# In re Foreclosure of Real Property Under Deed of Trust from Young > Court of Appeals of North Carolina · June 4, 2013 · 227 N.C. App. 502 URL: https://www.frixlaw.com/law-library/cases/8901488 ## Case - **Full name:** IN RE FORECLOSURE OF REAL PROPERTY UNDER DEED OF TRUST FROM TONY RAY YOUNG JR. AND LISA F. YOUNG, DATED SEPTEMBER 28, 2007 AND RECORDED ON OCTOBER 1, 2007 IN BOOK 22878 AT PAGE 847 - **Court:** Court of Appeals of North Carolina - **Decided:** June 4, 2013 - **Citations:** 227 N.C. App. 502; 744 S.E.2d 476; 2013 N.C. App. LEXIS 603; 2013 WL 2396738 - **Precedential status:** Published - **Opinion:** Dissent by Hunterrobert - **Judges:** Bryant, Hunter, McCullough, Robert - **Cited by:** 10 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8901488 ## How later opinions describe it (automated extraction) - explaining that the clerk “is limited to making the six findings of fact specified under subsection (d) of [Section 45- 21.16]”: (1) a valid debt held by the foreclosing party; (2) default; (3) the trustee’s right to foreclose under the instrument; (4) notice to those entitled… - holding that if the petitioner’s action for foreclosure by power of sale was now barred, “ [petitioner's remedy would then be limited to judicial foreclosure procedures pursuant to N.C. Gen. Stat. § 1-339.1 et seq., rather than the summary proceedings provided under N.C. Gen. … - noting that in an action for foreclosure by power of sale, “[t]he clerk’s findings are appealable to the superior court for a hearing de novo; however, in a section 45-21.16 foreclosure [by power of sale] proceeding, the superior court’s authority is similarly limited to deter… ## Opinion text HUNTER, JR., Robert N., Judge, dissenting. Before a court can proceed to the merits of a case the court may (and on occasions where the record on appeal suggests the trial court lacked jurisdiction, the court must), independently examine its jurisdiction. In an appeal, the appellant bears the burden of proving the appeals court has jurisdiction before the court can consider its appeal. Johnson v. Lucas, 168 N.C. App. 515, 518 , 608 S.E.2d 336, 338 (2005). This duty includes an obligation for the appellant not only to cite to the proper statutory authority to establish jurisdiction, but also to provide the court with “copies of all other papers filed and statements of all other proceedings had in the trial court which are necessary to an understanding of all issues presented on appeal.” N.C. R. App. P. 9(a)(l)(j). In my view, because petitioner fails to provide this Court with copies of all other papers filed and statements of the proceedings in Mecklenburg County Special Proceeding 09 SP 7638, the prior summary foreclosure proceeding on this property, petitioner has failed to fulfill its duty. Because I do not believe the Court has an adequate record to review all of the issues presented in this appeal, both as to jurisdiction and on the merits, I must respectfully dissent from the majority’s opinion. This is an appeal of a summary foreclosure under a power of sale. Such cases are properly characterized as “special proceedings.” See Phil Mechanic Const. Co. v. Haywood, 72 N.C. App. 318, 321 , 325 S.E.2d 1, 2-3 (1985). The Rules of Civil Procedure apply to special proceedings, just as they do to civil actions, unless the governing statute sets out different procedures. Charns v. Brown, 129 N.C. App. 635, 638 , 502 S.E.2d 7, 9 (1998). *509 Foreclosures conducted under the summary procedures provided for in N.C. Gen. Stat. § 45-21.1 et seq. must be strictly examined. See In re Foreclosure of Deed of Trust by Goforth Props., Inc., 334 N.C. 369, 375 , 432 S.E.2d 855, 859 (1993) (“[T]his Court [has] also reiterated that foreclosure under a power of sale is not favored in the law, and its exercise will be watched with jealousy.” (quotation marks and citation omitted))- The practical reason to examine foreclosures strictly is to ensure that the chains of title produced by foreclosures are clear and sufficient to convey ownership to future titleholders. Put differently, if the summary foreclosure is defective, then future owners and mortgage lenders cannot rely on the titles resulting from such proceedings. The Record on Appeal documents that petitioner filed a Special Proceeding, captioned 11 SP 8765, on 15 November 2011. This proceeding was subsequently dismissed by the Assistant Clerk of Court without prejudice by Order of Dismissal filed 12 April 2012 with the following notation: “the foregoing case heard 3/30/12 and the court finding that an appeal is pending in 09-SP-7638 on the same matter such that until 09-SP-7638 is disposed of then it is improper to have a second action pending on the same matter.” We lack a sufficient record to determine whether 09 SP 7638 is still pending. However, assuming that matter was still pending at the time 11 SP 8765 was filed, the Assistant Clerk was correct in her ruling. Our Supreme Court has held that if there is a prior special proceeding pending between the same parties on substantially the same subject matter, and all the material questions and rights can be determined therein, the second special proceeding should be dismissed. Seawell v. Purvis, 232 N.C. 194, 196 , 59 S.E.2d 572, 573 (1950) (citing Dwiggins v. Parkway Bus. Co., 230 N.C. 234 , 52 S.E.2d 892 (1949)). More modem cases from this Court have followed a similar line of reasoning in similar circumstances. See, e.g., Whitmire v. Cooper, 153 N.C. App. 730, 734 , 570 S.E.2d 908, 911 (2002) (“ ‘[I]f... two suits are in rem, or quasi in rem, so that the court, or its officer, has possession or must have control of the property which is the subject of the litigation in order to proceed with the cause and grant the relief sought, the jurisdiction of the one court must yield to that of the other.’ ” (quoting Princess Lida v. Thompson, 305 U.S. 456, 466 (1939)); Lisk v. Lisk, No. COA07-661, 2008 WL 2967092 at *2 (N.C. Ct. App. 2008) (unpublished) (“The Whitmire decision... establishes that, if two courts are competing for jurisdiction in an in rem action, the second court must yield to the jurisdiction of the first court.”). Because the Assistant Clerk’s order was based upon a dismissal of “prior action pending,” the Superior Court reviewing this order should have examined the question of jurisdiction before entering any decision on the merits. *510 At the hearing before the Superior Court in 11 SP 8765, counsel for petitioner claimed that petitioner had taken a “voluntary dismissal” in 09 SP 7638. However, this explanation mischaracterizes the legal consequences of dismissing a special proceeding after appeal from a Clerk’s order. As the majority notes, counsel for petitioner explained at the hearing: In other words ... in the ‘09 case, the clerk entered an order dismissing the foreclosure with no lawyer for Wells Fargo present. There was the trustee there, but we were not there. We got hired and we appealed it, and before having the appeal hearing heard ... we instructed the trustee to take a voluntary dismissal without prejudice so this modification thing could play out and we could see if we could get something done, which as I said ultimately did not happen. (Emphasis added). Thus, it appears as though petitioner sought to “voluntarily dismiss” 09 SP 7638 during the pendency of petitioner’s appeal to the superior court only after the Clerk had denied relief in that proceeding. This portion of the transcript alone does not provide a documentary basis to know that the prior proceeding was dismissed at the time the Superior Court entered its order. Furthermore, “voluntary dismissals” are not part of the procedures allowed in special proceedings after the Clerk has reached a decision. Such a “voluntary dismissal” is properly characterized as a withdrawal of petitioner’s appeal from 09 SP 7638. Our Supreme Court has held that a party’s withdrawal of its appeal from the decision of a Clerk in a special proceeding makes that decision a “final adjudication.” See Ramsey v. So. Ry. Co., 253 N.C. 230 , 116 S.E.2d 490 (1960) (per curiam) (“When the court, in its discretion, permitted the appeal to be withdrawn, the clerk’s judgment became the final adjudication.”). Consequently, petitioner’s withdrawal of its appeal from the 2009 proceeding rendered the Clerk’s dismissal of the 2009 proceeding final. This is problematic to the jurisdiction of our Court in the case sub judice in light of the doctrine of res judicata. Our Court has held that when a mortgagee or trustee elects to proceed under a power of sale, decisions of the Clerk not appealed are res judicata and cannot be relitigated in another action. See Phil Mechanic Const. Co., 72 N.C. App. at 322 , 325 S.E.2d at 3 (“Since plaintiffs did not perfect an appeal of the order of the Clerk of Superior Court, the clerk’s order is binding and plaintiffs are estopped from arguing those same issues in this case.”). *511 Because petitioner has failed to provide us with a sufficient record to determine whether the Superior Court possessed jurisdiction in this matter, I believe its appeal should be dismissed. See Wiggins v. Pyramid Life Ins. Co., 3 N.C. App. 476, 478 , 165 S.E.2d 54, 56 (1969) (“[T]he jurisdiction of the Court of Appeals is derivative; therefore, if the court from which the appeal is taken had no jurisdiction, the Court of Appeals cannot acquire jurisdiction by appeal.”). Furthermore, “ ‘[i]t is a universal rule of law that parties cannot, by consent, give a court, as such, jurisdiction over subject matter of which it would otherwise not have jurisdiction. Jurisdiction in this sense cannot be obtained by consent of the parties, waiver, or estoppel.’ ” Pulley v. Pulley, 255 N.C. 423, 429 , 121 S.E.2d 876, 880 (1961) (quoting Hart v. Thomasville Motors, Inc., 244 N.C. 84, 88 , 92 S.E.2d 673, 676 (1956)). I understand the majority’s reticence to dismiss an appeal from an order it determines is in error on other grounds. However, “a default precluding appellate review on the merits necessarily arises when the appealing party fails to complete all of the steps necessary to vest jurisdiction in the appellate court. It is axiomatic that courts of law must have their power properly invoked by an interested party.” Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 197 , 657 S.E.2d 361, 364 (2008). The remedy suggested by the majority is beyond the competency of a trial court. Resolving differences between two conflicting special proceedings must be done by an appellate court possessing jurisdiction. I do not believe a superior court judge can use an appeal of a special proceeding to resolve a potential jurisdictional dispute between two conflicting special proceedings, one of which has not been appealed to him. If he attempted such an effort it would muddle, not clarify, the question of whether title has passed to any subsequent buyer at a foreclosure sale. Furthermore, petitioner is not without a remedy in this matter, but must proceed to judicial foreclosure under N.C. Gen. Stat. § 1-339.1 et seq. rather than use the summary proceedings provided in N.C. Gen. Stat. § 45-21.1 et seq. At that time, a properly pled civil action could resolve this question. Accordingly, I would dismiss petitioner’s appeal, and disagree with the majority’s decision to vacate and remand this case. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8901488. Public record. Not legal advice.