208 N.C. App. 259
N.C. Ct. App.2010Background
- Goad executed a deed of trust in 2005 securing property at 1214 Canal Drive, Sunset Beach, with JP Morgan Chase Bank as beneficiary and Stienstra as original trustee; Brock & Scott/Joy Walmer became substitute trustees in 2008.
- Foreclosure proceedings were initiated November 5, 2008; amended notice filed July 28, 2009; foreclosure sale scheduled for August 27, 2009.
- Goad received a $450,000 purchase offer and informed defendants; sale was postponed to September 8, 2009.
- A notice of postponement was mailed September 3, 2009; Goad received it September 5, 2009; foreclosure sale occurred on September 8, 2009 with Chase bidding $423,932.55.
- Goad filed an application to enjoin the sale under NC Gen Stat § 45-21.34 on September 18, 2009; hearing held September 28, 2009; trial court denied relief as untimely and based on allegedly inadequate bid.
- Goad appealed; the Court of Appeals affirmed, holding that the filing must be made, heard, and decided before the rights of the parties to the sale become fixed, and that in this case the rights were fixed by the upset-bid deadline without timely injunctive relief, rendering the action moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Do § 45-21.34's timing require filing, hearing, and decision before rights are fixed? | Goad argues filing alone suffices under § 45-21.34. | Chase argues injunction must be filed, heard, and decided before rights fix. | Injunction must be filed, heard, and decided before rights become fixed. |
| When do the rights of the parties to a foreclosure sale become fixed for purposes of § 45-21.34? | Rights may not have fixed due to absence of upset bid or timely injunction. | Rights fixed ten days after report of sale if no proper upset bid; injunction after that is moot. | Rights become fixed ten days after the sale report unless TRO/PI precludes finalization; here they fixed before timely injunction. |
Key Cases Cited
- Swindell v. Overton, 310 N.C. 707 (1984) (limits injunctive relief in foreclosure to before sale confirmation)
- Re Watts, 38 N.C. App. 90 (1978) (injunctive relief available prior to foreclosure sale confirmation)
- Bechtel v. Central Bank and Trust Co., 202 N.C. 855 (1932) (once sale is consummated, courts cannot restrain)
- Fulton v. Morganton, 260 N.C. 345 (1963) (mootness when relief no longer possible)
- Roberts v. Madison County Realtors Ass'n, 344 N.C. 394 (1996) (principles on mootness and absence of ongoing controversy)
- In re Peoples, 296 N.C. 109 (1978) (avoidance of mootness when relief no longer available)
- DuBose v. Gastonia Mutual Savings and Loan, 55 N.C. App. 574 (1982) (illustrates mootness when sale has occurred)