Durham Ass'n v. Rock
Decision Date | 21 February 2023 |
Docket Number | COA20-405-2 |
Parties | IN THE MATTER OF THE FORECLOSURE OF A LIEN BY Executive Office Park of Durham Association, Inc., Petitioner, v. MARTIN E. ROCK a/k/a MARTIN A. ROCK, Respondent. |
Court | North Carolina Court of Appeals |
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Appeal by respondent from order entered 4 March 2019 by Judge John M. Dunlow in Durham County No. 18 SP 1035 Superior Court. This case was originally heard in the Court of Appeals 27 April 2021. See Foreclosure of a Lien by Exec. Off. Park of Durham Ass'n v. Rock, 277 N.C.App. 444 2021-NCCOA-211, 861 S.E.2d 353 (2021). Upon remand from the Supreme Court of North Carolina.
Jordan Price Wall Gray Jones & Carlton, PLLC, by J. Matthew Waters and Hope Derby Carmichael, for petitioner-appellee.
Mark Hayes for respondent-appellant.
The Supreme Court of North Carolina reviewed and disagreed with this Court's holding Executive Office Park of Durham Association, Inc. ("Petitioner") did not possess the right to the power of sale foreclosure. See In re Foreclosure of a Lien by Exec. Office Park of Durham Ass'n v. Rock, 382 N.C. 360, 365, 2022-NCSC-106 ¶ 19, 879 S.E.2d 169, 173 (2022) Upon remand to this Court, we address Martin Rock's ("Respondent") argument he was not in default. We vacate and remand.
The facts and procedural history underlying this case are set forth in detail in this Court's prior opinion, Foreclosure of a Lien by Exec. Off Park of Durham Ass'n, 277 N.C.App. at 445-46, 2021-NCCOA-211, ¶ 2-9, 861 S.E.2d at 354. The pertinent facts are:
Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. § 7A-27(b)(1) (2021).
Respondent argues he was not in default following Petitioner's acceptance of his redemption payment of more than the balance owed.
This Court reviews the trial court's order authorizing an association's nonjudicial power of sale foreclosure de novo. In re Foreclosure of Clayton, 254 N.C.App. 661, 667, 802 S.E.2d 920, 925 (2017) (citation omitted).
Before the trial court, Respondent presented a file for a prior foreclosure action, which had been dismissed. This prior non-judicial foreclosure action had file number 15 SP 815, of which the trial court took judicial notice during the hearing. The clerk of court had dismissed the action filed in 15 SP 815 because: "[t]he Petitioner has failed to show that the Executive Office Park Association of Durham Inc. has the power to impose or collect sums of money denoted specifically as 'fines' or dues from it's association members."
Respondent asserts the subsequent foreclosure on 22 October 2018 was based upon alleged defaults, which were included in the prior dismissed foreclosure action.
Respondent argues Petitioner is barred from proceeding again with a non-judicial foreclosure based upon the same alleged defaults, included in the prior unsuccessful action and dismissal. See In re...
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