American First Federal, Inc. v. Rock Hill African Methodist Episcopal Zion Church, 110519 NCCA, COA18-1225
|Opinion Judge:||BERGER, JUDGE|
|Party Name:||AMERICAN FIRST FEDERAL, INC., successor in interest to NEWDOMINION BANK, Appellee-Plaintiff, v. ROCK HILL AFRICAN METHODIST EPISCOPAL ZION CHURCH; TRUSTEES OF ROCK HILL AFRICAN METHODIST EPISCOPAL ZION CHURCH; BOBBY R. SMITH, solely in his capacity as Trustee of Rock Hill African Methodist Episcopal Zion Church; ERNEST E. ROSS, solely in his...|
|Attorney:||Roberson Haworth & Reese, PLLC, by Alan B. Powell and Christopher C. Finan, for plaintiff-appellee. Ferikes & Bleynat, PLLC, by H. Gregory Johnson and Jane A. Dearwester, for defendant-appellant.|
|Judge Panel:||Judges DIETZ and HAMPSON concur.|
|Case Date:||November 05, 2019|
|Court:||Court of Appeals of North Carolina|
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Heard in the Court of Appeals 5 June 2019.
Appeal by defendants from order entered 18 May 2018 by Judge Kevin M. Bridges in Cabarrus County No. 16 CVS 3057 Superior Court.
Roberson Haworth & Reese, PLLC, by Alan B. Powell and Christopher C. Finan, for plaintiff-appellee.
Ferikes & Bleynat, PLLC, by H. Gregory Johnson and Jane A. Dearwester, for defendant-appellant.
Rock Hill African Methodist Episcopal Zion Church, et al. ("Defendants") appeal the trial court's order which granted American First Federal, Inc.'s ("Plaintiff") Rule 12(c) motion for judgment on the pleadings. Because the trial court did not err, we affirm.
Factual and Procedural Background
Defendants held title to real property located in Concord, North Carolina (the "Property"). The deed to the Property is recorded in Book 49, Page 481 of the Cabarrus County Public Registry and describes the Property as follows: ADJOINING THE LANDS OF VICTOR CALDWELL AND OTHERS; BEGINNING AT A PINE TREE NEAR SAID CHURCH, RUNNING THENCE N. 10 E. 32 POLES TO A STONE ON VICTOR CALDWELL'S LINE; THENCE WITH SAID LINE N. 64 ½ W. 44 POLES TO A STONE AT SALISBURY AND CHARLOTTE ROADS; THENCE WITH SAID LINES S. 22 ½ W. 30 POLES TO A STONE; THENCE S. 65 E. 49 POLES TO THE BEGINNING, SUPPOSED TO CONTAIN NINE ACRES; ONE ACRE OF SAID TRACT HAS PREVIOUSLY BEEN SOLD TO THE COUNTY SCHOOL, LEAVING 8 ACRES MORE OR LESS.
THE ONE ACRE TRACT SOLD TO THE COUNTY SCHOOL BOARD IS DESCRIBED AS FOLLOWS:
ADJOINING THE LAND OF VICTOR CALDWELL AND SAID CHURCH TRACT OF LAND BEING AND LYING ON SOUTH EAST SIDE OF COUNTY ROAD FROM SALISBURY TO CHARLOTTE AND WHERE BOUNDED AS FOLLOWS:
BEGINNING AT A STONE IN COUNTY ROAD AND RUNS S. 64 ½ E. 12 POLES AND 15 LINKS TO A STONE IN COUNTY ROAD; THENCE S. 22 ½ W. 12 POLES AND 15 LINKS TO A STONE; THENCE N. 64 ½ W. 12 POLES AND 15 LINKS TO A STONE IN COUNTY ROAD; THENCE N. 22 ½ E. 12 POLES AND 15 LINKS TO THE BEGINNING, CONTAINING ONE ACRE.
On February 8, 2008, Defendants borrowed $1, 425, 000.00 from NewDominion Bank ("NewDominion") pursuant to the terms and conditions of a promissory note (the "Note"). Defendants executed a deed of trust securing the Note to the Property (the "Deed of Trust"). The Deed of Trust contained a power of sale clause giving NewDominion the right to initiate power of sale, non-judicial foreclosure proceedings in the event of default.
In 2012, Defendants defaulted on their obligation under the Note. NewDominion initiated power of sale foreclosure proceedings and obtained an order authorizing sale of the Property from the Cabarrus County Clerk of Superior Court (the "Clerk"). However, NewDominion and Defendants entered into a forbearance agreement and modified the terms of the original Deed of Trust. In exchange for termination of foreclosure proceedings, Defendants agreed to waive certain defenses to the enforcement of the Deed of Trust in any future action. Defendants and NewDominion subsequently amended the forbearance agreement to include a provision that the terms of the agreement were to be binding on any successors and assigns. Shortly thereafter, NewDominion assigned the Note and Deed of Trust to Plaintiff.
Following the assignment of the Note and Deed of Trust to Plaintiff, Defendants defaulted a second time. Plaintiff sought to foreclose upon the Property and filed a new action with the...
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