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

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.