In re Foreclosure of Deed of Trust from Rollins

Court of Appeals of North Carolina

In re Foreclosure of Deed of Trust from Rollins

331 S.E.2d 303, 75 N.C. App. 656, 1985 N.C. App. LEXIS 3669

CourtCourt of Appeals of North Carolina

DecidedJuly 2, 1985

DocketNo. 8422SC797

StatusPublished

This text of 331 S.E.2d 303 (In re Foreclosure of Deed of Trust from Rollins) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Foreclosure of Deed of Trust from Rollins, 331 S.E.2d 303, 75 N.C. App. 656, 1985 N.C. App. LEXIS 3669 (N.C. Ct. App. 1985).

Pincite

Opinion

PHILLIPS, Judge.

The existence of a mortgage debt is an indispensable requisite for foreclosure under our law. G.S. 45-21.16(d); Matter of Sutton Investments, Inc., 46 N.C. App. 654, 266 S.E. 2d 686 (1980), disc. rev. denied, 301 N.C. 90, --- S.E. 2d --- (1980). The record before us contains no competent evidence to support the judge’s finding that a valid debt exists under the note and deed of trust in question. The record shows without contradiction that the mortgage indebtedness that the substitute trustee seeks to collect in this foreclosure proceeding was paid off in full during the first foreclosure in Randolph County. Thus, this foreclosure is without foundation and the order of the trial judge must be set aside. In re Foreclosure of Connolly v. Potts, 63 N.C. App. 547, 306 S.E. 2d 123 (1983). As to the many questions that may later arise between the parties concerning the property involved, we say nothing. The only question now before us is whether this foreclosure proceeding is well founded, and our holding is that it is not.

Reversed.

Judges Arnold and Cozort concur.

Free access — add to your briefcase to read the full text and ask questions with AI

PHILLIPS, Judge.

The existence of a mortgage debt is an indispensable requisite for foreclosure under our law. G.S. 45-21.16(d); Matter of Sutton Investments, Inc., 46 N.C. App. 654, 266 S.E. 2d 686 (1980), disc. rev. denied, 301 N.C. 90, --- S.E. 2d --- (1980). The record before us contains no competent evidence to support the judge’s finding that a valid debt exists under the note and deed of trust in question. The record shows without contradiction that the mortgage indebtedness that the substitute trustee seeks to collect in this foreclosure proceeding was paid off in full during the first foreclosure in Randolph County. Thus, this foreclosure is without foundation and the order of the trial judge must be set aside. In re Foreclosure of Connolly v. Potts, 63 N.C. App. 547, 306 S.E. 2d 123 (1983). As to the many questions that may later arise between the parties concerning the property involved, we say nothing. The only question now before us is whether this foreclosure proceeding is well founded, and our holding is that it is not.

Reversed.

Judges Arnold and Cozort concur.

Cite This Page — Counsel Stack

Bluebook (online)

331 S.E.2d 303, 75 N.C. App. 656, 1985 N.C. App. LEXIS 3669, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-foreclosure-of-deed-of-trust-from-rollins-ncctapp-1985.

Opinion

Related

Cite This Page — Counsel Stack