In Re Goddard & Peterson, PLLC

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA15-591

Filed: 5 July 2016

Cumberland County, No. 12-SP-1120

IN THE MATTER OF THE FORECLOSURE by Goddard & Peterson, PLLC,

Substitute Trustee, of a Deed Of Trust Executed by Lillian A. Cain Dated October 19,

1999 and Recorded on October 27, 1999 in Book No. 5183 At Page 131 of the

Cumberland County Public Registry.

Appeal by respondent from order entered 16 February 2015 by Judge Ebern T.

Watson, III in Cumberland County Superior Court. Heard in the Court of Appeals 3

November 2015.

Rogers Townsend & Thomas, PC, by Matthew T. McKee, for petitioner-appellee.

Brent Adams & Associates, by Brenton D. Adams, for respondent-appellant.

CALABRIA, Judge.

Lillian Cain (“respondent”) appeals from an order authorizing the Substitute

Trustee, Goddard & Peterson, PLLC (“G&P”), to proceed with the foreclosure of the

Deed of Trust for 1478 Thelbert Drive in Fayetteville, North Carolina (“the

property”). We affirm.

I. Background

On 19 October 1999, respondent borrowed $74,500 by executing a promissory

note (“the Note”). To secure the loan evidenced by the Note, respondent executed a

Deed of Trust on the property. Initially, the Note was specially endorsed to

Household Realty Corporation (“HRC”) by Household Bank, FSB; HRC later specially

IN RE: CAIN

Opinion of the Court

endorsed the Note to Beal Bank, S.S.B. (“petitioner”). Subsequently, respondent

defaulted on the deed of trust.

In April 2012, petitioner executed a Substitution of Trustee of the Deed of

Trust substituting Rogers Townsend & Thomas (“RTT”) for the original trustee,

Andre F. Barrett. Roughly a month later, RTT sent respondent a pre-foreclosure

notice for the property that included the date of her last scheduled payment, which

was made on 1 December 2011. In June 2012, RTT sent respondent a letter informing

her, inter alia, that it had been retained to initiate foreclosure proceedings for the

property, and that she could pay the amount of the debt ($68,559.51), dispute the

debt, or dispute that petitioner was the creditor. On 17 September 2012, RTT

executed an affidavit certifying that a Notice of Hearing and a Notice of Substitute

Trustee’s Foreclosure Sale of the property were mailed to respondent.

On 24 September 2012, the Clerk of Superior Court of Cumberland County

heard evidence and found, inter alia, that notice was given to the record owner of the

property, that petitioner was the holder of the Note and Deed of Trust, that the Note

was in default, and that the Deed of Trust gave petitioner the right to foreclose under

a power of sale. Consequently, the clerk entered an order allowing RTT to proceed

with the foreclosure sale. Respondent noted an appeal to Cumberland County

Superior Court from the clerk’s order.

On 23 September 2013, respondent served RTT with a Request for Admissions,

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which asked petitioner to admit it was not the holder of the Note and the Deed of

Trust. Respondent also filed a Certificate of Service specifying that copies of the

Request had been served on all parties and were properly addressed to the attorney

or attorneys for all parties. The only names listed on the Certificate of Service,

however, were attorneys David W. Neill and Michael Morris from RTT, which was

acting as Substitute Trustee at the time. It appears that petitioner never responded

to the Request for Admissions.

On 13 October 2013, petitioner executed another Substitution of Trustee,

substituting G&P for RTT. After being relieved from its duties as Substitute Trustee,

RTT began representing petitioner in the foreclosure proceedings. In April 2014,

G&P filed a Notice of Appeal Hearing and certified that respondent and her attorney

were served.

On 16 February 2015, the Honorable Ebern T. Watson, III presided at the

hearing on respondent’s appeal from the clerk’s Order. Before any evidence was

presented, respondent served petitioner with a motion to dismiss the foreclosure

proceedings and presented the unfiled motion to Judge Watson. The motion was

based entirely upon petitioner’s purported failure to answer respondent’s Request for

Admissions. Because the motion had not been scheduled to be heard separately or at

the de novo hearing, neither petitioner nor G&P had notice that respondent planned

to move the superior court to dismiss the proceeding. Judge Watson orally denied

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respondent’s motion.

During the hearing, petitioner introduced an Affidavit of Indebtedness which

was executed by Tracy Duck (“Duck”), an “authorized signer” for petitioner. A

number of exhibits were attached to Duck’s affidavit, including photocopies of the

Note, the Deed of Trust, and accounting records pertaining to respondent’s loan from

petitioner. Duck’s affidavit was admitted into evidence over respondent’s objection,

as were the exhibits. Respondent also objected to the appearance of RTT as

petitioner’s counsel, but Judge Watson overruled the objection and proceeded with

the hearing.

After hearing all the evidence, the superior court entered an order on 16

February 2015 that authorized G&P to proceed with the foreclosure sale. Respondent

appeals.

II. Standard of Review and Generally Applicable Law

“ ‘The applicable standard of review on appeal where, as here, the trial court

sits without a jury, is whether competent evidence exists to support the trial court’s

findings of fact and whether the conclusions reached were proper in light of the

findings.’ ” In re Foreclosure of Adams, 204 N.C. App. 318, 320, 693 S.E.2d 705, 708

(2010) (citation omitted). “ ‘Competent evidence is evidence that a reasonable mind

might accept as adequate to support the finding.’ ” Id. at 321, 693 S.E.2d at 708

(citations omitted).

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“ ‘A power of sale is a contractual arrangement [which may be contained] in a

mortgage or a deed of trust[.]’ ” Id. (citation omitted). When a deed of trust contains

a power of sale provision, the trustee or mortgagee is vested with the “ ‘power to sell

the real property mortgaged without any order of court in the event of a default.’ ” In

re Michael Weinman Assocs. Gen. P’ship, 333 N.C. 221, 227, 424 S.E.2d 385, 388

(1993) (citation and internal quotation marks omitted). “A foreclosure by power of

sale is a special proceeding commenced without formal summons and complaint and

with no right to a jury trial.” United Carolina Bank v. Tucker, 99 N.C. App. 95, 98,

392 S.E.2d 410, 411 (1990) (citation omitted). Once a mortgagee or trustee has filed

a notice of hearing with the clerk of court and served that notice on the necessary

parties, N.C. Gen. Stat. § 45-21.16(d) (2015) provides that the clerk shall conduct a

hearing on the matter. At the hearing, the lender must prove and establish the

following six criteria before the clerk of court may authorize the mortgagee or trustee

to proceed with the foreclosure under a power of sale:

(i) [a] valid debt of which the party seeking to foreclose is

the holder, (ii) default, (iii) [a] right to foreclose under the

instrument, (iv) notice to those entitled to such under

subsection (b), (v) that the underlying mortgage debt is not

a home loan as defined in G.S. 45–101(1b) . . . and (vi) that

the sale is not barred by G.S. 45–21.12A[.]

Id.

In the context of a section 45-21.16 foreclosure proceeding, “the clerk . . . is

limited to making the six findings of fact specified under subsection (d) . . . .” In re

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Foreclosure of Young, 227 N.C. App. 502, 505, 744 S.E.2d 476, 479 (2013). The clerk’s

decision may be appealed to superior court for a hearing de novo, N.C. Gen. Stat. §

45-21.16(d1), but the superior court is similarly limited to determining whether

subsection 45-21.16(d)’s six criteria have been satisfied. In re Foreclosure of Carter,

219 N.C. App. 370, 373, 725 S.E.2d 22, 24 (2012). However, in conducting its review,

the superior court may consider evidence of legal defenses that would negate the

findings required under section 45-21.16. In re Foreclosure of Goforth Properties, Inc.,

334 N.C. 369, 375, 432 S.E.2d 855, 859 (1993). “A foreclosure under power of sale is

a type of special proceeding, to which our Rules of Civil Procedure apply.” Lifestore

Bank v. Mingo Tribal Pres. Trust, 235 N.C. App. 573, 577, 763 S.E.2d 6, 9 (2014),

review denied, __ N.C. __, 771 S.E.2d 306 (2015).

III. Motion to Dismiss

Respondent first argues that the trial court erred by denying her motion to

dismiss the foreclosure proceeding. According to respondent, since petitioner did not

respond to her formal Request for Admissions, it was conclusively established that

petitioner was not the holder of the Note or the Deed of Trust. Respondent asserts

that by ignoring these judicial admissions, the superior court erroneously found that

petitioner was “the holder of the Note and Deed of Trust sought to be foreclosed.” We

disagree.

Rule 36(a) of the North Carolina Rules of Civil Procedure provides, in pertinent

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part, that when a written request for admissions is properly served upon a party to a

lawsuit,

[t]he matter is admitted unless, within 30 days after

service of the request, or within such shorter or longer time

as the court may allow, the party to whom the request is

directed serves upon the party requesting the admission a

written answer or objection addressed to the matter, signed

by the party or by his attorney[.]

N.C. Gen. Stat. § 1A-1, Rule 36(a) (2014). Rule 36(b), which governs the effect of

admissions, provides that “[a]ny matter admitted under this rule is conclusively

established unless the court on motion permits withdrawal or amendment of the

admission.” Id. § 1A-1, Rule 36(b). “In order to avoid having requests for admissions

deemed admitted, a party must respond within the period of the rule if there is any

objection whatsoever to the request.” Town of Chapel Hill v. Burchette, 100 N.C. App.

157, 162, 394 S.E.2d 698, 701 (1990). “Failure to do so means that the facts in

question are judicially established.” J.M. Parker & Sons, Inc. v. William Barber, Inc.,

208 N.C. App. 682, 688, 704 S.E.2d 64, 68 (2010).

“A judicial admission is a formal concession which is made

by a party in the course of litigation for the purpose of

withdrawing a particular fact from the realm of dispute.

Such an admission is not evidence, but it, instead, serves

to remove the admitted fact from the trial by formally

conceding its existence.”

Eury v. N.C. Emp’t Sec. Comm’n, 115 N.C. App. 590, 599, 446 S.E.2d 383, 389 (1994)

(internal citation omitted) (quoting Outer Banks Contractors, Inc. v. Forbes, 302 N.C.

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599, 604, 276 S.E.2d 375, 379 (1981)).

In the instant case, respondent’s motion to dismiss was based entirely upon

petitioner’s purported judicial admissions. Unfortunately for respondent, she failed

to obtain a written ruling on her motion. Although the superior court announced its

decision to deny respondent’s motion at the de novo hearing, “an order rendered in

open court is not enforceable until it is ‘entered,’ i.e., until it is reduced to writing,

signed by the judge, and filed with the clerk of court.” West v. Marko, 130 N.C. App.

751, 756, 504 S.E.2d 571, 574 (1998); N.C. Gen. Stat. § 1A-1, Rule 58 (“[A] judgment

is entered when it is reduced to writing, signed by the judge, and filed with the clerk

of court.”); see also Onslow Cnty. v. Moore, 129 N.C. App. 376, 388, 499 S.E.2d 780,

788 (1998) (explaining that “Rule 58 applies to judgments and orders, and therefore,

an order is entered when the requirements of . . . Rule 58 are satisfied”). The record

reveals that respondent has appealed only from the superior court’s order authorizing

G&P to proceed with the foreclosure sale. This order neither mentions respondent’s

motion nor does it contain any findings or conclusions of law on the motion. Since a

written order was never “entered” on respondent’s motion to dismiss, no appeal could

be taken from it. Mastin v. Griffith, 133 N.C. App. 345, 346, 515 S.E.2d 494, 494-95

(1999) (“Entry of judgment by the trial court is the event which vests jurisdiction in

this Court. Thus, an order may not properly be appealed until it is entered.” (internal

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citation and quotations marks omitted)). Accordingly, the issue respondent raises

regarding her motion to dismiss is not properly before us.1

IV. Appearance of Counsel

Respondent next argues that the court erred in allowing RTT, the former

Substitute Trustee, to appear as counsel for petitioner and advocate against

respondent in the de novo foreclosure hearing. Respondent’s argument, as we

understand it, is that (1) RTT owed a fiduciary duty to her when this matter went

before the superior court, and that (2) RTT’s representation of petitioner constituted

a breach of that duty. We disagree.

Although fiduciary relationships often escape precise definition, they generally

arise when “there has been a special confidence reposed in one who in equity and good

conscience is bound to act in good faith and with due regard to the interests of the

one reposing confidence.” Green v. Freeman, 367 N.C. 136, 141, 749 S.E.2d 262, 268

(2013) (quoting Dalton v. Camp, 353 N.C. 647, 651, 548 S.E.2d 704, 707 (2001))

(internal quotation marks omitted). Fiduciary relationships are characterized by

“ ‘confidence reposed on one side, and resulting domination and influence on the

1 We further note that respondent’s Request for Admissions was served one year after entry of

the clerk’s order authorizing the foreclosure sale and approximately a year and a half before the de

novo hearing in the superior court. Thus, petitioner’s purported failure to respond to the Request was

old news when the de novo hearing was held. Although we impute no bad faith to respondent, the

basis of her motion—judicial admissions under Rule 36(b)—and the manner in which it was presented

to the superior court—with no prior notice to the court or respondent—suggest nothing more than an

attempt to introduce confusion into the de novo hearing and perhaps complete a “Hail Mary” before

the foreclosure clock ran out.

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other.’ ” Dalton, 353 N.C. at 651, 548 S.E.2d at 708 (citation and emphasis omitted).

“To state a claim for breach of fiduciary duty, a plaintiff must allege that a fiduciary

relationship existed and that the fiduciary failed to ‘act in good faith and with due

regard to [the plaintiff’s] interests[.]’ ” Toomer v. Branch Banking & Trust Co., 171

N.C. App. 58, 70, 614 S.E.2d 328, 337 (2005) (quoting White v. Consol. Planning Inc.,

166 N.C. App. 283, 293, 603 S.E.2d 147, 155 (2004)). Furthermore “[t]his Court has

held that breach of fiduciary duty is a species of negligence or professional

malpractice. Consequently, [such] claims require[ ] proof of an injury proximately

caused by the breach of duty.” Farndale Co., LLC v. Gibellini, 176 N.C. App. 60, 68,

628 S.E.2d 15, 20 (2006) (citations and internal quotation marks omitted).

“In deed of trust relationships, the trustee is a disinterested third party acting

as the agent of both [parties].” In re Proposed Foreclosure of McDuffie, 114 N.C. App.

86, 88, 440 S.E.2d 865, 866 (1994). As such, in a typical foreclosure proceeding,

trustees have a long-recognized fiduciary duty to both the debtor and the creditor. In

re Foreclosure of Vogler Realty, Inc., 365 N.C. 389, 397, 722 S.E.2d 459, 465 (2012).

“Upon default [a trustee’s] duties are rendered responsible, critical and active and he

is required to act discreetly, as well as judiciously, in making the best use of the

security for the protection of the beneficiaries.” Id. (quoting Mills v. Mut. Bldg. Loan

Ass’n, 216 N.C. 664, 669, 6 S.E.2d 549, 552 (1940)). More specifically, “the trustee . . .

is required to discharge his duties with the strictest impartiality as well as fidelity,

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and according to his best ability.” Hinton v. Pritchard, 120 N.C. 1, 3, 26 S.E. 627, 627

(1897).

Here, since RTT was removed as Substitute Trustee on 13 October 2013, its

formal fiduciary duties to respondent ended well before the 2 February 2015 de novo

hearing in superior court. Apart from citing the general fiduciary duties of an acting

trustee, respondent fails to explain how RTT’s representation of petitioner at the de

novo hearing either violated a specific principle of law or was undertaken in bad faith.

Also absent from respondent’s brief is an argument that she sustained some specific

injury that was proximately caused by RTT’s conduct. We suspect this argument has

not been made because it does not exist. At the time of the hearing, G&P, the acting

Substitute Trustee, was charged with acting in the best interests of both petitioner

and respondent. When the parties appeared before the superior court, RTT had no

obligation to act as a disinterested party. Consequently, we discern no prejudice to

respondent’s rights or interests as a result of RTT’s representation of petitioner.

Furthermore, looking beyond the substantive law, we cannot see how RTT’s

representation of petitioner allowed petitioner to procure an unfair advantage in the

foreclosure proceeding. While not precedential authority for this Court, North

Carolina State Bar Ethics Opinions (“RPCs” and “CPRs”) “provide ethical guidance

for attorneys and . . . establish . . . principle[s] of ethical conduct.” 27 N.C. Admin.

Code 1D.0101(j) (2015). Our State Bar has addressed the specific issue that

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respondent has raised. N.C. CPR 220 (1979) provides that if a lawyer who is acting

as a trustee for a deed of trust resigns his position as trustee, the lawyer may

represent the petitioner bringing the foreclosure claim “as long as no prior conflict of

interest existed because of some prior obligation to the opposing party.” N.C. RPC 82

(1990) states that “former service as a trustee does not disqualify a lawyer from

assuming a partisan role in regard to foreclosure under a deed of trust.” N.C. RPC

90 (1990) ties it all together, and provides that

[i]t has long been recognized that former service as a

trustee does not disqualify a lawyer from assuming a

partisan role in regard to foreclosure under a deed of trust.

CPR 220, RPC 82. This is true whether the attorney

resigns as trustee prior to the initiation of foreclosure

proceedings or after the initiation of such proceedings

when it becomes apparent that the foreclosure will be

contested.

Furthermore, in 2013, the State Bar adopted Formal Opinion 5, which more

specifically defined RPC 90, by stating:

[A] lawyer/trustee must explain his role in a foreclosure

proceeding to any unrepresented party that is an

unsophisticated consumer of legal services; if he fails to do

so and that party discloses material confidential

information, the lawyer may not represent the other party

in a subsequent, related adversarial proceeding unless

there is informed consent.

N.C. Formal Opinion 5 (2013).

In the instant case, respondent does not argue that she was an unrepresented,

unsophisticated consumer of legal services or that she disclosed material confidential

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information to RTT when it was acting as Substitute Trustee. Instead, the record

suggests that respondent was represented by counsel throughout the contested

foreclosure proceedings held before the clerk and the superior court, which spanned

more than three years. Further, respondent has not demonstrated that RTT failed

to notify her of its intent to represent petitioner in the foreclosure proceedings.

Because the record is replete with correspondence from RTT notifying respondent of

and updating her on the de novo hearing in superior court, she has failed to

demonstrate any legal or ethical violation in connection with RTT’s representation of

petitioner at that proceeding. Accordingly, the superior court did not err in overruling

respondent’s objection to such representation.

V. Duck’s Affidavit of Indebtedness

Respondent’s final argument is that the trial court erred in admitting Duck’s

affidavit and its attachments into evidence. Specifically, respondent contends that

(1) Duck was not a qualified witness as required under Rule 803(6) of the North

Carolina Rules of Evidence (“the business records exception” to the hearsay rule), (2)

the Note and Deed of Trust were not business records and were not properly

authenticated, and (3) certain statements contained in Duck’s affidavit were

inadmissible hearsay. We disagree.

“The admissibility of evidence in the trial court is based upon that court’s

sound discretion and may be disturbed on appeal only upon a finding that the decision

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was based on an abuse of discretion.” In re Foreclosure by David A. Simpson, P.C.,

211 N.C. App. 483, 488, 711 S.E.2d 165, 170 (2011). As a result, the superior court’s

ruling may be reversed only upon a showing that it was so arbitrary that it could not

be the result of a reasoned decision. Reis v. Hoots, 131 N.C. App. 721, 727, 509 S.E.2d

198, 203 (1998).

“ ‘Hearsay’ is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” N.C. Gen. Stat. § 8C-1, Rule 801(c) (2015). Unless allowed by statute or

the North Carolina Rules of Evidence, hearsay evidence is not admissible in court.

N.C. Gen. Stat. § 8C-1, Rule 802 (2015).

Pursuant to the business records exception, the following items of evidence are

not excluded by the hearsay rule, even though the declarant is unavailable as a

witness:

A memorandum, report, record, or data compilation, in any

form, of acts, events, conditions, opinions, or diagnoses,

made at or near the time by, or from information

transmitted by, a person with knowledge, if kept in the

course of a regularly conducted business activity, and if it

was the regular practice of that business activity to make

the memorandum, report, record, or data compilation, all

as shown by the testimony of the custodian or other

qualified witness, unless the source of information or the

method or circumstances of preparation indicate lack of

trustworthiness.

N.C. Gen. Stat. § 8C-1, Rule 803(6) (2015). Qualifying business records are

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admissible under Rule 803(6) “when a proper foundation . . . is laid by testimony of a

witness who is familiar with the . . . records and the methods under which they were

made so as to satisfy the court that the methods, the sources of information, and the

time of preparation render such evidence trustworthy.” In re S.D.J., 192 N.C. App.

478, 482, 665 S.E.2d 818, 821 (2008) (citations and internal quotation marks omitted).

“ ‘[An] ‘[o]ther qualified witness’ has been construed to mean a witness who is familiar

with the business entries and the system under which they are made.’ ” Steelcase,

Inc. v. Lilly Co., 93 N.C. App. 697, 702, 379 S.E.2d 40, 44 (1989) (citation omitted).

“While the foundation must be laid by a person familiar with the records and the

system under which they are made, there is ‘no requirement that the records be

authenticated by the person who made them.’ ” In re S.D.J., 192 N.C. App. at 482-

83, 665 S.E.2d at 821 (citation omitted).

Generally, a “witness may not testify to a matter unless evidence is introduced

sufficient to support a finding that he has personal knowledge of the matter.” N.C.

Gen. Stat. § 8C-1, Rule 602 (2015); see also Gilreath v. N.C. Dep’t of Health and

Human Servs., 177 N.C. App. 499, 505, 629 S.E.2d 293, 296 (2006) (requiring

affidavits to be made on personal knowledge “setting forth facts admissible in

evidence”). Rule 56(e) of the North Carolina Rules of Civil Procedure requires that

affidavits supporting or opposing a summary judgment motion “be made on personal

knowledge . . . .” N.C. Gen. Stat. § 1A-1, Rule 56(e) (2015). “Knowledge obtained from

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the review of records, qualified under Rule 803(6), constitutes ‘personal knowledge’

within the meaning of Rule 56(e).” Hylton v. Koontz, 138 N.C. App. 629, 635, 532

S.E.2d 252, 256 (2000). This principle applies with equal force here. Cf. U.S. Leasing

Corp. v. Everett, Creech, Hancock, and Herzig, 88 N.C. App. 418, 423, 363 S.E.2d 665,

667 (1988) (even though a witness’s knowledge was “limited to the contents of [the]

plaintiff’s file with which he had familiarized himself, he could properly testify about

the records and their significance so long as the records themselves were admissible

under [Rule 803(6)]”).

In the instant case, while the Note and Deed of Trust were identified as

attachments, the only specific “business records” that petitioner sought to introduce

through Duck’s affidavit were documents related to respondent’s loan account. Our

review of the record reveals that the foundational requirements of Rule 803(6) were

satisfied through the submission of Duck’s affidavit, which provided that petitioner’s

financial records were made and kept in the regular course of business by persons

having knowledge of the information set forth at or near the time of the acts, events,

or conditions recorded. Furthermore, Duck—an “authorized signor” for petitioner

who was permitted “to make the representations contained” in the affidavit—

specifically stated that her averments were “based upon [her] review of [petitioner’s]

records relating to [respondent’s] loan and from [her] own personal knowledge of how

they are kept and maintained.” As a result, Duck was a qualified witness under Rule

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803(6) and petitioner’s records regarding respondent’s default on her loan account

were properly introduced through Duck’s affidavit.

Respondent also briefly argues that the Note and Deed of Trust are not

“business records” and were not properly authenticated by Duck’s affidavit. Even

assuming respondent raised this objection below—see Weil v. Herring, 207 N.C. 6, 10,

175 S.E. 836, 838 (1934) (holding that where a theory argued on appeal was not raised

before the trial court, “the law does not permit parties to swap horses between courts

in order to get a better mount [in the appellate court]”)—we will not address it.

Except for a passing reference to Rule 803(6), respondent fails to cite any legal

authority in support of her contentions. Since “[i]t is not the duty of this Court to

supplement an appellant’s brief with legal authority or arguments not contained

therein[,]” respondent has abandoned her arguments as to admission of the Note and

the Deed of Trust. Goodson v. P.H. Glatfelter Co., 171 N.C. App. 596, 606, 615 S.E.2d

350, 358 (2005); N.C.R. App. P. 28(b)(6) (2014) (“Issues not presented in a party’s

brief, or in support of which no reason or argument is stated, will be taken as

abandoned.”).

Finally, respondent argues that certain statements contained in Duck’s

affidavit constituted inadmissible hearsay. For example, respondent takes issue with

Duck’s statement that petitioner “is the holder of the loan.” We reject respondent’s

argument for two reasons.

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We first note that in a foreclosure hearing before the clerk of court, “the clerk

shall consider the evidence of the parties and may consider . . . affidavits and certified

copies of documents. N.C. Gen. Stat. § 45-21.16(d). In addition, this Court has held

that affidavits may be used as competent evidence to establish the required statutory

elements in de novo foreclosure hearings. In re Foreclosure of Brown, 156 N.C. App.

477, 486-87, 577 S.E.2d 398, 404 (2003). The borrower in Brown contended that

affidavits—which testified as to the existence of the statutory elements for a section

45-21.16 foreclosure—from the California-based lender’s assistant secretary were

inadmissible hearsay. Id. at 485, 577 S.E.2d at 404. After noting that “[a] power of

sale provision in a deed of trust is a means of avoiding lengthy and costly foreclosures

by action[,]” this Court held that “the ‘necessity for expeditious procedure’

substantially outweigh[ed] any concerns about the efficacy of allowing [the secretary]

to testify by affidavit, and the trial court properly admitted her affidavit into

evidence.” Id. at 486, 577 S.E.2d at 404-05 (citation omitted).

The record in the instant case reveals that Duck (and presumably petitioner)

is based in Illinois, and respondent cites no authority that would support requiring

out-of-state lenders seeking to foreclose under a power of sale to present live witness

testimony in North Carolina. We conclude, as the Brown Court did, that Duck’s

Affidavit of Indebtedness was the most certain and expeditious way to prove and

establish certain criteria required by subsection 45-21.16(d).

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Moreover, this Court has previously held that whether an entity is a “holder”

is “a legal conclusion . . . to be determined by a court of law on the basis of factual

allegations.” In re Simpson, 211 N.C. App. at 495, 711 S.E.2d at 173. However,

“ ‘[s]tatements in affidavits as to opinion, belief, or conclusions of law are of no effect

[.]’ ” Lemon v. Combs, 164 N.C. App. 615, 622, 596 S.E.2d 344, 349 (2004) (citation

omitted); In re Simpson, 211 N.C. App. at 495, 711 S.E.2d at 173 (disregarding the

affiant’s “conclusion as to the identity of the ‘owner and holder’ of the [promissory

note and deed of trust]”). Thus, even though we disregard Duck’s conclusion of law

that petitioner is the holder of the Note, we reject respondent’s argument that this,

and any other, legal conclusion Duck may have made resulted in the affidavit being

admitted in error. Accordingly, for the reasons stated above, the trial court did not

abuse its discretion in allowing Duck’s affidavit and its accompanying attachments

into evidence.

VI. Conclusion

Since an order was never entered on respondent’s motion to dismiss, she

cannot appeal from the superior court’s denial of that motion. Furthermore, the

superior court did not err in allowing RTT to represent petitioner because the firm

had no specific fiduciary duty to respondent when the de novo foreclosure hearing

was conducted, and there is no evidence that the representation was injurious to

respondent or was undertaken in bad faith. Finally, the superior court did not err in

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IN RE: CAIN

Opinion of the Court

allowing Duck’s affidavit and its attachments to be admitted into evidence. For these

reasons, the superior court properly authorized G&P to proceed with the foreclosure

sale. We therefore affirm the superior court’s order.

AFFIRMED.

Judges BRYANT and ZACHARY concur.

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