Petitioner first avers that the trial erred by disallowing
petitioner's foreclosure because the substitute trustee presented
competent evidence sufficient to satisfy the four requirements of
N.C.G.S. § 45-21.16(d). The statute states, in relevant part:
(d) . . . the clerk shall consider the evidence
of the parties and may consider, in addition to
other forms of evidence required or permitted
by law, affidavits and certified copies of
documents. If the clerk finds the existence of
(i) valid debt of which the party seeking to
foreclose is the holder, (ii) default, (iii)
right to foreclose under the instrument, and
(iv) notice to those entitled to such under
subsection (b), then the clerk shall authorize
the mortgagee or trustee to proceed under the
instrument. . . .
(d1) The act of the clerk in so finding or
refusing to so find is a judicial act and may
be appealed to the judge of the district or
superior court having jurisdiction at any time
within 10 days after said act. Appeals from
said act of the clerk shall be heard de novo.
N.C. Gen. Stat. § 45-21.16 (2005). The role of the clerk is
limited to making findings on those four issues. If the foreclosure
action is appealed to the superior court for a de novo
inquiry before a judge of superior court is also limited to the same
issues. Espinosa v. Martin
, 135 N.C. App. 305, 308, 520 S.E.2d
108, 111 (1999) (citations omitted). Furthermore, the trial court
may not hear equitable defenses, although evidence of legal defensesis permissible. In re Foreclosure of Azalea Garden Bd. & Care,
, 140 N.C. App. 45, 57, 535 S.E.2d 388, 396 (2000).
We note at the outset that the applicable standard of review
on appeal where, as here, the trial court sits without a jury, is
whether competent evidence exists to support its findings of fact
and whether the conclusions reached were proper in light of the
findings. In re Foreclosure of Land Covered by a Certain Deed of
Trust Given by Aal-Anubiaimhotepokorohamz
, 123 N.C. App. 133, 135,
472 S.E.2d 369, 370, disc. review denied
, 345 N.C. 179, 479 S.E.2d
203 (1996) (quoting Walker v. First Federal Savings and Loan
N.C. App. 528, 532, 378 S.E.2d 583, 585 (1989)). The pivotal
finding in this case was the trial court's determination that the
Bigelows were not in default. The court determined that the
disruption to the payment schedule stemmed from the petitioner's
refusal to accept the Bigelow's December check. The relevant part
of the order states:
Shiron J. Bigelow presented evidence tending to
show that ABN AMRO Mortgage wrongfully refused
to honor a check dated December 23, 2003 in the
amount of $1920.00, and that said noteholder's
alleged default herein was based on said
wrongful refusal to accept patment [sic] from
We have previously held that the determination of whether a
party is in default on a contract is a question of fact. Lowman v.
, 15 N.C. App. 700, 704, 190 S.E.2d 700, 703 (1972).
Therefore, we review the superior court's order to determine only
whether its findings are supported by competent evidence. In this
case, Ms. Bigelow testified under oath, as follows: Q: After that check [December 2003] was sent
back to you, did you attempt to contact ABN
A: Sir, I tried at least 200 times, and I have
it in my notebook everybody that I talked to.
Q: Did you attempt to send additional funds to
them after this, after this check was sent
A: I sent them another payment and they sent it
back to me.
Q: Did they claim that you were in default
because of this check they had returned?
A: They never did call me back, sir. I never
did get anybody on the phone return call.
Ms. Bigelow also testified about her later efforts to send $7,000
to the petitioner in an attempt to stop the foreclosure proceedings
at issue here:
Q: Were you, were you told by ABN AMRO that you
were suppose [sic] to receive a packet for you
to fill out to send back with the $7000?
A: That's correct.
Q: Did you ever receive any of that material?
A: No, sir. I did not.
Q: Did you attempt to contact them to determine
when you would receive that material?
A: Yes, sir. I did. And I also called Shapiro
out of Charlotte, and one of their employees
did an e-mail to them to tell them what was
going on. And that's the only way I got a call
because they would not return any of my calls.
Q: Were you instructed by anyone with ABN AMRO
not to send the $7000 in until you had the
financial packet that you were suppose [sic] to
A: Yes, sir, with my signature.
Q: You then, did you then receive a third
notice of foreclosure?
A: Yes, sir. I did.
Q: And that is the proceeding that we have
before the Court today?
A: That's correct
Q: During the pendency of this proceeding here,
did you receive a mortgage coupon book from ABO
Ammo [sic] mortgage?
A: Yes, sir, I did. . . .
Q: Did you in fact send a check to ABN AMRO for
the March payment called for in that coupon
book? A: Yes, sir, I did. . . .
Q: Was that check honored by ABN AMRO?
A: No, sir. It wasn't. It took I don't know how
long for it to get back.
Q: They returned it to you?
A: Yes, sir. They did. . . .
Q: Ms. Bigelow, did you encounter difficulties
in speaking to ABN AMRO regarding these various
work-out plans or payments that were supposed
to be made or returned checks?
A: Yes, sir, I have tried for the last I don't
know how many years to try to talk with them.
They do not return any call. You leave
messages, after message. No one will call you
back. The only way you can get them is going
through Shapiro out of Charlotte, and they
would e-mail. But to return a call to this day,
they will not return no calls.
Q: Did you and your husband Harvey Bigelow make
efforts to comply with the requests from ABN
AMRO with regard to payments to be made or
information to be submitted?
A: Sir, I have did [sic] everything they asked
of us to do, and they still did not comply with
anything they told us they was [sic] going to
While petitioner presented evidence to the contrary, this Court does
not function as an appellate fact finder. Rose v. City of Rocky
, 180 N.C. App. 392, 399, 637 S.E.2d 251, 256 (2006). Our
review of the foregoing testimony leads us to conclude that it fully
supports the superior court's finding of fact that there was no
 Turning to petitioner's argument that the trial court
impermissibly relied on equitable defense, we note that our Supreme
Court has held that a mortgage is a contract. Palmer v. Latham
N.C. 103, 105, 91 S.E. 525, 525 (1917). Therefore, the principles
of contract law are applicable. A cardinal principle of contract
law is that a party to a contract may not take advantage of its
nonperformance if its own actions prevented performance of thecontract. Cater v. Barker
, 172 N.C. App. 441, 446, 617 S.E.2d 113,
117 (2005). See also Mullen v. Sawyer
, 277 N.C. 623, 633, 178
S.E.2d 425, 431 (1971) (It is a salutary rule of law that one who
prevents the performance of a condition, or makes it impossible by
his own act, will not be permitted to take advantage of the
nonperformance.) In this case, counsel for petitioner conceded
that bureaucratic tangles might have hampered payment. When
questioned about the additional booklets sent to respondents, he
I find that working with large companies,
sometimes the left hand doesn't know what the
right hand is doing.
The apparent lack of communication between different departments or
personnel of petitioner bank supports the trial court's factual
determination that the respondents were not in default. The absence
of a default bars the entry of an order for foreclosure. In re
, 113 N.C. App. 175, 178, 437 S.E.2d 511, 512 (1993).
Therefore, the trial court was correct in denying petitioner's
request for foreclosure, and its order must be affirmed.
We note that petitioner has argued that respondents were in
default of their obligations because even by their own account,
their December 2003 check was a personal, not a cashier's check, and
was late. However, this matter was not raised before the trial
court, and petitioner may not, therefore, raise it now. Our
Supreme Court has long held that where a theory argued on appeal was
not raised before the trial court, the law does not permit parties
to swap horses between courts in order to getter a better mount inthe appellate courts. State v. Holliman
, 155 N.C. App. 120, 123,
573 S.E.2d 682, 685 (2002) (citations and quotations omitted).
Petitioner argues that it is still owed payment on an
outstanding debt. However, this appeal pertains only to the
immediate foreclosure proceedings, which are governed by the strict
statutory criteria outlined above. Other claims may be litigated
in subsequent proceedings. In re Watts
, 38 N.C. App. 90, 94, 247
S.E.2d 427, 429 (1978).
Judges McCULLOUGH and TYSON concur.
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