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.
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
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.
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
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),
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
to set the sale aside.'" Beneficial Mortgage Co. of N.C. v.
, 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
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
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.
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.
Judges WYNN and McGEE concur.
Report per Rule 30(e).
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