An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA05_178

NORTH CAROLINA COURT OF APPEALS

Filed: 7 March 2006

IN RE: FORECLOSURE OF DEED OF
TRUST EXECUTED BY PATRICK HUNT        Cleveland County
AND RUTH DIXON HUNT, TO JAMES            No. 03 SP 408
T. LEE, TRUSTEE, and EMMCO, THE
MORTGAGE SERVICE STATION, INC.,
BENEFICIARY, DATED AUGUST 5, 1998
IN THE ORIGINAL PRINCIPAL AMOUNT OF
$45,600.00 RECORDED IN BOOK 1228,
AT PAGE 2153 OF THE CLEVELAND COUNTY,
NORTH CAROLINA, PUBLIC REGISTRY.

RECORD OWNER: MARTINA ELIZABETH CLARK
(by virtue of Deed recorded in Book
1302, at Page 935 of aforesaid Registry).
Liable on Note: Patrick Hunt and Ruth
Dixon Hunt.

BY: Robert L. Lindsey, Jr.,
Substitute Trustee.

    Appeal by record owner from order entered 14 June 2004 by Judge W. Robert Bell in Cleveland County Superior Court. Heard in the Court of Appeals 1 November 2005.

    Martina E. Clark, pro se, appellant.

    John B. Whitley for MorEquity, Inc.; and Robert L. Lindsey, Jr., Substitute Trustee, pro se, appellees.

    GEER, Judge.

    This appeal arises out of a mortgage foreclosure sale that took place in Cleveland County in November 2003. The record owner of the real property, Martina Elizabeth Clark, appeals from an order entered 14 June 2004 by the Cleveland County superior court. The 14 June 2004 order (1) dismissed Clark's appeal from two ordersof the Cleveland County clerk of court entered on 1 October 2003 and 17 December 2003 and (2) affirmed a third order entered by the clerk of court on 11 March 2004. We hold that the superior court properly dismissed Clark's appeal from the 1 October 2003 order as untimely. Because the clerk of court did not have jurisdiction to enter the 17 December 2003 order, we affirm the superior court's dismissal of Clark's appeal of that order. Finally, we agree with the superior court's decision to affirm the 11 March 2004 order denying Clark's motion under Rule 60 of the Rules of Civil Procedure.

Facts

    In 2001, Patrick and Ruth Hunt sold their house at 511 Monroe Street, Shelby, North Carolina by quitclaim deed to Martina Elizabeth Clark. At the time of sale, the house was encumbered by a mortgage held by MorEquity, Inc. At some point after the house was sold to Clark, payments ceased to be made on the mortgage, and, in August 2003, MorEquity initiated a foreclosure proceeding pursuant to the "power of sale" clause in its deed of trust.
    The foreclosure hearing was initially scheduled for 16 September 2003 before the clerk of court. On the date of hearing, the Hunts were not present, but Clark appeared and requested a continuance. The clerk of court granted the request and rescheduled the hearing for 1 October 2003. On 1 October 2003, neither Clark nor the Hunts appeared. On the same date, the clerk of court entered an order ("the October order"), finding both a valid debt and a default on the note and authorizing the trustee toconduct a sale of the property pursuant to Article 2A of Chapter 45 of the General Statutes.
    MorEquity scheduled the foreclosure sale for 5 November 2003, with notice of the sale being mailed to Clark and the Hunts. On 4 November 2003, the day before the scheduled foreclosure sale, Clark filed a motion with the clerk of court seeking a preliminary injunction to prevent the sale. Despite this motion, the foreclosure sale took place as scheduled on 5 November 2003. At the sale, MorEquity purchased the property. The clerk confirmed the sale on 17 November 2003.
    On the same day as the confirmation of the sale, Clark filed another motion asking the clerk of court to vacate and set aside the sale. In its response to this motion, MorEquity argued that the clerk of court lacked subject matter jurisdiction to rule on Clark's 4 November and 17 November motions because "the Superior Court has exclusive jurisdiction to hear appeals from foreclosure orders and actions to review foreclosure sales."
    On 17 December 2003, the clerk of court entered an order ("the December order") denying Clark's motions of 4 November and 17 November 2003. The clerk concluded "that all grounds and objections raised by Ms. Clark are insufficient to set aside, upset or otherwise disturb this foreclosure proceeding including the Order permitting foreclosure sale, the sale and its confirmation."
    On 29 December 2003, Clark filed with the clerk of court a motion pursuant to N.C.R. Civ. P. 60 to "Null and Void October 1st Order of Sale and December 17th Order of Denial." Clark filed anamended motion on 2 January 2004. The clerk denied Clark's motion in an order entered 11 March 2004 ("the March order"). The clerk concluded that "[a]ll grounds and objections raised by and evidence presented by Clark are insufficient to set aside, upset or otherwise disturb this foreclosure proceeding, including the Order permitting foreclosure sale, the sale, and its confirmation, or the Order entered herein on December 17, 2003, following a comprehensive hearing and review."
    On 18 March 2004, Clark appealed the October, December, and March orders to the Cleveland County superior court. In an order entered 14 June 2004, the superior court ruled that Clark's appeal from the October and December orders was untimely. With respect to the March order, the court concluded that the clerk did not abuse her discretion or commit error in denying Clark's Rule 60 motion. The court then ordered the appeal dismissed and ruled that "this foreclosure proceeding, including the sale to MorEquity, Inc., and its confirmation, are left undisturbed." Clark timely appealed the 14 June 2004 order to this Court.
Discussion

    We agree with the superior court that Clark's appeal of the clerk of court's October order was untimely. N.C. Gen. Stat. § 45_21.16 (2005) specifies the procedure governing a hearing before the clerk of court for authorization of a mortgage foreclosure sale. The statute specifies that the clerk of court's ruling following such a hearing "may be appealed to the judge of the district or superior court having jurisdiction at any time within10 days after said act." N.C. Gen. Stat. § 45_21.16(d1). Under this provision, Clark was required to appeal the clerk of court's 1 October 2003 order authorizing the foreclosure sale within 10 days. Clark's appeal from the October order on 18 March 2004 was untimely, and the superior court, therefore, properly dismissed that appeal.
    Although we agree that the superior court properly declined to review the merits of the clerk of court's December order, we do so on a different basis than that relied upon by the superior court. We hold that the clerk of court did not have jurisdiction to hear the motions that were decided in that order.
    The first motion sought an injunction of the foreclosure sale from the clerk of court. N.C. Gen. Stat. § 45_21.34 (2005), however, provides:
            Any owner of real estate, or other person, firm or corporation having a legal or equitable interest therein, may apply to a judge of the superior court, prior to the time that the rights of the parties to the sale or resale becoming fixed pursuant to G.S. 45_21.29A to enjoin such sale, upon the ground that the amount bid or price offered therefor is inadequate and inequitable and will result in irreparable damage to the owner or other interested person, or upon any other legal or equitable ground which the court may deem sufficient . . . .

(Emphasis added.) Under this statute, only a superior court judge could grant the relief sought by Clark. Since the clerk of court lacked jurisdiction over Clark's motion, the motion should have been dismissed.    In any event, the foreclosure sale had already taken place and the sale been confirmed by the date Clark's motion was heard. The motion was, therefore, by that time, moot. See Bechtel v. Cent. Bank & Trust Co., 202 N.C. 855, 856, 164 S.E. 338, 338 (1932) (per curiam) ("As the [foreclosure] sale which the plaintiff seeks to enjoin has already taken place, there is nothing now to restrain, and the action was properly dismissed. . . . It is not worth while to moot an academic question.").
    The clerk of court also lacked jurisdiction to hear Clark's motion to vacate and set aside the foreclosure sale, filed 17 November 2003. A clerk's confirmation of a foreclosure sale may be challenged by an independent action to set aside the sale. Swindell v. Overton, 310 N.C. 707, 712, 314 S.E.2d 512, 516-17 (1984). Upon a showing of material irregularities in the sale and inadequacy of the purchase price, a court may make "'a decision in equity to set the sale aside.'" Beneficial Mortgage Co. of N.C. v. Peterson, 163 N.C. App. 73, 80, 592 S.E.2d 724, 728 (2004) (emphasis added) (quoting Swindell, 310 N.C. at 713, 314 S.E.2d at 516).
    As our Supreme Court has stressed, however, "[t]he clerk of the superior court has no common law or equitable jurisdiction. The clerk is a court of very limited jurisdiction _ having only such jurisdiction as is given by statute." Pruden v. Keemer, 262 N.C. 212, 216, 136 S.E.2d 604, 607 (1964) (internal quotation marks and citations omitted). See also In re Estate of Smith, 200 N.C. 272, 274, 156 S.E. 494, 495 (1931) ("The clerk of the SuperiorCourt is not given the jurisdiction of a court of equity. He is not vested with power affirmatively to administer an equity except where it is specially conferred by statute."). N.C. Gen. Stat. § 1-301.2(g)(2) (2005) provides, with respect to foreclosure proceedings under Article 2A of Chapter 45 of the General Statutes, that "[e]quitable issues may be raised only as provided in G.S. 45- 21.34." N.C. Gen. Stat. § 45-21.34, as indicated above, grants authority solely to "a judge of the superior court." Accordingly, the clerk of court had no jurisdiction to hear Clark's motion seeking equitable relief from the order confirming the sale. See also Meehan v. Cable, 127 N.C. App. 336, 340, 489 S.E.2d 440, 443- 44 (1997) ("It is well established that a clerk of court is without jurisdiction to consider equitable defenses in a foreclosure hearing pursuant to section 45-21.16 of the General Statutes."). The superior court, therefore, properly dismissed Clark's appeal of the denial of her 17 November motion.
    With respect to Clark's Rule 60 motion, denied in the clerk of court's March order, even assuming (without deciding) that it was properly before the clerk of court, the superior court properly affirmed the clerk's denial of the motion. In the motion, Clark contended (1) that neither she nor the Hunts were properly served with notice of the foreclosure hearing and (2) that the order granting her request for a continuance of the 1 October 2003 hearing was not served on her or the Hunts. The record, however, indicates that Clark and the Hunts were properly served with the notice of hearing as provided by N.C. Gen. Stat. § 45-21.16(a). Further, Clark's presence at the 1 October 2003 hearing establishes that she had actual notice; she in fact obtained a continuance. See N.C. Gen. Stat. § 45-21.16(a) ("If any party is not served or is not timely served prior to the date of the hearing, the clerk shall order the hearing continued to a date and time certain, not less than 10 days from the date scheduled for the original hearing."). Since Clark also had actual notice of the new hearing date, the failure to serve her with an order of continuance cannot justify relief under Rule 60. The superior court, therefore, properly affirmed the clerk of court's order denying Clark's motion under Rule 60.

    Affirmed.
    Judges WYNN and McGEE concur.
    Report per Rule 30(e).

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