Bame v Priority Trustee Services, (05-322) 01/17/2006

Appeal by plaintiff from order entered 10 January 2005 by Judge W. Erwin Spainhour in Rowan County Superior Court. Heard in the Court of Appeals 27 December 2005.

Malcolm B. Blankenship, Jr., for plaintiff-appellant.

Morris, Schneider & Prior, L.L.C., by David S. O'Quinn, for defendant-appellants.

JACKSON, Judge.

    Sydney Jerome Bame ("Plaintiff") appeals from the trial court's order granting the motion to dismiss of defendants Priority Trustee Services of N.C., L.L.C. and Bank of America, N.A. (“defendants”). After a careful review of the record and briefs, we affirm the trial court's dismissal.
    The facts leading to plaintiff's lawsuit are as follows: Plaintiff was in default on his mortgage and defendants initiated foreclosure proceedings. The foreclosure sale was scheduled for 11:30 a.m. on 6 January 2004. At 12:17 p.m. on 6 January 2004, aReport of Foreclosure Sale was filed with the Rowan County Clerk of Superior Court showing 11:30 a.m. as the designated “Time of Sale.”
    Plaintiff filed an action to set aside the foreclosure. Plaintiff asserted that “[n]o one appeared on behalf of the Trustee at the time and place appointed to conduct the sale, and the Trustees report of sale, is erroneous and invalid.” Defendants answered asserting affirmative defenses and subsequently moved to dismiss pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted. To support their motion to dismiss, defendants attached as exhibits A and B, a letter from plaintiff's attorney and a copy of the Report of Foreclosure Sale, respectively. Defendants asserted that the Report of Foreclosure Sale was prima facie evidence that the sale was conducted within one hour of the time designated in accordance with North Carolina General Statutes, section 45-21.23. After conducting a hearing upon defendants' motion to dismiss, the trial court entered an order finding, in relevant part:
        4. The defendants initiated foreclosure proceedings, and the foreclosure sale was scheduled for January 6,2004, at 11:30 a.m.

        5. Exhibit A, as attached to the Motion, indicates Attorney Malcolm B. Blankenship arrived for the sale at 11:30 a.m. and left after 10 minutes, because no one was present.

        6. At 12:17 p.m., a Report of Foreclosure Sale was filed with the Rowan County Clerk of Superior Court.

        7. North Carolina General Statute § 45[-]21.23 states the following:

        “A sale shall begin at the time designated in the notice of sale or as soon thereafter aspracticable, but not later than one hour after the time fixed therefor unless it is delayed by other sales held at the same place. The sale shall be held between the hours of 10:00 a.m. and 4:00 p.m. on any day other than Sunday or a legal holiday when the courthouse is closed for transactions."”

        8. The Court considers Exhibits A and B as attached to the defendants' Motion, and the Court takes judicial notice of the Report of Foreclosure Sale.

Based upon the findings, the trial court concluded that “[t]he foreclosure sale may be held within one hour of the noticed time for sale pursuant to North Carolina General Statute § 45[- ]21.23[,]” and dismissed plaintiff's action. Plaintiff appeals.
    At the outset, we note that in its Order dismissing plaintiff's action, the trial court recited that the matter was before it upon defendants' motions to dismiss pursuant to North Carolina General Statutes, section 1A-1, Rule 12(b)(6). In ruling upon the motions, however, the trial court considered two exhibits filed with defendants' motion to dismiss. “Where matters outside the pleadings are presented to and not excluded by the court on a motion to dismiss for failure to state a claim, the motion shall be treated as one for summary judgment under Rule 56.” DeArmon v. B. Mears Corp., 312 N.C. 749, 758, 325 S.E.2d 223, 229 (1985) (citations omitted). Therefore, we treat the trial court's order dismissing plaintiff's claims as one granting summary judgment in favor of defendants and apply the applicable standard of review.
    “[T]he standard of review on appeal from summary judgment is whether there is any genuine issue of material fact and whether the moving party is entitled to a judgment as a matter of law.” Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998) (citation omitted). “[T]he evidence presented by the parties must be viewed in the light most favorable to the non-movant.” Id. Summary judgment is proper where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2004). The party moving for summary judgment must establish that no triable issue of material fact exists “'by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim or cannot surmount an affirmative defense which would bar the claim.'” DeWitt v. Eveready Battery Co., 355 N.C. 672, 681, 565 S.E.2d 140, 146 (2002) (quoting Collingwood v. G.E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989)).
    Plaintiff first argues that there was sufficient evidence to create a material issue of fact as whether a “sale took place at all[.]” We disagree.
    Here, the trial court took judicial notice of the Report of Foreclosure Sale and considered the letter of plaintiff's attorney. Although the letter indicates the sale did not take place at 11:30 a.m. or ten minutes thereafter, the Report of Foreclosure Sale, file stamped 12:17 p.m., shows that Bank of America, N.A. purchased the real property for $58,556.26. Thus, there is no issue as to whether the sale took place.    The next question, therefore, is whether plaintiff is entitled to judgment in his favor as a matter of law. N.C. Gen. Stat. § 1A-1, Rule 56(c). Plaintiff argues that North Carolina General Statutes, section 45-21.23 requires that the sale had to have been executed at the designated time of 11:30 a.m. As the trial court set forth in its order, the statute provides in relevant part:
        A sale shall begin at the time designated in the notice of sale or as soon thereafter as practicable, but not later than one hour after the time fixed therefor unless it is delayed by other sales held at the same place.

N.C. Gen. Stat. § 45-21.23 (emphasis added). This Court has stated:
        “'In matters of statutory construction, the task of the courts is to ensure that the purpose of the Legislature, the legislative intent, is accomplished.'” In determining the legislative intent, “the courts must look at the language, spirit, and goal of the statute.” “[W]here a statute is explicit on its face, the courts have no authority to impose restrictions that the statute does not expressly contain.”

Jackson v. A Woman's Choice, Inc., 130 N.C. App. 590, 594, 503 S.E.2d 422, 425 (1998) (internal citations omitted).
    Here, North Carolina General Statutes, section 45-21.23 explicitly states that the sale shall be completed no later than an hour after the appointed time. With the appointed time in this case of 11:30 a.m., the sale should have been completed no later that 12:30 p.m. To interpret the statute as the plaintiff would have us do would “impose restrictions that the statute does not expressly contain.” Jackson, 130 N.C. App. at 594, 503 S.E.2d at 425. Because the Report of Foreclosure Sale/Resale was filed withthe clerk's office at 12:17 p.m., the sale complied with the statute, and plaintiff is not entitled judgment as a matter of law. Accordingly, the trial court's order is affirmed.
    Affirmed.
    Judges WYNN and CALABRIA concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***