An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA04-1364


Filed: 2 August 2005

                                Gaston County
            v.                    No. 03 CVS 2756


    Appeal by defendants Randy Lee Hammitt and Sandra Marie Hammitt from an order entered 20 January 2004 by Judge Yvonne Mims Evans in Gaston County Superior Court. Heard in the Court of Appeals 18 July 2005.

    No brief for plaintiff-appellee.
    Randy Lee Hammitt and Sandra Marie Hammitt, pro se defendant-appellants.

    MARTIN, Chief Judge.

     On 4 August 2003, plaintiff Citicorp Trust Bank, FSB (“Citicorp”) filed a foreclosure action against the defendants. Citicorp had acquired a note and deed of trust from defendants Mark and Linda R. Vaughan. Defendants Randy Lee and Sandra Marie Hammitt had entered into a contract with the Vaughans to purchase the property set forth in the deed of trust. Citicorp sought a declaratory judgment stating that it had an enforceable first deed of trust lien on the property and was entitled to foreclose, judicial sale, and monetary relief.    On 31 October 2003, Randy Lee Hammitt and Sandra Marie Hammitt (“defendants Hammitt”) moved for summary judgment. Appellants argued that: (1) Citicorp could not maintain the action because it was an unregistered foreign corporation; (2) that the action was barred by res judicata; (3) Citicorp was not a holder in due course with legal title; and (4) there were ethical violations in Kellam & Pettit, P.A., acting as both advocate and a trustee. On 20 January 2004, the motion was denied.
    On 6 August 2004, defendants Hammitt petitioned this Court for writ of certiorari. Defendants Hammitt claimed in their petition that they did not discover that a written order was entered denying their motion for summary judgment until 4 August 2004. They argued that the denial of their motion for summary judgment affected a substantial right and asked this Court to review the case and dismiss the action in Superior Court for lack of subject matter jurisdiction. On 26 August 2004, the petition was denied.
     On 27 August 2004, defendants Hammitt entered notice of appeal from the order denying their motion for summary judgment. The record on appeal was filed on 13 October 2004 and docketed on 8 November 2004.
    On appeal, defendants Hammit essentially renew the arguments made in their motion for summary judgment. However, their appeal must be dismissed for their failure to file timely notice of appeal from the order denying their motion. Though defendants Hammitt asserted in their petition for writ of certiorari that they did not learn that a written order was entered until 4 August 2004, we notethat the certificate of service attached to the order states that it was served on them by mail on 20 January 2004. To the extent that we were inclined to treat their appeal as a petition for writ of certiorari, we must deny the petition because another panel of this Court has already denied a previous petition for certiorari based upon the same grounds. See In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 379 S.E.2d 30 (1989)(When a panel of this Court has decided the same issue in a different case, subsequent panels are bound to the decision until it is overturned by the higher court ). Accordingly, the appeal is dismissed.
    Appeal dismissed.
    Judges HUNTER and STEELMAN concur.
    Report per Rule 30(e).

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