Gore v. Hill
| Decision Date | 16 June 1981 |
| Docket Number | No. 8013SC1073,8013SC1073 |
| Court | North Carolina Court of Appeals |
| Parties | McRoy GORE, Jr. v. James E. HILL, Trustee, United Carolina Bank (Waccamaw Bank & Trust Company); Roland Lennon Gore and wife, Gwen Gore, and J. Roland Gore and wife, Velma J. Gore. |
McLean, Stacy, Henry & McLean by Everett L. Henry, Lumberton, for plaintiff-appellant.
C. Franklin Stanley, Jr., Tabor City, for defendants-appellees.
The sole questions presented by this appeal is whether the trial court improperly denied plaintiff's motion for partial summary judgment and allowed defendants' motion for summary judgment. Plaintiff's only argument is that the facts as to liability were undisputed: the foreclosure sale had been postponed in a manner contrary to the provisions of G.S. § 45-21.21 and that the sale was, therefore, void.
Upon a motion for summary judgment, the duty of the trial court is not to resolve issues of fact but to determine whether there is a genuine issue of material fact which should be tried by the jury. Lambert v. Duke Power Co., 32 N.C.App. 169, 231 S.E.2d 31, disc. review denied, 292 N.C. 265, 233 S.E.2d 392 (1977). The moving party must then make it clear that he is entitled to judgment as a matter of law. Id. The test for summary judgment is, therefore, twofold: Is there a genuine issue of material fact and is the moving party entitled to judgment as a matter of law? See G.S. § 1A-1, Rule 56(c).
The material facts in the case before us are not in dispute. Having determined this, as he did in his order, the trial judge then had to decide which party was entitled to judgment as a matter of law. We hold that he correctly concluded that summary judgment in favor of defendants was proper.
The power of sale by which defendant Hill, as substitute trustee, foreclosed the deed of trust was contained in the deed of trust itself which was executed by the mortgagors, the defendants Gore. The due process rights of the defendants Gore, to the extent that they may not have been afforded in the deed of trust, are set forth in G.S. § 45-21.16 et seq. Realty and Mortgage Co. v. Bank, 34 N.C.App. 481, 238 S.E.2d 622 (1977). The procedural requirements of notice and hearing are designed to assure mortgagors that property which they have used to secure an indebtedness will not be foreclosed without due process of law. One of the procedures which is designed for the protection of the mortgagor is the requirement, contained in G.S. § 45-21.21, that the trustee's postponement of the foreclosure...
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...is twofold: Is there a genuine issue of material fact, and, if not, is any party entitled to judgment as a matter of law? Gore v. Hill, 52 N.C.App. 620, 279 S.E.2d 102, disc. rev. denied, 303 N.C. 710 (1981). Under the first part of the test, an issue is genuine if it can be maintained by s......
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...any material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), N.C. Rules of Civ.Proc.; Gore v. Hill, 52 N.C.App. 620, 279 S.E.2d 102, disc. rev. denied, 303 N.C. 710 The first issue raised by plaintiff is whether the contract at issue falls within the scope ......
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...carry a motion for summary judgment the moving party must establish that no genuine issue of material fact exists. Gore v. Hill, 52 N.C.App. 620, 621-22, 279 S.E.2d 102, 104, disc. review denied, 303 N.C. 710 (1981). A party may do so by " 'proving that an essential element of the opposing ......
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