{
  "id": 8526449,
  "name": "IN THE MATTER OF THE FORECLOSURE OF THE DEED OF TRUST OF DONALD C. ENDERLE and wife, JEAN WATKINS POOLE ENDERLE, Mortgagors/Grantors TO W. MARK CUMALANDER, Substitute Trustee and THE FIDELITY BANK, Beneficiary and Noteholder",
  "name_abbreviation": "In re the Foreclosure of the Deed of Trust of Enderle",
  "decision_date": "1993-07-06",
  "docket_number": "No. 9210SC629",
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      "year": 1977,
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          "page": "166",
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  "last_updated": "2023-07-14T20:46:54.224272+00:00",
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    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Judges JOHNSON and WYNN concur."
    ],
    "parties": [
      "IN THE MATTER OF THE FORECLOSURE OF THE DEED OF TRUST OF DONALD C. ENDERLE and wife, JEAN WATKINS POOLE ENDERLE, Mortgagors/Grantors TO W. MARK CUMALANDER, Substitute Trustee and THE FIDELITY BANK, Beneficiary and Noteholder"
    ],
    "opinions": [
      {
        "text": "GREENE, Judge.\nDonald C. Enderle and Jean Watkins Poole Enderle (the Enderles) appeal from the trial court\u2019s order affirming the decision of the clerk of court authorizing foreclosure on property owned by the Enderles by trustee W. Mark Cumalander (substitute trustee), pursuant to a deed of trust held by the Fidelity Bank (the Bank).\nThe Bank loaned $255,000.00 to Donald and Arlene Tant (the Tants) on 17 June 1987, for the purpose of improving property owned by the Tants. The note signed by the Tants reflects that the loan is secured in part by \u201cDeed of Trust on Lot 7 1.09 Acres Barton Creek Township Wake Co.\u201d On the same day, the Enderles executed a deed of trust, with the bank as beneficiary and John W. Byrne as trustee, which states that the Enderles are indebted to the bank for the sum of $255,000.00, and conveys in trust \u201cLot 7 according to map entitled \u2018Subdivision Land of Jean Poole Enderle.\u2019 \u201d This is the same property listed as security in the Tant note. The deed of trust contained a power of sale upon default. Cumalander was later named as substitute trustee.\nOn 30 June 1991, the Tants defaulted in the repayment of the note. The Bank requested that the substitute trustee foreclose on the Enderle deed of trust pursuant to the power of sale. The substitute trustee filed a notice of hearing for foreclosure of a deed of trust on 20 September 1991. A hearing on the substitute trustee\u2019s right to proceed with foreclosure was held by the clerk of court on 10 October 1991, and an order authorizing foreclosure was filed 1 November 1991. The Enderles appealed the order to superior court. After hearing arguments from both parties, the superior court signed an order on 15 April 1992, which order authorized foreclosure.\nThe issue is whether a person may execute a valid deed of trust for the debt of another.\nThe Enderles argue that \u201cthe State\u2019s public policy will not allow an individual\u2019s property to be foreclosed upon unless the individual property owner is personally indebted and in default upon a debt or other obligation owed to the party seeking foreclosure.\u201d Thus, the Enderles contend, because they were not indebted to the Bank, the execution of a deed of trust to the Bank securing the debt of the Tants cannot support a foreclosure upon default by the Tants.\nA \u201c \u2018mortgage to secure the debt of a third person, the mortgagor being subject to no obligation, is clearly valid.\u2019 \u201d Grant S. Nelson & Dale A. Whitman, Real Estate Finance Law \u00a7 2.1 (2d ed. 1985) (citation omitted); 9 George W. Thompson, Commentaries on The Modern Law of Real Property \u00a7 4776 (John S. Grimes ed. 1958) (mortgage valid without personal liability on part of mortgagor); 59 C.J.S. Mortgages \u00a7 90 (1949) (benefit to third party can constitute consideration for mortgage and \u201c[h]ence, the debt may be the debt of another and the consideration . . . may consist [of] a loan to a third person\u201d (footnotes omitted)); 55 Am. Jur. 2d Mortgages \u00a7 146 (1971) (\u201c[m]ortgages may be executed to secure the obligations of third persons\u201d and \u201c[a]n undertaking ... to be personally responsible for the payment of the debt of the third person is not essential to the validity\u201d (footnotes omitted)). Therefore, had the deed of trust in question been given as security for the debt of the Tants, the foreclosure would have been valid.\nIn this instance, however, the deed of trust states that it is given \u201cto secure the payment of\u201d a debt in the amount of $255,000.00 owed by the Enderles to the Bank, as evidenced by a note \u201cmade by\u201d the Enderles. There is no reference in the deed of trust to indicate that it is security for a debt of the Tants. Therefore, because, as the Bank admits, the Enderles are not indebted to the Bank, and because the alleged Enderle debt is the one referenced in the deed of trust, the substitute trustee was without authority to foreclose. Simply put, because the deed of trust did not properly \u201cidentify the obligation secured,\u201d it is invalid. Walston v. Twiford, 248 N.C. 691, 693, 105 S.E.2d 62, 64 (1958).\nWe do not address the issue, because it is not raised, of whether, because the deed of trust may fail to express the true intent of the parties, it should be reformed. See Durham v. Creech, 32 N.C. App. 55, 59, 231 S.E.2d 163, 166 (1977) (deed of trust can be reformed upon a showing, by clear and convincing evidence, that a mutual mistake occurred in its drafting); Ragsdale v. Kennedy, 22 N.C. App. 509, 511, 207 S.E.2d 301, 303, rev\u2019d on other grounds, 286 N.C. 130, 209 S.E.2d 494 (1974) (reformation must be pled with particularity).\nAccordingly, the decision of the trial court is\nReversed.\nJudges JOHNSON and WYNN concur.",
        "type": "majority",
        "author": "GREENE, Judge."
      }
    ],
    "attorneys": [
      "J. Kenneth Edwards, by J. Kenneth Edwards, for mortgagor-appellants.",
      "Cumalander & Cumalander, by W. Mark Cumalander and Tonya C. Cumalander, for John W. Byrne, Trustee-appellee."
    ],
    "corrections": "",
    "head_matter": "IN THE MATTER OF THE FORECLOSURE OF THE DEED OF TRUST OF DONALD C. ENDERLE and wife, JEAN WATKINS POOLE ENDERLE, Mortgagors/Grantors TO W. MARK CUMALANDER, Substitute Trustee and THE FIDELITY BANK, Beneficiary and Noteholder\nNo. 9210SC629\n(Filed 6 July 1993)\nMortgages and Deeds of Trust \u00a7 14 (NCI4th|\u2014 validity of deed of trust executed for debt of another \u2014failure to identify obligation secured \u2014deed of trust invalid\nA person may execute a valid deed of trust for the debt of another; however, in this case the deed of trust did not properly identify the obligation secured, and it was therefore invalid.\nAm Jur 2d, Mortgages \u00a7\u00a7 132 et seq.\nAppeal by mortgagors Donald C. Enderle and wife, Jean Watkins Poole Enderle from order signed 15 April 1992 in Wake County Superior Court by Judge George R. Greene. Heard in the Court of Appeals 13 May 1993.\nJ. Kenneth Edwards, by J. Kenneth Edwards, for mortgagor-appellants.\nCumalander & Cumalander, by W. Mark Cumalander and Tonya C. Cumalander, for John W. Byrne, Trustee-appellee."
  },
  "file_name": "0773-01",
  "first_page_order": 803,
  "last_page_order": 806
}