In re Foreclosure of a Lien by Parkway Unit Owners Ass'n

• Decision Date: 06 August 2013
• Docket Number: No. COA12–1380.,COA12–1380.
• Parties: In the Matter of the FORECLOSURE OF A LIEN BY PARKWAY UNIT OWNERS ASSOCIATION, INC. AGAINST KAMELIA K. SHAW, TRUSTEE UNDER the KAMELIA K. SHAW LIVING TRUST DATED APRIL 10, 2003.
• Court: North Carolina Court of Appeals

749 S.E.2d 112

In the Matter of the FORECLOSURE OF A LIEN BY PARKWAY UNIT OWNERS ASSOCIATION, INC. AGAINST KAMELIA K. SHAW, TRUSTEE UNDER the KAMELIA K. SHAW LIVING TRUST DATED APRIL 10, 2003.

No. COA12–1380.

Court of Appeals of North Carolina.

Aug. 6, 2013.

Harris & Hilton, P.A., by Nelson G. Harris, for Petitioner-appellee.

Kamelia Shaw, for Respondent-appellant.

ERVIN, Judge.

Appeal by respondent from order entered 13 December 2011 by Judge Paul C. Ridgeway in Wake County Superior Court. Heard in the Court of Appeals 24 April 2013.

Respondent Kamelia K. Shaw, Trustee of the Kamelia K. Shaw Living Trust, appeals from an order affirming an order entered by the Wake County Clerk of Superior Court denying her amended motion to set aside an order of foreclosure. In her brief, Ms. Shaw argues (1) that Petitioner Parkway Unit Owners Association (Parkway UOA) had no right to foreclose on her property given the absence of “a contractual right to foreclose contained in an executed deed or note,” (2) that Parkway UOA was statutorily prohibited from using the foreclosure process to collect an unpaid assessment, and (3) that she received insufficient notice of the foreclosure proceedings. After careful consideration of Ms. Shaw's challenges to the trial court's order in light of the record and the applicable law, we conclude that the trial court's order should be affirmed.

I. Procedural History

Parkway UOA, the homeowners' association for the MacArthur Park subdivision in Cary, was “created pursuant to the Declaration of Covenants, Conditions and Restrictions of Parkway [UOA], Inc. recorded in Book 4202, Page 687, Wake County Registry (as amended).” On 11 August 2003, Ms. Shaw purchased “Lot 20, Section III of MacArthur [P]ark Subdivision as per plat and survey thereof” “subject to the Declaration [of Covenants, Conditions and Restrictions of Parkway [UOA], Inc. recorded in Book 4202, Page 687, Wake County Registry].” As a result, Ms. Shaw was “required pursuant to the Declaration and applicable law to pay homeowners' association assessments, late fees, interest and other charges.”

In light of her failure to pay an annual assessment due on and after 1 January 2009 and other assessments which became due after that date, Parkway UOA filed a claim of lien on 18 November 2009 asserting that Ms. Shaw owed the principal sum of $355.50. On 7 May 2010, Parkway UOA filed a notice of foreclosure hearing in which it notified Ms. Shaw that it would seek the entry of an order authorizing it to foreclose on her property based upon the claim of lien. On 22 June 2010, Parkway UOA filed an affidavit detailing its efforts to serve Ms. Shaw with the notice of the foreclosure hearing. On 24 June 2010, Parkway UOA filed an amended claim of lien in which it updated the amount that it claimed that Ms. Shaw owed and set forth a new address for Ms. Shaw. On 30 June 2010, Parkway UOA filed a new notice of foreclosure hearing. On 28 July 2010, Parkway UOA filed another affidavit spelling out its attempts to serve Ms. Shaw with the notice of foreclosure hearing.

On 29 July 2010, a hearing concerning the issues raised by Parkway UOA's notice of foreclosure hearing was conducted before the Clerk. At the conclusion of the hearing, the Clerk entered an order authorizing Parkway UOA to foreclose on Ms. Shaw's property for the purpose of satisfying the amended assessment lien. On 9 September 2010, a foreclosure sale was conducted, at the conclusion of which Parkway UOA was determined to be the highest bidder. On 27 September 2010, a Trustee's Deed conveying Ms. Shaw's property to Parkway UOA was recorded in the office of the Wake County Register of Deeds. On 11 October 2010, the Clerk approved a report and accounting associated with the foreclosure sale filed by the Trustee.

Ms. Shaw did not note an appeal to the Wake County Superior Court from the Clerk's foreclosure order. On 13 October 2010, however, she filed an ex parte motion with the Clerk in which she requested that the foreclosure be set aside. After initially granting Ms. Shaw's motion, the Clerk set aside its order granting Ms. Shaw's motion on 18 October 2010. On 2 December 2010, Ms. Shaw filed a new motion seeking to have the foreclosure set aside on the grounds that she had “not resided in North Carolina for over two (2) years” and that “[n]otice was never posted at 204 Heathridge [Lane] Cary NC 27513[.]” On 4 January 2011, Ms. Shaw filed an amended motion to set aside the foreclosure in which she asserted the same grounds that she had alleged in her 2 December 2010 motion and the additional grounds (1) that she had not been served with a statement of the amount that she allegedly owed to Parkway UOA prior to the notices of foreclosure hearing; (2) that she was “entitled” to have the foreclosure set aside “pursuant to [N.C. Gen.Stat. § 1A–1,] Rule 60;” (3) that “the judgment is void,” and (4) that she should receive relief from the foreclosure “because of mistake, inadvertence or excusable neglect” on the part of Ms. Shaw.

On 20 January 2011, the Clerk conducted a hearing concerning the issues raised by Ms. Shaw's motion. After the completion of the hearing, the Clerk entered an order denying Ms. Shaw's motion on the grounds that Ms. Shaw “ha [d] not shown good cause to set aside the Foreclosure Order entered July 29, 2010[,] or the sale that ha[d] taken place thereafter.” On 28 January 2011, Ms. Shaw noted an appeal to the Wake County Superior Court from the Clerk's order denying her motion to have the foreclosure set aside.

A hearing was held on 28 November 2011 before the trial court for the purpose of addressing the issues raised by Ms. Shaw's appeal. At that proceeding, Ms. Shaw argued that Parkway UOA was not entitled to foreclose on her property based upon the lien securing the unpaid assessment unless it held a deed of trust or other instrument containing a power of sale provision, and that the foreclosure in question was barred pursuant to N.C. Gen.Stat. § 47F–3–116(a2). Ms. Shaw did not, however, make any argument before the trial court at the 28 November 2011 hearing concerning the extent, if any, to which she had received proper notice of the proposed foreclosure and, instead, specifically stated that she was not relying on a “lack of notice” argument. On 13 December 2011, the trial court entered an order upholding the Clerk's decision to deny her motion to set aside the foreclosure. Ms. Shaw noted an appeal to this Court from the trial court's order.

II. Legal Analysis

A. Violations of the Appellate Procedure Rules

“ ‘[R]ules of procedure are necessary ... in order to enable the courts properly to discharge their dut[y]’ of resolving disputes. It necessarily follows that failure of the parties to comply with the rules, and failure of the appellate courts to demand compliance therewith, may impede the administration of justice.... Compliance with the rules, therefore, is mandatory.” Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 193–94, 657 S.E.2d 361, 362–63 (2008) (quoting Pruitt v. Wood, 199 N.C. 788, 790, 156 S.E. 126, 127 (1930), and citing State v. Hart, 361 N.C. 309, 311, 644 S.E.2d 201, 202 (2007), and Viar v. N.C. Dep't of Transp., 359 N.C. 400, 401, 610 S.E.2d 360, 360(per curiam) (2005) (other citations omitted)). A careful review of the record discloses that Ms. Shaw violated the applicable provisions of the North Carolina Rules of Appellate Procedure in a number of important respects.

N.C. R.App. P. 28(b) provides, in pertinent part, that an “appellant's brief shall contain, under appropriate headings and in the form prescribed by Rule 26(g),” the following information:

(3) A concise statement of the procedural history of the case. This shall indicate the nature of the case and summarize the course of proceedings up to the taking of the appeal before the court.

(4) A statement of the grounds for appellate review. Such statement shall include citation of the statute or statutes permitting appellate review....

(5) A full and complete statement of the facts. This should be a non-argumentative summary of all material facts underlying the matter in controversy which are necessary to understand all issues presented for review, supported by references to pages in the transcript of proceedings, the record on appeal, or exhibits, as the case may be.

Although a portion of Ms. Shaw's brief is entitled “Statement of the Case,” the information contained in that section consists, in large part, of statements asserting that Parkway UOA had engaged in improper conduct, including accusations that the foreclosure stemmed from a “willful conspiracy” involving “deed theft” and that Parkway UOA had employed “fraud” and “trickery,” had exhibited “outrageous greed,” and had acted with a “depraved heart[ ].” On the other hand, Ms. Shaw's “Statement of the Case” does not set out the “procedural history of the case” as required by N.C. R.App. P. 28(b)(3). Similarly, Ms. Shaw's “Statement of the Grounds for Appellate Review” is completely devoid of any reference to the “the statute or statutes permitting appellate review” as required by N.C. R.App. P. 28(b)(4). Instead, that portion of Ms. Shaw's brief consists of a litany of Ms. Shaw's opinions concerning the “miscarriage of justice” which resulted from the foreclosure that she was seeking to overturn. Finally, Ms. Shaw's “Statement of the Facts” contains virtually no reference to any objective facts or citations to the record and consists, once again, of unsupported allegations of malfeasance on the part of Parkway UOA, including accusations that Parkway UOA used “fraud, misrepresentation, and trickery” in order “to steal [her] Warranty Deed” and engaged in a “deed theft scam.” In addition, Ms. Shaw made a completely unsupported accusation to the effect that Parkway UOA's actions “may give rise to [charges of] the criminal offense of extortion, and or racketeering[.]” As a result, Ms. Shaw has...