In re: Rock

• Court: Court of Appeals of North Carolina
• Decided: June 17, 2026
• Docket: 24-875
• Status: Unpublished
• Author: Judge Donna Stroud

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA24-875

Filed 17 June 2026

Durham County, No. 22SP000445-310

IN THE MATTER OF THE FORECLOSURE OF A DEED OF TRUST EXECUTED BY MARTIN E. ROCK DATED JULY 2, 2007 AND RECORDED IN BOOK 5693 AT PAGE 38 IN THE DURHAM COUNTY PUBLIC REGISTRY, NORTH CAROLINA

Appeal by respondent from orders entered 7 September 2023 by Judge John

M. Dunlow in Superior Court, Durham County. Heard in the Court of Appeals 13

August 2025.

Brock & Scott, PLLC, by Alan M. Presel, for petitioner-appellee.

Mark Hayes for respondent-appellant.

STROUD, Judge.

Respondent Martin E. Rock appeals a superior court order authorizing

Goddard and Peterson, PLLC, as substitute trustee, to proceed with a foreclosure sale

of his real property under a deed of trust. He also appeals a second order, entered

the same day as the first, refusing to let him withdraw his earlier appeal to superior

court. After he gave notice of appeal, the sale went forward, and the property was

conveyed to the highest bidder. This appeal is therefore moot and we dismiss it.

I. Background IN RE: ROCK

Opinion of the Court

This case arises from the foreclosure of Respondent’s property on Shamrock

Road in Durham, North Carolina. In 2007, Respondent executed a home equity line

of credit agreement and disclosure, which was secured by a promissory note and deed

of trust on the property. On 10 June 2022, Petitioner Citibank filed a “Notice of

Hearing on Foreclosure of Deed of Trust” with the Durham County Clerk of Superior

Court, alleging that Respondent was in default. A clerk held the foreclosure hearing

on 22 February 2023. She stated that she was “inclined to issue [the] order of

foreclosure” but that there were “a few things” she “want[ed] to take under

advisement.”

At the end of the hearing, the Substitute Trustee’s counsel handed up a “copy

of an order and [n]otice of [s]ale” for the clerk’s review. Counsel did not have a copy

for Respondent. The clerk, however, told Respondent that he would “have an

opportunity to look at it,” and that he could appeal within ten days after she entered

an order. Respondent asked to “provide comments to someone in the [c]lerk’s office

to pass on to” the clerk. She gave him forty-eight hours to “provide comments to

somebody in [s]pecial [p]roceedings”—until the end of the day on Friday, 24 February

2023.

On 28 February 2023, the clerk entered an “Order Permitting Foreclosure”

(First Order). She made findings of fact on each of the six matters that North

Carolina General Statute Section 45-21.16(d) requires. See N.C. Gen. Stat. § 45-

21.16(d) (2025); see also In re Foreclosure of Real Prop. under Deed of Tr. from Young,

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227 N.C. App. 502, 505, 744 S.E.2d 476, 479 (2013) (explaining that the clerk “is

limited to making the six findings of fact specified under subsection (d) of [Section 45-

21.16]”: (1) a valid debt held by the foreclosing party; (2) default; (3) the trustee’s right

to foreclose under the instrument; (4) notice to those entitled to it under subsection

(b); (5) that the debt is not a home loan—or, if it is, that pre-foreclosure notice was

given and the Article 11 periods have elapsed; and (6) that the sale is not barred by

North Carolina General Statute Section 45-21.12A).

On 7 March 2023, the same clerk entered a separate order (Second Order). The

Second Order stated that it was issued “[u]pon consideration of the evidence

presented[ ] and the arguments of counsel” at the same 22 February 2023 hearing the

First Order dealt with. It neither mentions the First Order nor purports to amend or

correct any earlier order. And it makes none of the six findings that Section 45-

21.16(d) requires. See N.C. Gen. Stat. § 45-21.16(d). Instead, it includes extensive

findings on the matters Respondent argued at the hearing: a dismissed 2019

foreclosure apparently involving the same property; an unpublished decision of this

Court, In re Foreclosure of a Lien by Exec. Off. Park of Durham Ass’n, Inc. v. Rock,

287 N.C. App. 694, 883 S.E.2d 227 (2023) (unpublished), which concerned a different

property Respondent owns;1 and an assortment of other unrelated matters, all taken

1 That case involved a foreclosure for unpaid condominium assessments under the Unit Ownership

Act—a different property and a different statutory scheme. See N.C. Gen. Stat. § 47A (2025) (“Unit Ownership Act”).

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by “judicial notice.” It also quotes several cases and statutes, most of them beside the

point. The Second Order is unusual, and it ends by stating that Petitioner’s “petition

for an order of sale is DENIED.”2 It was never served on Petitioner.

On 10 March 2023, Respondent filed a notice of appeal from the First Order.

Three days later, the clerk entered an order to transfer the foreclosure matter to

Durham County Superior Court.

On 6 April 2023, Respondent filed a motion to dismiss Petitioner’s petition for

foreclosure sale under Section 45-21.16(d1). The Second Order, he alleged, had

denied the foreclosure, and because no one appealed it, the matter was over. He also

alleged that the clerk held a hearing on 22 February 2023 and that:

2. . . . The [c]lerk indicated she was inclined to grant the order of sale, but she wished to take certain issues raised and argued by [Respondent] under advisement. The [c]lerk also stated [Respondent] was allowed to provide comments on the [Petitioner’s] pro forma order.

3. The [c]lerk entered a pro forma order on 28 February 2023[, i.e., the First Order].

4. Respondent appealed this order on 10 March 2023 by filing a [n]otice of [a]ppeal to [s]uperior [c]ourt and by paying an appeal bond in an amount deemed appropriate by the [c]lerk. Hence, the [First] [O]rder entered . . . is stayed pending appeal.

5. On 28 February 2023, [Respondent] filed a Notice of Alternate Proposed Order and provided an alternate

2 The Second Order presents a conundrum: Our record does not reveal why the clerk entered it after

the First Order had already been filed. The transcript of the hearing before the clerk does not explain it. Neither do the superior court’s transcripts and orders. The parties’ counsel engaged in some speculation, but (again) the record supplies no answer.

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proposed order for the [c]lerk’s consideration.

6. After taking the matters raised by [Respondent] under advisement, the [c]lerk entered an order DENYING . . . [Petitioner’s] petition for an order of sale on 07 March 2023[, i.e., the Second Order].

On 24 April 2023, Respondent moved for equitable relief under North Carolina

General Statute Section 45-21.34. See N.C. Gen. Stat. § 45-21.34 (2025) (“Any owner

of real estate . . . 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 . . . to enjoin such sale . . . .”). The motion sought to enjoin the

foreclosure sale on equitable grounds, pressing the same objections the Second Order

had catalogued.

The superior court denied each of Respondent’s motions in a 22 May 2023

order. It found, in part:

7. There is no evidence in the record that the [c]lerk[’s] . . . purported [Second] Order . . . was ever served upon either [Petitioner] or Substitute Trustee.

8. Without ruling upon the validity of the [c]lerk[’s] . . . [Second] Order . . . , the [c]ourt finds that any order entered by the [c]lerk . . . in this proceeding has been properly appealed to [s]uperior [c]ourt pursuant to [Section] 45- 21.16(d1), and no further action is required by any party to effectuate the transfer of this proceeding to [s]uperior [c]ourt.

9. The de novo hearing regarding the appeal of the [c]lerk[’s] . . . [First and Second] Order(s) has been calendared by the [c]ourt and shall be conducted on [5 June 2023]. At such hearing, any party may assert any legal

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grounds in favor of or in opposition to a foreclosure sale in this proceeding. In accordance with North Carolina law, this [c]ourt has no jurisdiction to consider any equitable claims or defenses which may be raised by Respondent at said de novo hearing.

On 15 June 2023, Respondent filed a motion to “set aside or vacate” the First

Order. Once again, he alleged that the clerk “said, on the record,” he could submit

“comments for the court’s consideration on the pre-written, pro forma, one-page

order”—that is, the First Order. Petitioner filed a response, noting that the superior

court had already addressed these matters in its 22 May 2023 order.

On 25 July 2023, the superior court held a hearing on the foreclosure petition.

Respondent, now represented by counsel, moved to continue, and the court continued

the matter to 24 August 2023.

At that hearing, Petitioner presented its case in chief for foreclosure and

rested; Respondent then presented his evidence. The court could not finish the

hearing that day, so it scheduled the hearing’s conclusion for 9:45 a.m. on 28 August

Fifteen minutes before the hearing was set to resume—at 9:30 a.m. on 28

August—Respondent filed a “Notice of Withdrawal/Dismissal of Appeal” (dismissal

notice). It stated:

Respondent . . . gives notice that he is withdrawing the appeal of the clerk’s [First] [O]rder . . . from which he entered notice of appeal to the Durham County Superior Court on [10 March 2023] in an abundance of caution. The [clerk’s] [First] [O]rder . . . was superseded by the clerk’s

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. . . [Second] [O]rder . . . . Consistent therewith, and pursuant to North Carolina Rule of Civil Procedure 41(a), [Respondent] hereby withdraws and/or dismisses the appeal of the [clerk’s] [First] [O]rder . . . .

The hearing concluded the next day.

On 7 September 2023, the superior court entered an order on the dismissal

notice (dismissal order). It concluded, in part, that the 22 May 2023 order was the

law of the case with respect to the First Order’s validity—which (as a reminder)

authorized foreclosure—and could not be “modified, overruled or changed by th[e]

[c]ourt.” It also determined that Rule 41 of the North Carolina Rules of Civil

Procedure did not permit Respondent “to withdraw or dismiss his appeal to [s]uperior

[c]ourt after . . . Petitioner had rested [its] case in the de novo hearing.” See N.C. Gen.

Stat. § 1A-1, Rule 41 (2025) (“Dismissal of actions”). The court ordered the hearing

to “continue to conclusion.”

That same day, the superior court entered another order allowing the

foreclosure sale (foreclosure order). It made the findings of facts Section 45-21.16(d)

requires and ordered that the Substitute Trustee could proceed with the sale. See

N.C. Gen. Stat. § 45-21.16(d).

On 6 October 2023, Respondent appealed both orders.

II. Appellate Jurisdiction

In his opening brief, Respondent acknowledges that “a foreclosure sale has

occurred regarding the property at issue” but argues that “this appeal is not moot”

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under In re Cornblum, 220 N.C. App. 100, 727 S.E.2d 338 (2012). Petitioner counters

that the appeal is moot, providing documentation of the foreclosure sale’s completion.

That documentation shows that the Substitute Trustee conveyed the property to the

highest bidder by a trustee’s deed dated 28 June 2024 and recorded it in the Durham

County Register of Deeds on 19 July 2024, in Book 10140, Page 55. Ten days later,

the Substitute Trustee recorded a foreclosure notice in Book 10145, Page 289. And

on 12 August 2024, the clerk audited and recorded the “Final Report and Account of

Foreclosure Sale,” completing the foreclosure sale.

Respondent does not dispute any of this; instead, he resists mootness on two

grounds. We address each in turn.

A. Lack of Mootness Under In re Cornblum

Respondent asserts that this case “presents the exact same situation” as

Cornblum. See id. He concedes the sale is complete and cannot be reversed, but he

asks us to vacate the foreclosure order anyway. His theory is that no valid appeal

ever reached the superior court, so its orders are void—a defect he says “ar[ose] from

a lack of notice of appeal.” And Cornblum, he claims, lets him raise that defect even

now: there, this Court held the attack on the sale moot yet still “reverse[d] the order

authorizing the foreclosure sale.” So “[m]ootness is no bar,” in his view, to deciding

“whether the [s]uperior [c]ourt had subject matter jurisdiction to order foreclosure.”

The appellants in Cornblum had executed notes and deeds of trust on several

pieces of property. Id. at 101, 727 S.E.2d at 339. After they defaulted, the mortgagee

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commenced foreclosure proceedings. Id. The appellants “demanded arbitration of all

claims” under the arbitration agreements in the deeds of trust. Id. When the

mortgagee refused, they filed motions to compel arbitration. Id. The clerk denied the

motions and allowed the foreclosure sales to proceed. Id. On appeal, the superior

court did the opposite: It entered an order compelling arbitration and later confirmed

the award the arbitrator entered. Id. at 101–02, 727 S.E.2d at 339–40. Despite

“demand[ing]” arbitration, the appellants argued on appeal that the superior court

“did not have jurisdiction to confirm the arbitration award.” Id. at 102, 727 S.E.2d at

340.

This Court held that “submitting th[e] case to arbitration and confirming the

arbitration award fell outside of the superior court’s subject matter jurisdiction.” Id.

at 105, 727 S.E.2d at 342. A court hearing a power-of-sale foreclosure under Section

45-21.16 cannot compel or confirm arbitration; its jurisdiction reaches only the six

findings Section 45-21.16(d) requires, and arbitration is not one of them. Id. at 105,

727 S.E.2d at 341–42. Because the superior court had acted beyond its jurisdiction,

we reversed its judgment confirming the award. Id.

The appellants gained nothing from that ruling, though, because the

foreclosure sale had already closed. Id. at 107, 727 S.E.2d at 343. Drawing on In re

Hackley, 212 N.C. App. 596, 713 S.E.2d 119 (2011), this Court explained that once a

foreclosure sale is held and the trustee’s deed recorded, the parties’ rights become

fixed under North Carolina General Statute Section 45-21.29A, and any challenge to

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the sale is moot. Id. at 106–07, 727 S.E.2d at 342–43. The completed sale could not

be “undone through th[e] appeal.” Id. at 107, 727 S.E.2d at 343. So the appellants

prevailed on the jurisdictional point and still lost the property—a result the Court

itself called “somewhat incongruous.” Id.

This case bears some resemblance to Cornblum, because Respondent is

responsible for creating the subject matter jurisdiction issue he now raises on appeal.

See id. (noting that the appellants’ “conflicting litigation postures, the statutory

framework, as well as binding precedent compel[led]” a “somewhat incongruous”

outcome). He created it by filing a notice of appeal from the First Order and then

attempting to withdraw it during the foreclosure hearing in superior court. And he

added to the confusion by procuring the Second Order, which conflicts with the First

Order allowing foreclosure.

But this case differs from Cornblum in other ways that matter. There,

“submitting th[e] case to arbitration and confirming the arbitration award fell outside

the superior court’s subject matter jurisdiction.” See id. at 105, 727 S.E.2d at 341.

An order compelling arbitration does not address the findings required under Section

45-21.16(d) at all, and an order confirming an arbitration award touches on those

issues only indirectly. The two orders here are different. The foreclosure order and

the dismissal order both fell within the superior court’s jurisdiction under Section 45-

21.16(d). See N.C. Gen. Stat. § 45-21.16(d). The foreclosure order made the six

findings that statute requires and authorized the sale. Id. The dismissal order ruled

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on Respondent’s attempt to withdraw his appeal in the middle of the foreclosure

hearing. Because Respondent had filed the dismissal notice, it was within the

superior court’s authority under Section 45-21.16(d) to address the matter.

It is true that Section 45-21.16(d) does not list ruling on a party’s attempted

withdrawal of a notice of appeal among the issues a clerk must decide in a foreclosure

action. See id. But in ruling on Respondent’s attempted withdrawal, the superior

court acted well within its authority. Respondent did not strip the court of

jurisdiction under Section 45-21.16(d) by filing his dismissal notice after the hearing

was already underway. His position is essentially this: once he filed that notice, the

court had to stop the foreclosure hearing, because he said so. That rule would deny

the court even the authority to rule on whether the withdrawal was valid.

Respondent could not deprive the superior court of jurisdiction to complete the

foreclosure hearing or even to rule on his dismissal notice by withdrawing his appeal

partway through.

Subject matter jurisdiction is fixed when a proceeding begins; a party can

neither create nor destroy it by an act taken in the middle of the case. As our Supreme

Court has put it, jurisdiction “depends upon the state of affairs existing at the time it

is invoked” and “cannot be conferred upon a court by consent, waiver[,] or estoppel.”

In re Peoples, 296 N.C. 109, 144, 250 S.E.2d 890, 910 (1978) (citations omitted). Once

a court has jurisdiction, “the general rule is that it will not be ousted by subsequent

events,” even events that “would have prevented jurisdiction from attaching in the

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first instance.” Id. at 146, 250 S.E.2d at 911. “Jurisdiction is not a light bulb which

can be turned on or off during the course of a trial.” Id. (citation omitted). Were the

rule otherwise, “it would be within the power of the defendant to preserve or destroy

jurisdiction of the court at his own whim.” Id. (citation omitted). That is what

Respondent sought to do here.

In short, Cornblum does not help Respondent. It reversed a foreclosure order

because the order was void; these orders are not. With no defect to remedy, there is

nothing to vacate, and the completed sale leaves nothing else for this appeal to decide.

B. Lack of Mootness Based on Potential Future “Collateral Relief”

Respondent’s second argument is that this appeal still matters to him. He asks

“why Petitioner would fight this appeal so vigorously if in fact the appeal will not

change anything at all,” pointing to Petitioner’s challenge to the record, its

participation in a settlement conference, and its “comprehensive brief.” The answer

he offers is collateral relief: “[R]eversing the foreclosure order will permit [him] to

pursue collateral relief, even if the property itself remains with a third-party

purchaser.” So Respondent suggests that if we deem this appeal moot and do not rule

on his claimed jurisdictional defect, he may still “pursue collateral relief” against

Petitioner despite the completed foreclosure.

But Respondent’s hope of pursuing some unspecified future action against

Petitioner is not the kind of “collateral consequence” that saves a completed

foreclosure from mootness.

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Usually, when the terms of a challenged trial court judgment have been carried out, a pending appeal of that judgment is moot because an appellate court decision cannot have any practical effect on the existing controversy. In certain cases, however, the continued existence of the judgment itself may result in collateral legal consequences for the appellant. Possible adverse consequences flowing from a judgment preserve an appellant’s substantial stake in the outcome of the case and the validity of the challenged judgment continues to be a “live” controversy. As a result, an appeal from a judgment which creates possible collateral legal consequences for the appellant is not moot.

In re A.K., 360 N.C. 449, 452–53, 628 S.E.2d 753, 755 (2006) (internal quotation

marks and citations omitted). Respondent has not shown any “[p]ossible adverse

consequences” flowing from the orders that would keep this a “live controversy,” now

that the foreclosure sale cannot be undone. Id. The prospect of some future action

against Petitioner is not a “collateral legal consequence[ ]” of these orders. Id.

Respondent’s appeal is thus moot.

III. Conclusion

For the reasons explained above, we dismiss Respondent’s appeal.

DISMISSED.

Judges FLOOD and FREEMAN concur.

Report per Rule 30(e).

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