*1 COURT IN THE SUPREME 222 (2016)] 222 [369 BY OF A DEED OF TRUST IN THE MATTER OF FORECLOSURE EXECUTED Page July 96 F. LUCKS dated 2006 GORDON recorded in Book Registry County Public in the Buncombe No. 162A16 Filed December Trust—foreclosure—substitute Mortgages and Deeds trustee—authority to authorize a creditor to properly trial court refused
The failed to establish the substitute where the creditor with a foreclosure However, the authority the deed of trust. to foreclose under trustee’s prejudice.” refusal a “dismissal with entering erred trial court and did not was not “dismissal” to authorize the creditor estoppel in the traditional sense. implicate judicata or collateral res by refusing a lim- its discretion to admit court did not abuse The trial turn, company, which, in attorney appointing a service power of ited limited appoint trustee. The excluded relied a substitute was internally attorney power was not consistent. concurring in result.
Justice HUDSON opinion. join concurring BEASLEYand ERVIN Justices unpublished deci- Appeal pursuant 7A-30(2) from Appeals,_N.C. App._., panel of the Court of sion of a divided on 30 December (2016), reversing an order entered S.E.2d 185 Court, County. Bradley Superior Buncombe Heard Judge B. Letts Supreme on 10 October 2016. Court petitioner-appellee LLP, Kyle Deak, by D. Troutman Sanders for Company, Trust Trustee. Deutsche Bank National PLLC, DeMay, DeMay, by James R. Ferguson, Hayes, Hawkins & respondent-appellant. NEWBY, Justice. by power under a of sale right of foreclosure
The contractual comprehensive stat- non-judicial proceeding. In the of trust is a deed power of sale utory governing framework Assembly Statutes, General Chapter of our General forth in set IN EE FORECLOSUKEOF LUCKS *2 prescribed has judicial certain procedures, requir- minimal including ing notice and a hearing designed protect the debtor’s interest. The hearing official then proceed authorizes the foreclosure to or refuses to do so. In this informal setting, establish, a creditor must among other things, debt, default, the existence of a foreclose, and its right to and a may evidentiary debtor raise challenges. The Rules of Civil Procedure applicable judicial to formal apply. actions do not The debtor has the option separate judicial enjoin to file a action to the foreclosure.
Here, because the creditor failed to establish the substitute trust- authority ee’s to foreclose trust, under the deed of prop- the trial court erly proceed refused to authorize the creditor to with the foreclosure. Nonetheless, erroneously the trial court preju- entered a “dismissal with proceed dice.” The refusal to authorize the creditor to not a “dismissal”; implicate it judicata does not res estoppel or collateral in the traditional may non-judicial sense. While the creditor with foreclosure default, may proceed on the same it through the same default fore- by judicial closure proceed non-judicially action. The creditor also power under of sale based a different default. Because the Court Appeals by finding erred that the creditor established the successor authority trustee’s trust, under the deed of we reverse the court, decision of that which reversed the trial court’s ruling. July 2006, In (borrower) promissory Gordon F. Lucks executed a IndyMac Bank, note with (the Note) principal F.S.B. in the amount of $225,000 purchase property County. real situated Buncombe The repayable monthly debt is through installments, payment with each month, due on the first of the and matures on 1 August 2036. The Note provisions. includes default and acceleration time, At the same borrower prop- executed a deed of trust on the erty, naming R trustee, Robert Tucker II as which was recorded with County Register provides the Buncombe of Deeds. The deed of trust for non-judicial by power foreclosure of sale. Deutsche Bank National Trust Company (Deutsche currently Bank)1 holds the Note and asserts that paid any owing borrower “has not amount due and under the Note since October 2010.” Company Equity 1. Deutsche Bank National Trust acts as Trustee of the Home Mortgage 2006-D, Equity Mortgage Loan Asset-Backed Trust Series INABS Home Loan Certificates, 2006-D, Pooling Servicing
Asset-Backed Series INABS under the September Agreement purported beneficiary dated under the deed of trust. THE SUPREME COURT IN Firm, acting as substitute trustee September 2013, the Ford In non-judicial foreclosure hearing trust, initiated a under the deed payments. make failure to 45-21.16for borrower’s under N.C.G.S. County Court, “dismissed” the Superior Buncombe Assistant Clerk of appointing the Ford Firm as present documentation case for failure to substitute trustee. trustee, PLLC, Law, acting now as substitute
In June Cornish based on borrower’s hearing for initiated a new proper payments.2 Clerk found documen- to make The Assistant failure time of Ford Firm was the Trustee at the tation established that “The privity Law, PLLC is in [prior] dismissal,” and since “Cornish again “dis- Firm,” *3 “action is barred Res Judicata” The Ford the appealed superior to court. Deutsche Bank the matter missed” the case. 45-21.16(dl) (2015). See N.C.G.S. § a superior court, in Deutsche Bank tendered
At the de novo to right establish the substitute trustee’s series of documents to foreclosure, copies powers of which included various with attorney. document, 4,” “Exhibit is the crucial docu- such marked One appeal, which the trustee lacks at issue in this without substitute ment purported to authority trust. The document is to act under deed of the attorney company to power appointing a service act be a limited appoint the behalf, which, turn, in was relied Bank’s Deutsche substitute trustee.3 was called a witness who testified that she
Deutsche Bank by” company, but Deutsche Bank did not estab- “employed the service position, role, handling Regarding of records. the lish her or duties 4, employee stated that a different firm document marked Exhibit “normally power “prepared power attorney,” we record the that, try it to the state ... attorneys,” and this case we to record “[i]n headquarters be,” which she . . . would be where the would “believe[d] County. City Mecklenburg Charlotte.” The of Charlotte is located proceeding if trustee was under a 2. It is unclear from the record the new substitute default. different Law, PLLC, tendered, alia, appointing as Bank inter an exhibit Cornish 3. Deutsche trustee, by representative company, acting which was executed of the service substitute appoint 45-10(a) (2016) (allowing the noteholder to on the Bank’s behalf. See N.C.G.S. appointment trustee). leading link in the chain successor Because a break one authority deprives under the deed trustee the creditor of the to foreclose of the substitute Allen, analyze trust, alleged 112 N.C. other deficiencies. See Smith v. we need not 14, 18 225-26, 16 932, (citing Wilton, (2 Mur.) (1811)). (1893) S.E. Hill v. Deutsche Bank tendered Exhibit photocopy, which is a fourteen pages in length, signed by a Bank officer on November 2013 and nota- rized. page The last recording stamp revealed a from the Register of in Montgomery County, Deeds not Mecklenburg County, which states years document was in 2010, recorded purported three before the execution, and that the document is pages eleven in length, not four- teen. objected Borrower to the Exhibit’s admission evidence, into not- ing “recording appears precede information signatory date of on that instrument.” Counsel for Deutsche Bank stated that she “believe[d] that was an error in stapling the Nonetheless, exhibit.” no witness testified discrepancy. about the request Deutsche Bank did not the trial court take judicial notice of recorded version of Exhibit 4 or make argu- other ments for the admission of Exhibit 4.
The trial objection court sustained borrower’s to the admission of provide Exhibit 4 for proper “failure to hearsay,” foundation and not- ing internally that “the document is inconsistent” and “has inconsistent dates.” Because Exhibit 4 is essential in establishing the substitute trust- authority ee’s with foreclosure, the trial court “dismissed prejudice” the case for timely insufficient evidence. Deutsche Bank appealed the Appeals. matter to the Court of opinion,
In a Appeals divided the Court of reversed the trial court’s dismissal. In re Lucks, Foreclosure _ N.C. App. _, 2016 WL majority (unpublished). The noted that “the slightly rules are more relaxed in the context of a foreclo *4 sure hearing than in normal litigation,” id., 1321155, 2016 WL *2, at and by concluded that objection the trial court erred sustaining borrower’s ” to Exhibit 4 ‘proper “on the basis of lack of foundation hearsay,’ and opined id. at *3. The dissent relaxation of the rules supported by “is law,” citation (Hunter, J., or case id. at *4 dissent and, ing), noting borrower failed to establish alternative means to admit 4, properly Exhibit concluded Exhibit, excluded the id. at appeals *7..Borrower as a right. matter of
Non-judicial by power foreclosure of sale arises under contract and judicial is not a proceeding. See In re Foreclosure Michael Weinman P’ship, 221, 227, Assocs. Gen. 385, 333 N.C. 424 (1993) (A' S.E.2d 388 power of sale is contractual and allows the mortgaged creditor to sell the property “without order of court in (quot- the event of a default.” ing Webster, A. Jr., James Webster’sReal Estate Law in North Carolina 281, at 331 (Patrick § K-Hetrick & James B. McLaughlin, eds., Jr. 3d ed. THE SUPREME COURT IN
226 1830, views,4 by at least adopted differing have 1988))). Though states deed of power foreclosures under allowed of sale North Carolina had 537, (1830). Battle, (1 Eq.) N.C. Dev. 542 v. 16 trust. See Harrison compre- Assembly Chapter to be the has crafted General non-judicial fore- statutoiy governing framework hensive and exclusive (2015) (notice by power E.g., §§ N.C.G.S. 45-21.16 of sale. closures sale), (2015) -21.27 (reporting of requirements), (2015) -21.26 hearing possession); see also Durant (2015) (orders for (upset bid), -21.29 Carolina’s Comment, Property—Changes in North Glover, Real M. 903, (1976) (discussing the evo- Law, L. Rev. 913-15 Foreclosure Procedure non-judicial statutes). The Rules of Civil foreclosure lution of E.g., explicitly engrafted into the statute. N.C.G.S. apply do not unless Rules”); see also In “provided as 45-21.16(a) (requiring service § S.E.2d Young, LLP, 363 N.C. Ernst & re special- prescribed “its own 105-258(a) (2007) that N.C.G.S. (holding § By establishing an exclu- supplants Rules”). procedure that ized require filing non-judicial does not procedure, foreclosure sive Nonetheless, Chapter require degree a minimal 45 does of an action.5 requiring a creditor to estab- judicial purpose for the sole oversight 45-21.16(d). § foreclosure. See N.C.G.S. right to lish its hearing. 45-21.16(a). Id. Given the give § must notice of The creditor relationship and the state federal fluid nature of the debtor-creditor multiple why a reasons proceedings,6 there oversight of foreclosure example, hearing. For not to with the might creditor choose may in law mortgage payments, changes seek to remit late debtor ability requirements, affecting the creditor’s thus alter foreclosure 7:20, nn.1, (6th al., § Law at 944 & S. et Real Estate Finance 4. See Grant Nelson by power thirty-five jurisdictions (noting 2014) allow ed. “opportu only requiring sale, an are the states of which North Carolina and Colorado Mortg., compare, e.g., parte nity sale”); Ex GMAC before the foreclosure Constr., judicial 2013) (no oversight), LLC, (Ala. with Handler Inc. 848-49 176 So. 3d only (Del. 1993) (foreclosure Bank, N.A., available A.2d 362-63 v. CoreStates judicial action). “Any papers required notice, order, Article to be filed in the office or other 5. special proceeding.” superior filed in the same manner as a court shall be cleric 45-21.16(g). *5 Family Act, (2012) 6.See, Mortgage e.g., Single §§ 12 U.S.C. 3751-3768 Foreclosure Department non-judicial power mortgages held the of (governing of sale foreclosure of thereby law); homes, preempting Development single-family state Housing and Urban (prohibiting 1024.41(g) (2016) sale under certain circum- foreclosure § see also 12 C.F.R. complete application”). mitigation a loss a borrower submits stances “[i]f IN SUPREME THE COURT N.C. proceed. proceeding Such a decision refrain from is not a to “dismissal” simply a consequence. but withdrawal of the notice and has no collateral
Section
requires
give
adequate
45-21.16
a creditor to
the debtor
initially
of a hearing,
notice
which
occurs
clerk of court.
before the
See id.
45-21.16(a), (d);
Props., Inc.,
§
see also In re Foreclosure
Goforth
369, 374, 432
855, 858(1993) (Section
S.E.2d
45-21.16does not “alter
essentially
remedy,
the
contractual nature of the
but rather [ ] satisfies]
process requirements.”
minimum due
(quoting
the
In re Foreclosure of
Burgess,
App. 599, 603,
918, appeal
dismissed,
provides
At the
the debtor is free to raise
“tending
to
negate
findings required
under N.C.G.S.
[ ]
45-21.16,”
Props.,
374-75,
In
re
[369 Likewise, any right court_”). affect to foreclosure action in not may proceed non-judicially on default. creditor another competency, admissibility, sufficiency “The and of the evidence is a . Queen City Lee, determine.” Coach Co. v. matter for court to [trial] 320, 323, 341, (1940). 11 218 N.C. S.E.2d 343 We review the court’s documentary hearsay of evidence under the rule for abuse of exclusion 399, Blake, 632, 637-38, State N.C. S.E.2d 402 discretion. See v. 346 Owens-Corning Fiberglas Corp., 276, Home 4 F.3d (1986); accord v. 1993). Cir. “A be for abuse of (4th 283-84 trial court reversed discre manifestly only upon ruling unsupported by was showing tion that its of reason and could have been the result a reasoned decision.” State 55, Riddick, 749, 756, (citing, alia, inter (1986) v. 340 S.E.2d White, 777, (1985)). v. White question precise this Court the trial before is whether by finding abused its discretion Deutsche Bank failed to establish the trustee, appointment prerequisite right pro- of the to its substitute non-judicial foreclosure, if so, and what is the effect of that ceed appointment. Exhibit 4 is decision. essential substitute trustee’s Appeals majority noting of was Though the Court correct in evi- dentiary rules are in the setting, more relaxed power attorney given significant internal inconsistencies in the present grounds Deutsche failure to at issue and Bank’s alternative admissibility, its we conclude that the trial court did not abuse discre- refusing tion in to admit Exhibit 4 into evidence. plainly internally Henry 4 is
Exhibit inconsistent. See 5 John at Common at Wigmore, Evidence Trials Law 253-54 §§ necessity (James ed., 1974) (Trustworthiness H. Chaboum are the Bank Exhibit admissibility.) hallmarks of Deutsche tendered the as a photocopy, pages length, page, fourteen in 2013. The last executed County, recording stamp “Montgomery which contains a from the NC” Deeds, only pages Exhibit is Register length indicates the eleven “spe- was recorded in id. at (explaining § 2010. Cf. (emphasis omitted)). cific errors” undermine a record’s trustworthiness ways inconsistency, there were none were While to overcome effec- See, e.g., 45-10(a) (2015) (allowing tuated here. noteholder to § appoint directly); 45-21.16(d) (allowing § substitute trustee id. “affida- 8C-1, 201(d) (2015) (judi- copies”); § vits and certified see also id. Rule id., Rule notice); 803(6) (2015) (business records). cial Deutsche Bank provided photocopy from could have recorded document county proper register deeds, but did id. 47-28(a) not do so. See attorney (“[P]owers affecting property real . . . reg- shall be in the register county istered office of the deeds of in which the *7 principal is property domiciled or where the real lies.”).
Though superior correctly the court refused authorize the substi- proceed, tute trustee to erroneously the court entered “dismissal with prejudice.” Non-judicial judicial action; foreclosure is not a the Rules judicata of Civil Procedure and traditional doctrines res of and collat- estoppel judicial applicable eral apply. actions not do To the extent prior implies otherwise, that case law hereby such cases overruled. While it true that Bank proceeding Deutsche is barred from again with non-judicial default, foreclosure may based the same the Bank none- by judicial with theless foreclosure action.8 The Bank also non-judicial with upon foreclosure based different default. interpreted The trial court’s be analysis. order is to consistent this Though requirements evidentiary the under proceedings ways are relaxed and there were to overcome the Exhibit’s inconsistencies, we cannot conclude the had trial court no reasonable exclude Accordingly, basis to Exhibit 4. the the we reverse decision of Appeals, of evidentiary ruling Court which reversed the of the trial court. REVERSED.
HUDSON, concurring in J. result. agree that
I this Court should reverse the decision of the of Court Appeals attempt and affirm the trial court’s this dismissal of to foreclose by power focus, however, primary I argument sale. would on the parties, properly the which addresses whether the trial court excluded necessary that right exhibits were to establish the to foreclose. I agree majority with the that Exhibit 4 “is at the crucial document issue in this appeal.” Thus, review we should the trial court’s decision to exclude provide proper 4 “based Exhibit a failure foundation and hear- say.” excluding conclude appropriately I that the trial court acted in 4. Exhibit explain fully precisely statutory addition,
In I would more and the proper scope applicability the of thé the basis for Rules of Evidence power-of-sale First, Rules of Civil foreclosures. and Procedure day payments monthly The Note indicates are due in installments on the first 8. month, maturing August on 1 2036. SUPREME COURT IN THE majority’s Appeals broad statement majority agrees with the Court non-judicial foreclo- relaxed in the rules are more only in clarify are relaxed the Rules of Evidence setting. I would sure provided specifically only extent hearing before the clerk court, hearing in the trial In the de novo 45-21.16(d). in N.C.G.S. § provide for relaxation specifically does not however, the statute proceed- apply fully, as in rules, the Rules of Evidence so rules (These R. Evid. 101 and 1101. N.C. of Evidence 101 ing, per Rules and with State to the extent courts of this proceedings govern otherwise (“Except R. 1101 as 1101.”); in Rule id. exceptions stated apply by statute, to all actions these rules provided (b) subdivision State.”). proceedings in the courts of Procedure that the “Rules of Civil Second, majority announces agree. I not the statute.” do explicitly engrafted into apply unless do Procedure, them- which are very the Rules of Civil first sentence of *8 pro- govern the statutory enactment, provides: “These rules shall selves a State of North Carolina superior district courts of the in the cedure except differing a nature when proceedings of a civil actions and all added) by (emphasis N.C. R. Civ. P. 1 prescribed statute.” procedure is majority’s assertion agree I do not with “Scope Rules”). (titled they apply engrafted “unless do not Rules of CivilProcedure that the they apply pro- in all presume themselves statute”; the Rules into prescribed. I con- procedure is a different ceedings in the courts unless majority has apply; rules presumption that these this creates a clude authority. around, citing no presumption turned this proceeding Additionally, distinguishes between the statute court, although hearing in the trial and the de novo before the clerk clarify 45-21.16 § that since N.C.G.S. majority does not. I would clerk, see procedure before the prescribes different do Rules of Civil Procedure 45-21.16(c)-(dl) (2015), the N.C.G.S. § prescribe such however, the statute does not apply; because court, id. hearing in the trial see for the de novo procedure alternate Procedure that the Rules of Civil I would conclude 45-21.16(e) (2015), such, I concur in proceeding, per Rule 1. As there, as in court apply the result. sitting of a trial court appellate court reviews the decision
“When an
by
and effect of a verdict
jury, ‘findings of fact have the force
without a
support them
appeal if
evidence to
there is
jury
and are conclusive
173,
464, 467, 738 S.E.2d
175
Bass, 366 N.C.
In
Foreclosure
re
29, 33
Cofield,
160 S.E.2d
v.
273 N.C.
(2013) (quoting Knutton
reviewable
of law are
omitted)). Conclusions
(1968) (citations
231
appellate court de
467,
novo. Id. at
(citing
Blake does not
this statement. Blake states that
leading rest in the trial court’s discretion and will not be disturbed in the
an
absence of
Blake,
637,346
support
statement,
abuse of discretion.”
317 N.C. at
S.E.2d at 402. In
of this
Young,312,
669, 326
(1985),
Blake cites State v.
“[r]ulings
N.C.
S.E.2d 181
which states that
leading questions
discretionary
only
the trial court on
and reversible
for abuse of
Young,
678,
specifically
discretion.”
232 RE IN FORECLOSURE 222 N.C.
.
Bank)
(the
Deutsche Bank
concluded that
Here the trial court
...
with the foreclosure.”
evidence
to
“failed to offer sufficient
prove
possessed the
“failed to
found that the Bank
The trial court
[it]
4,
including Exhibit
excluding several exhibits
Foreclose” after
Right to
appointment.
trustee’s
establishing
to
the substitute
which was essential
provide a
upon a failure to
Exhibit 4 “based
The trial court excluded
hearsay.”
hearing before the
During the de novo
proper
and
foundation
noted,
specifically
as to Exhibit
court, the trial court
“[t]he
-
hearsay
only
exception
a taken no
this is not
Court would determine
internally
I would further
is
inconsistent.
rule, but also the document
from counsel which has
presented
to the Court
note this document
precise
this Court is whether
Thus, the
issue before
inconsistent dates.”
appropriately
excluding
Exhibit 4.
acted
the trial court
specifically explains
that in the
45-21.16(d)
Subsection
parties
the evidence of the
clerk, “the clerk shall consider
before the
required
per
or
forms of evidence
consider, in addition to other
copies
documents.”
law,
mitted
affidavits
certified
provision
affidavits to be
added). This
allows
45-21.16(d) (emphasis
testimony
‘necessity
expeditious
when “the
for
place
used in
of live
efficacy
substantially
about the
outweighs
concerns
procedure’
testify by affidavit.” In re Foreclosure
allowing
[the witness]
477, 486,
398, 404-05(2003) (quoting In
Brown,
App.
N.C.
577 S.E.2d
375, 378, 170
84, 86(1969)). The
Custody Griffin,
App.
N.C.
S.E.2d
re
copies
documents,”
“certified
also allows clerks to consider
statute
45-21.16(d). The statute
presumably
place
originals.
N.C.G.S. §
forms
particular
of evidence “in addition to other
allows for these
forms
required
permitted by
(emphasis added).
Id.
This
law.”
of evidence
exception for affidavits and certified
that aside from this
means
narrow
consider,”
documents,
that the “clerk shall
copies of
the other evidence
I
Accordingly,
Evidence.
con
id.,
generally conform to the Rules of
must
power-of-sale
foreclo
of Evidence are relaxed
clude that the Rules
specifically provided
only
hearings before the clerk
to the extent
sure
45-21.16(d).
in N.C.G.S. §
hearsay
novo on
constitutes
is reviewed de
as to whether an out-of-court statement
App. 78, 87-88,
appeal.”
Mitler,
(quoting
676 S.E.2d
disc. rev.
State v.
appeal
denied,
(2009)),
denied,
dismissed and disc. rev.
The photocopy Bank to introduce Exhibit which is a “of a purporting Attorney document to granting be a Limited Power of certain powers Servicing, to Loan stamp Ocwen LLC.”There is no on Exhibit 4 certifying copy; thus, the exhibit as true accurate it is an uncerti- copy. fied specifically
The trial court noted has that the document internal particularly inconsistencies, with dates and numbers pages. of trial “proper court also noted the lack of a I foundation.” conclude in appropriately basis,2 trial court acted excluding the document on regardless applicable of the of standard review. above, I supe-
As noted conclude that once this matter reached court, applied. rior the Rules of Evidence Under the Carolina North Evidence, “[e]veiy writing sought prop- Rules of to be admitted must be erly authenticated” in order to establish the foundation for the docu- admissibility. Herzig, ment’s Inv’rs Title Ins. Co. v. (citations omitted). Rule 901 states that “[t]he
requirement precedent of authentication or as a identification condition admissibility support finding is satisfied evidence sufficient question proponent what its N.C. R. Evid. matter claims.” provides ways 901(a). Rule 901 a nonexclusive list evidence be “Testimony authenticated, including Knowledge” Witness and' R. Reports.” (7).3 “Public Id. 901(b)(1), Records 2. matter can resolved the trial exclusion Because this be based court’s provide my proper foundation, Exhibit for failure view this Court need not reach inadmissibility hearsay. court, i.e., ground alternate noted pertinent part: 3. Rule 901 reads way way By only, (b) Illustrations.- and not illustration
limitation, examples following identifi- of authentication or requirements conforming this rule: cation with the *11 THE SUPREME COURT IN (2016)] [369 self-authentication, of evidence. provides Rule 902 for methods authenticity... required with is not Specifically, evidence of “[e]xtrinsic . . . Copies ... of Public Records respect following: (4) Certified to R. Documents.” Id. 902.4 (8) Acknowledged [and] Lyew) but attorney question (Ms. here did a five witness The Bank’s authen- lay enough to establish the doing, to of a foundation in so failed testimony the wit- ticity regarding did of Exhibit 4. Counsel not elicit employment with job responsibilities, experience, work time ness’s any personal knowledge of the Ocwen, showing her or other details satisfy testimony minimal question. in This failed to and loan documents public Additionally, a requirements. while evidence that authentication Testimony Knowledge.- Testimony (1) with Witness it a matter is what is claimed to be. Reports.- writing (7) Evidence a Public Records or by law recorded or and in fact authorized to be filed public office, purported pub- or filed in a or recorded record, report, statement, compilation, or data lic public form, where nature is from the office items of this kept. are (7). 901(b)(1), N.C. R. Evid. pertinent part:
4. Rule 902 reads authenticity precedent as a condition Extrinsic evidence admissibility required respect following: with Copies copy (4) Records.- A of an offi- Certified of Public report entry therein, or cial record or or of document by actually or law be recorded filed and authorized office, compi- public including or filed data recorded in a by any form, lations certified as correct the custodian certification, by person make the or other authorized to complying paragraph (1), (2), (3) or certificate complying with or law of the United States or of State. Acknowledged accompanied Documents.- Documents . acknowledgment executed in the manner a certificate by notary provided public law autho- other officer acknowledgments. rized law to take Id. R. 902. report public
record or “is from the office where items of this nature kept” could serve authenticate this document to the extent this may qualify public document as a or report, 901(b)(7), record id. R. recording stamp included with Exhibit contradicts the document itself it “Montgomery County, NC,” indicates that was recorded in and not *12 (Mecklenburg “Charlotte” the County), as witness testified should be the such,
case here. As there is no indication that this was in document fact or, so, Thus, satisfy recorded require- if where. Exhibit does not the Finally, any ments of Rule argument 901. under Rule 902 fails because parties present the did argument before the trial court. authenticated, internally
In not being addition to Exhibit 4 is incon- majority notes, sistent. recording stamp As the the on Exhibit indicates that the is pages length document eleven in in in was recorded Montgomery County, In fact, North Carolina. the actual Exhibit docu- pages ment is in length, fourteen was executed in and should have County, been Mecklenburg according recorded in to the witness. copy Because Exhibit is not a certified and it contained internal inconsistencies, personal and because no witness testified to knowl- edge it, appropriately excluding about trial court in the acted Exhibit applicable regardless of review. standard Without Exhibit the Bank failed to offer sufficient of the with a right evidence power-of-sale supported by foreclosure. The trial court’s conclusion is findings Accordingly, of fact and evidence. court’s entirely appropriate. dismissal on was this basis agree majority addition, In I with the that the Bank “is barred from proceeding again on the foreclosure based same default, may the Bank nonetheless with foreclosure [and that] by judicial conclusion, To however, action.” reach that I do not think it necessary applicable statutory authority or consistent with to deem the inapplicable. Rules of Civil Procedure
Turning procedure here, foreclosure at issue it is clear to me that in “Part 2. Sale (codified N.C.G.S. 45-21.16 Procedure for § [Under Assembly prescribed Power the General has statute a Sale]”), dif- procedure hearing ferent for the the clerk. The details of that before procedure explained (c) through (dl) subsections N.C.G.S. “appealed judge 45-21.16.If when the of the district § matter is superior hearing. it is to in a de N.C.G.S. court,” be reviewed novo superior 45-21.16(dl). § the case has moved into the district or Once judge “who authorized to for the de novo before a shall be prescribed appeal,” procedure stage hear of the no further for that COURT SUPREME IN THE IN RE MACK requires only that certi- (e) Subsection 45-21.16(e). “[a] litigation. §Id. filed in all appeal shall be a result of the entered as copy order fied no dif- filed.” Id. Because hearing has been notice of where the counties proceed- for the 45-21.16(e) prescribed § in N.C.G.S. procedure is fering Civil that the Rules of superior court, I conclude the district or ing in 1,P. 1. N.C. R. Civ. with Rule See apply there, in accordance procedure determination, trial court excluded the clerk’s Upon appeal from right its Bank failed to establish that the properly 4 and concluded Exhibit matter, under the Rules of the by power of sale. Dismissal to foreclose Nonetheless, as point. proper ruling at that Procedure, was the of Civil proceed with fore- default, Bank still based on this to the claim Article (2015) (“This 45-21.2 by judicial action. See closure any right to does not affect Power of 2A. Sales Under Sale”] [“Article action.”). applicable to such court, and is not action herein, I in the result. forth concur For the reasons set opinion. join concurring in this and ERVIN BEASLEY Justices *13 14-126B A NO. INQUIRY IN RE CONCERNING JUDGE, Respondent PETER MACK, JR., No. 250A16 Filed December reported—hearing criminal Judges—gross income not rental involving tenant—restitution matter publically reprimanded for not judge was A district court from a accepting restitution rental income and reporting gross involving matter the tenant presiding a criminal tenant while over The Judicial complaining witness. judge had initiated as the that the dispositional fact, including the findings of Standard Commission’s by clear, convincing supported cogent, determinations, were Additionally, findings the Commission’s in the record. evidence findings law. The Commission’s supported conclusions of fact its Supreme adopted by Court. were and conclusions 7A-376and pursuant to N.C.G.S. §§ is before the Court This matter Commission Judicial Standards -377 a recommendation Jr., Mack, Judge Respondent Peter 16 June 2016 that entered