In re Foreclosure of Aal-Anubiaimhotepokorohamz, 123 NC App 133 (95-329) 07/02/1996

NO. COA95-329

NORTH CAROLINA COURT OF APPEALS

Filed: 2 July 1996

IN THE MATTER OF THE FORECLOSURE OF LAND COVERED BY A CERTAIN DEED OF TRUST GIVEN BY ODECHI BOAZ M. AAL-ANUBIAIMHOTEPOKOROHAMZ and wife NGOZI AAL-ANUBIAIMHOTEPOKOROHAMZ WHEREIN RONALD K. CAMPBELL WAS NAMED AS TRUSTEE AS RECORDED IN BOOK 4735, PAGE 18, WAKE COUNTY REGISTRY

     Appeal by defendants from order entered 26 October 1994 by Judge Hight in Wake County Superior Court. Heard in the Court of Appeals 10 January 1996.

    Plaintiffs William A. Smith and Kay C. Smith entered into a lease agreement with Orient U.S. Leasing Corporation providing for the lease of photo processing equipment 24 June 1989. The financing for this agreement was obtained from Orix Commercial Credit Corp. Pursuant to the terms of the lease agreement, the plaintiffs as lessees were prohibited from assigning the lease, or the equipment referenced therein, without the express written consent of the lessor, Orient U.S. Leasing Corporation.

    Thereafter, the plaintiffs attempted to assign the photo processing equipment to the defendants, the Aal-Anubiaimhotepokorohamzs. Under the terms of the assignment agreement, the defendants as assignees, were to attempt to secure written permission for the assignment, and when such permission was obtained, the plaintiffs were to be released from any obligations under the master lease.

    To secure the payments required pursuant to the attempted assignment, the defendants executed a promissory note and deed of trust in favor of the plaintiffs. Under the terms of the promissory note, payment was to be due and payable as agreed in the assignment agreement and was not to exceed an amount of fifty thousand three hundred and twenty-four dollars ($50,324.00). The deed of trust securing the debt, evidenced by the promissory note, was executed and filed in the office of the Wake County Register of Deeds. Defendants attempted to obtain an assignment of the photo processing equipment, but were informed that the assignment would not be approved. The defendants made four payments to the plaintiffs and then ceased making payments in April of 1991. By the express written terms of the promissory note and the deed of trust, such nonpayment constituted a default. The plaintiffs notified the defendants of the default and accelerated the debt.

    After a hearing, the Clerk of Superior Court of Wake County authorized the Substitute Trustee to proceed with foreclosure of the deed of trust. The defendants appealed from this order of foreclosure to the Superior Court. At the close of the evidence and testimony in Superior Court, Judge Hight ordered that the Substitute Trustee proceed with the foreclosure of the deed of trust. Defendants appeal.