. 138, 215 S.E.2d 162 (1975). "However, such findings and conclusions do not render a summary judgment void or voidable and may be helpful, if the facts are not at issue and support the judgment." (Citations omitted.) Mosley v. Finance Co., 36 N.C. App. 109, 111, 243 S.E.2d 145, 147, disc. rev. denied 295 N.C. 467 (1978). We find no error in the superior court's summation of the undisputed facts which support its judgment.

For the reasons stated above, the action of the superior court in granting partial summary judgment in favor of mortgagor is

Affirmed.

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