{ "id": 9191190, "name": "IN RE: Foreclosure of Real Property Under Deed of Trust from Eli Brown and Velvet Brown, in the original amount of $143,600.00, dated October 18, 1999, and RECORDED IN BOOK 2724, PAGE 568, DURHAM COUNTY REGISTRY CURRENT OWNER(s): Eli Brown and Velvet Brown, Lawrence S. Maitin, Substitute Trustee", "name_abbreviation": "In re Foreclosure of Brown", "decision_date": "2003-03-18", "docket_number": "No. COA01-838", "first_page": "477", "last_page": "490", "citations": [ { "type": "official", "cite": "156 N.C. App. 477" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "N.C. Gen. Stat. \u00a7 46-21.16", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(d)" } ], "opinion_index": 0 }, { "cite": "437 S.E.2d 511", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "512" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 175", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521282 ], "year": 1993, "pin_cites": [ { "page": "177" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0175-01" ] }, { "cite": "255 S.E.2d 287", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "289" } ], "opinion_index": 0 }, { "cite": "41 N.C. App. 529", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 8553089 ], "year": 1978, "pin_cites": [ { "page": "228" } ], "opinion_index": 0, "case_paths": [ "/nc-app/38/0226-01" ] }, { "cite": "246 S.E.2d 801", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "804" } ], "opinion_index": 0 }, { "cite": "37 N.C. App. 575", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554119 ], "year": 1978, "pin_cites": [ { "page": "579" } ], "opinion_index": 0, "case_paths": [ "/nc-app/37/0575-01" ] }, { "cite": "247 S.E.2d 427", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "429" } ], "opinion_index": 0 }, { "cite": "38 N.C. App. 90", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 8548161 ], "weight": 2, "year": 1969, "pin_cites": [ { "page": "378" }, { "page": "378" } ], "opinion_index": 0, "case_paths": [ "/nc-app/6/0375-01" ] }, { "cite": "324 S.E.2d 829", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "833" } ], "opinion_index": 0 }, { "cite": "312 N.C. 770", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4755941 ], "year": 1985, "pin_cites": [ { "page": "777" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0770-01" ] }, { "cite": "403 S.E.2d 508", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "560" } ], "opinion_index": 0 }, { "cite": "328 N.C. 570", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2543651, 2542578, 2538195, 2545749, 2538303 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0570-05", "/nc/328/0570-02", "/nc/328/0570-04", "/nc/328/0570-03", "/nc/328/0570-01" ] }, { "cite": "400 S.E.2d 121", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "122" }, { "page": "122-23", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 557", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527974 ], "year": 1991, "pin_cites": [ { "page": "559-60" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0557-01" ] }, { "cite": "450 S.E.2d 744", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "746" } ], "opinion_index": 0 }, { "cite": "338 N.C. 508", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2519615 ], "year": 1994, "pin_cites": [ { "page": "512" } ], "opinion_index": 0, "case_paths": [ "/nc/338/0508-01" ] }, { "cite": "440 S.E.2d 865", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "866" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 86", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527131 ], "year": 1994, "pin_cites": [ { "page": "88" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0086-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 45-21.16", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 10, "pin_cites": [ { "page": "(dl)" }, { "page": "(d)" }, { "page": "(a)" }, { "page": "(d)" }, { "page": "(d)" }, { "page": "(a)" }, { "page": "(a)" }, { "page": "104" }, { "page": "(a)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1021, "char_count": 31809, "ocr_confidence": 0.757, "pagerank": { "raw": 3.0949412231785734e-07, "percentile": 0.8588921593498309 }, "sha256": "2a9911a4827480e6e1b8de4f7daf11c55a3b6c965700797cb9faca3312e99fe7", "simhash": "1:8a6ab96ad64b3d16", "word_count": 5145 }, "last_updated": "2023-07-14T21:05:49.893248+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge EAGLES and Judge McCULLOUGH concur." ], "parties": [ "IN RE: Foreclosure of Real Property Under Deed of Trust from Eli Brown and Velvet Brown, in the original amount of $143,600.00, dated October 18, 1999, and recorded in Book 2724, Page 568, Durham County Registry Current Owner(s): Eli Brown and Velvet Brown, Lawrence S. Maitin, Substitute Trustee" ], "opinions": [ { "text": "ELMORE, Judge.\nRespondents Eli and Velvet Brown (collectively, \u201crespondents\u201d or \u201cthe Browns\u201d) appeal from a 17 April 2001 trial court order authorizing substitute trustee, Lawrence S. Maitin (\u201csubstitute trustee\u201d or \u201cMaitin\u201d), to proceed with foreclosure on a deed of trust securing the Browns\u2019 indebtedness on certain real property located at 2227 University Drive, Durham, North Carolina (\u201csubject property\u201d). Appellee Option One Mortgage Corporation (\u201cOption One\u201d) services the Browns\u2019 loan account under a promissory note executed by Eli Brown and secured by the subject deed of trust. Option One is also part of a business entity involving Norwest Bank Minnesota, N.A., which is the holder of the promissory note and subject deed of trust.\nRespondents assign error to the admission of testimonial evidence from the substitute trustee, as well as the testimony via affidavit of Option One\u2019s assistant secretary, in the trial court proceedings. Respondents also appeal the trial court\u2019s denial of their motion to dismiss, argue that the trial court improperly shifted the burden of proof in the foreclosure hearing to respondents, and assert that the foreclosure sale should be deemed defective. For the reasons stated herein, we affirm the trial court\u2019s order authorizing foreclosure.\nOn 18 October 1999, Eli Brown and Tandem National Mortgage, Inc. (\u201cTandem\u201d) executed the promissory note, whereby Tandem extended to Eli Brown a mortgage loan in the principal amount of $143,600.00, plus interest, for the purchase of the subject property. Tandem thereafter transferred its rights as the note holder to \u201cNorwest Minnesota Bank, N.A., as trustee, for the registered holders of Option One Mortgage Loan Trust.\u201d Tandem also transferred the deed of trust to Option One. The promissory note contained the following relevant provisions:\n7. BORROWER\u2019S FAILURE TO PAY AS REQUIRED\n(B) Default\nIf I do not pay the full amount of each monthly payment on the date it is due, I will be in default.\n(C) Notice of Default\nIf I am in default, the Note Holder may send me a written notice telling me that if I do not pay the overdue amount by a certain date, the Note Holder may require me to pay immediately the full amount of the principal that has not been paid and all the interest that I owe on that amount. That date must be at least 30 days after the date on which the notice is delivered or mailed to me.\n8. GIVING OF NOTICES\nUnless applicable law requires a different method, any notice that must be given to me under this Note will be given by delivering it or by mailing it by first class mail to me at the [subject] Property Address above or at a different address if I give the Note Holder a notice of my different address.\nThe promissory note was secured by the subject deed of trust, executed by Eli Brown and Velvet Brown on 18 October 1999, and recorded at the Durham County Registry on 19 October 1999. The deed of trust provided in pertinent part as follows:\nBorrower irrevocably grants and conveys to Trustee and Trustee\u2019s successors and assigns, in trust, with power of sale, the [subject property].\n14. Notices. Any notice to Borrower provided for in this [deed of trust] shall be given by delivering it or by mailing it by first class mail unless applicable law requires use of another method. The notice shall be directed to the [subject] Property Address or any other address Borrower designates by notice to Lender. . . . Any notice provided for in this [deed of trust] shall be deemed to have been given to Borrower . . . when given as provided in this paragraph.\n21. Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration following Borrower\u2019s breach of any covenant or agreement in this [deed of trust]... If the default is not cured on or before the date specified in the notice, Lender, at its option, may require immediate payment in full of all sums secured by this [deed of trust] without further demand and may invoke the power of sale and any other remedies permitted by applicable law.\nThe Browns defaulted on their loan by failing to make any monthly payments after the period ending 1 December 1999. Pursuant to the terms of the promissory note and deed of trust, Option One thereafter accelerated the Browns\u2019 indebtedness and declared the balance to be immediately due. When no payment was forthcoming from the Browns, Maitin was named substitute trustee and instituted foreclosure proceedings by filing a petition for hearing and notice of hearing with the Durham County Clerk of Superior Court on 21 June 2000. Maitin attempted to serve these papers upon respondents by mailing them to the subject property, addressed to Eli Brown and Velvet Brown individually, via certified mail on 6 June 2000. These certified mailings, which were mistakenly addressed to Eli Brown and Velvet Brown at 2225, rather than 2227, University Drive, were returned to Maitin marked \u201cunclaimed\u201d on 8 June 2000. A return of service, dated 23 June 2000, was thereafter executed by a Durham County Sheriff\u2019s deputy with respect to both Eli Brown and Velvet Brown individually, stating that service was effected upon each \u201c[b]y posting the Notice of hearing on the door of [the subject] property, after having first made due and diligent search and not having found the respondents.\u201d A foreclosure hearing before the clerk was set for 18 July 2000.\nThe foreclosure hearing was thereafter continued until 1 August 2000, apparently due to a death in the clerk\u2019s family. At the Browns\u2019 request, the hearing was subsequently continued until 22 August 2000. For reasons which are unclear from the record, the hearing did not take place on 22 August 2000. On 21 September 2000, Maitin filed an amended notice of hearing, which set the foreclosure hearing for 24 October 2000. Once again, Maitin attempted to serve respondents via individual certified mailings of the amended notice to Eli and Velvet Brown at the subject property address, but these certified mailings, which were properly addressed, were returned to Maitin marked \u201cunclaimed\u201d on 26 September 2000. As was the case in June, a Durham County Sheriffs deputy executed a return of service for each of the respondents on 25 September 2000, stating that the amended notice of hearing was served upon Eli Brown and Velvet Brown \u201cby posting the Amended Notice of hearing on the door of [the subject] property, after first having made due and diligent search and not having found the respondents.\u201d\nOn 24 October 2000, a foreclosure hearing was held before the Durham County Clerk of Superior Court. By order filed on 26 October 2000, the clerk authorized Maitin, the substitute trustee, to proceed with foreclosure on the subject deed of trust. Also on 26 October 2000, a document entitled \u201cAffidavit of Velvet Brown\u201d was filed with the clerk\u2019s office, wherein Velvet Brown testified \u201c[t]hat she has not gone on the property which is the subject matter of this proceeding and, therefore, has not seen any posting which may or may not have been located on the real property[.]\u201d On 6 November 2000, respondents filed their notice of appeal to the superior court of the clerk\u2019s order, pursuant to N.C. Gen. Stat. \u00a7 45-21.16(dl). The superior court hearing was initially calendared for 13 February 2001, but for reasons not reflected in the record, the hearing was not held at that time. The Durham County Trial Court Administrator thereafter notified Maitin and respondents\u2019 counsel by mail that the matter had been placed on the 16 April 2001 trial calendar. On 17 April 2001, counsel for the Browns, counsel for Option One, and Maitin appeared for the hearing de novo before the superior court. By order filed 17 April 2001, Judge Hill authorized Maitin to proceed with foreclosure under a power of sale. On 26 April 2001, respondents filed notice of appeal to this Court.\nI.\nRespondents first assign error to the trial court\u2019s decision allowing the substitute trustee, Maitin, to testify \u201cadversely\u201d to respondents. At the superior court hearing, counsel for Option One called Maitin as a witness, and Maitin\u2019s testimony on direct examination was strictly limited to his efforts to serve respondents with the notice of hearing and amended notice of hearing. In response to questioning from Judge Hill, Maitin testified as to the existence of a valid debt, default, and existence of a power of sale with respect to the subject deed of trust. On cross examination, counsel for respondents inquired as to Maitin\u2019s personal knowledge of (1) efforts to serve the Browns, (2) the existence of a valid debt, (3) the identity of the note holder, and (4) whether there had been a default. Respondents contend that Maitin\u2019s testimony was improper because it tended to support the four findings the,court must make in order to authorize foreclosure, namely (1) a valid debt, (2) default, (3) right to foreclose under the instrument, and (4) notice to all parties so entitled. N.C. Gen. Stat. \u00a7 45-21.16(d) (2001). We find no merit in respondents\u2019 argument.\n\u201cIn deed of trust relationships, the trustee is a disinterested third party acting as the agent of both the debtor and the creditor.\u201d In re Proposed Foreclosure of McDuffie, 114 N.C. App. 86, 88, 440 S.E.2d 865, 866 (1994). In a foreclosure proceeding, the trustee is charged with the duty to effect service of the notice of hearing. N.C. Gen. Stat. \u00a7 45-21.16(a) (2001). At the outset of the superior court hearing, respondents\u2019 counsel stated that he was \u201cappearing for the purposes of challenging jurisdiction . . . not making a general appearance.\u201d Respondents challenged the trial court\u2019s jurisdiction on the grounds that Maitin\u2019s service of the notice of hearing was inadequate. Consequently, it was not improper for the trial court to allow Option One to rebut respondents\u2019 assertion by calling Maitin as a witness and inquiring as to his efforts to serve the Browns, since Maitin had a statutory duty to effect valid service of process in this matter. Because the trustee\u2019s duty to serve notice of the foreclosure hearing inures just as much to the benefit of the borrower as it does to the lender, we do not find that Maitin\u2019s testimony concerning his efforts to fulfill this duty has removed him in any way from his proper status as a \u201cdisinterested third party\u201d in the instant deed of trust relationship. Option One\u2019s direct examination of Maitin was strictly limited to the means employed by Maitin to obtain service of process upon the Browns. While Judge Hill broadened the scope of Maitin\u2019s testimony by inquiring as to the existence of a valid debt, default, and power of sale, counsel for respondents on cross-examination further expanded. Maitin\u2019s testimony by inquiring as to his personal knowledge of these additional foreclosure elements. A party may not complain of action which that party induced. Frugard v. Pritchard, 338 N.C. 508, 512, 450 S.E.2d 744, 746 (1994). This assignment of error is overruled.\nII.\nRespondents next assign error to the superior court\u2019s admission into evidence of (1) an affidavit of service executed on 12 April 2001, by which Maitin testified regarding his efforts to serve the notice of hearing upon the Browns; and (2) an affidavit executed on 11 April 2001 by Kathy Milchak, Option One\u2019s assistant secretary, by which Milchak testified as to the existence of the statutory elements for foreclosure. Respondents also assert that the superior court erred by admitting two additional affidavits, executed by Maitin on 23 October 2000 and by Milchak on 4 May 2000, which are identical to the aforementioned affidavits in all respects save date of execution. Respondents assert that the superior court improperly relied on these affidavits as evidence of the four statutory elements of foreclosure. Respondents contend that admission of these affidavits was error because they were not properly served, and because Milchak\u2019s affidavit was inadmissible hearsay. We do not agree with respondents\u2019 assertions.\nRule 5(a) of the North Carolina Rules of Civil Procedure provides in pertinent part that \u201cevery written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment and similar paper shall be served upon each of the parties.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 5(a) (2001). Proof of service of such papers must be filed with the court. N.C. Gen. Stat. \u00a7 1A-1, Rule 5(c) (2001). Respondents contend that because the affidavits of Maitin and Milchak were not served upon them prior to the hearing, and because the affidavits do not have certificates of service attached, the trial court should not have admitted these unserved affidavits into evidence.\nIn Chaplain v. Chaplain, 101 N.C. App. 557, 559-60, 400 S.E.2d 121, 122, rev. denied, 328 N.C. 570, 403 S.E.2d 508 (1991), this Court found the defendant\u2019s argument that \u201cthe trial court erred in receiving the affidavit of plaintiffs\u2019 counsel . . . because it was not served on counsel before the hearing\u201d to be \u201cwithout merit.\u201d The Chaplain Court held as follows:\nThe provision requiring service of materials before a hearing for summary judgment is not inviolable. Unserved materials are receivable within the court\u2019s discretion. Rule 6(d), N.C. Rules of Civil Procedure. The main purpose of requiring service of affidavits before the hearing is, of course, to enable the other party to answer the matters sworn to. That purpose was not compromised or frustrated by receiving the unserved affidavit, since the record does not show, and defendant does not contend, that if she had been served before the hearing she could or would have contradicted the assertion [contained within the unserved affidavit].\nId. at 560, 400 S.E.2d at 122-23 (emphasis added). With respect to the trial court\u2019s admission into evidence of unserved affidavits, we find no reason why this Court should distinguish between affidavits filed in support of a motion for summary judgment and affidavits filed in support of a petition for foreclosure, and we hold that the unserved affidavits of Maitin and Milchak were properly received into evidence within the trial court\u2019s discretion. Where matters are left to the discretion of the trial court, appellate review is limited to a determination of whether there was a clear abuse of discretion. White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985). A trial court may be reversed for abuse of discretion only upon a showing that its actions are manifestly unsupported by reason or so arbitrary that they could not have been the result of a reasoned decision. Id.\nHere, as in Chaplain, respondents\u2019 ability to \u201canswer the matters sworn to\u201d in these affidavits was not \u201ccompromised or frustrated\u201d by their admission into evidence. The earlier affidavits of Maitin and Milchak had already been admitted into evidence at the hearing before the clerk, and there is nothing in the record to indicate respondents\u2019 counsel objected to their admission at.that time. They are identical in content to the latter affidavits. Respondents were clearly familiar with the assertions contained therein \u2014 specifically, that each of the four elements of foreclosure was present. Respondents came to the superior court hearing fully prepared to challenge the \u201cnotice\u201d element, as evidenced by counsel\u2019s assertion at the hearing\u2019s outset that he was \u201cappearing for the purpose of challenging jurisdiction\u201d based on improper service. As in Chaplain, these affidavits contained no new assertions which respondents could \u201ccontradict\u201d through further investigation or additional time to construct an argument prior to the hearing. We hold that the trial court did not abuse its discretion by admitting the unserved affidavits into evidence.\nRespondents also contend that Milchak\u2019s affidavits. should not have been admitted into evidence because they are inadmissible hearsay. Hearsay is \u201ca statement, other than one made by the declar- \u25a0 ant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 801(c) (2001). Hearsay evidence \u201cis not admissible except as provided by statute or by these rules.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 802 (2001) (emphasis added).\nPursuant to N.C. Gen. Stat. \u00a7 45-21.16(d), in a foreclosure hearing before the clerk of court, \u201cthe clerk shall consider the evidence of the parties and may consider . . . affidavits and certified copies of documents.\u201d The statute, however, is silent regarding admission of affidavits as evidence in foreclosure hearings de novo before the superior court. In their brief, respondents acknowledge the statutory provision allowing affidavits as evidence in foreclosure hearings before the clerk, but argue, without citing any authority, that affidavits should not be admitted in hearings de novo before the superior court because \u201cthe standards of what constitutes competent evidence undoubtedly change when a matter is appealed to a higher court for a trial de novo.\u201d We do not find respondents\u2019 argument on this point persuasive.\nThis Court has stated that affidavits, while \u201cinherently weak as a method of proof,\u201d are properly admitted as evidence \u201cin certain limited situations in which the weakness of this method of proof is deemed substantially outweighed by the necessity for expeditious procedure.\u201d In re Custody of Griffin, 6 N.C. App. 375, 378, 170 S.E.2d 84, 86 (1969). With respect to Milchak\u2019s affidavit, we-find the instant foreclosure hearing to be such a situation. A power of sale is a contractual arrangement in a deed of trust which confers upon the trustee or mortgagee the power to sell the real property mortgaged, without a court order, in the event of a default. In re Foreclosure of Michael Weinman Associates, 333 N.C. 221, 227, 424 S.E.2d 385, 388 (1993). \u201cA power of sale provision in a deed of trust is a means of avoiding lengthy and costly foreclosures by action.\u201d In re Watts, 38 N.C. App. 90, 94, 247 S.E.2d 427, 429 (1978). In the case sub judice, the lender and the servicer of the mortgage loan are out-of-state corporations. Requiring those entities to present live witness testimony, through a corporate officer or employee, at the hearing as to the existence of the statutory foreclosure elements would frustrate the ability of the instant deed of trust\u2019s power of sale provision to function as a more expeditious and less expensive alternative to a foreclosure by action. The burden of requiring a mortgage lender or servicer who, like Kathy Milchak, works in California to be present at a foreclosure hearing in North Carolina would be passed on to all borrowers in the form of increased lending costs. This is especially true in the instant case, where the hearings before both the clerk and the superior court were continued multiple times at the respondents\u2019 request. We hold that, in the instant case, the \u201cnecessity for expeditious procedure\u201d substantially outweighs any concerns about the efficacy of allowing Milchak to testify by affidavit, and the trial court properly admitted her affidavit into evidence. Griffin, 6 N.C. App. at 378, 170 S.E.2d at 86.\nWe note that respondents do not argue in their brief that Maitin\u2019s affidavit testimony is inadmissible hearsay. Any such argument is thus properly deemed abandoned. N.C. R. App. P. 28(b)(5). We hold that the superior court properly admitted the affidavits of Maitin and Milchak into evidence, and these assignments of error are overruled.\nIII.\nRespondents next argue that the superior court erred by (1) admitting and relying on Maitin\u2019s oral hearsay testimony about matters outside of his personal knowledge, and (2) denying respondents\u2019 motion to dismiss for lack of sufficient evidence of a valid debt and default. As noted above, Judge Hill, and counsel for respondents on cross-examination, elicited testimony from Maitin as to the existence of a valid debt, default, and power of sale, despite Maitin\u2019s lack of personal knowledge regarding these foreclosure elements. \u201cWhere both competent and incompetent evidence is before the trial court, we assume that the trial court, when functioning as the finder of facts, relied solely upon the competent evidence and disregarded the incompetent evidence.\u201d In re Cooke, 37 N.C. App. 575, 579, 246 S.E.2d 801, 804 (1978). When sitting without a jury, the trial court is able to eliminate incompetent testimony, and the presumption arises that it did so. Walker v. Walker, 38 N.C. App. 226, 228, 247 S.E.2d 615, 616 (1978). Kathy Milchak\u2019s affidavit and the promissory note and deed of trust constitute sufficient competent evidence of a valid debt and default, even without considering Maitin\u2019s testimony regarding these foreclosure elements. These assignments of error are therefore without merit.\nIV.\nBy their next assignment of error, respondents contend that the trial court improperly denied their motion to dismiss on the basis that there was insufficient evidence establishing service of process. Respondents argue that because they rented out the subject property and did not reside therein, Maitin\u2019s efforts to serve the notice of hearing by certified mailings to the subject property address, and ultimately by posting the subject property, were insufficient. We disagree.\nNotice is one of the four findings the trial court must make in order to authorize foreclosure. N.C. Gen. Stat. \u00a7 45-21.16(d). The statute further provides that:\n[N]otice shall be served and proof of service shall be made in any manner provided by the Rules of Civil Procedure for service of summons, including service by registered mail or certified mail, return receipt requested. However... if service upon a party cannot be effected after a reasonable and diligent effort in a manner authorized above, notice to such party may be given by posting the notice in a conspicuous place and manner upon the property not less than 20 days prior to the hearing.\nN.C. Gen. Stat. \u00a7 45-21.16(a) (2001). \u201cIn determining whether due diligence has been exerted in effecting service, this Court has rejected use of a \u2018restrictive mandatory checklist\u2019 and has held determination in each case is based upon the facts and circumstances thereof.\u201d Barclays American/Mortgage Corp. v. BECA Enterprises, 116 N.C. App. 100, 103, 446 S.E.2d 883, 886 (1994). A \u201creasonable and diligent effort\u201d under N.C. Gen. Stat. \u00a7 45-21.16(a) necessitates employment of reasonably ascertainable information. Id. The public record is generally regarded as being reasonably ascertainable, and this Court has consistently attached significance to whether or not the public record has been inspected in order to determine an appropriate address for service of process. Id. at 104, 446 S.E.2d at 886.\nIn the instant case, Maitin attempted service of the notice of hearing and amended notice of hearing upon Eli and Velvet Brown by certified mailings addressed to the subject property. The notice of hearing was mistakenly addressed to 2225, rather than 2227, University Drive. The amended notice was properly addressed. After each mailing was returned unclaimed, Maitin attempted personal service by sheriff, who posted the notice and amended notice of hearing at the subject property. Respondents, who requested multiple continuances, were represented by counsel at the hearings before both the clerk and the superior court, and timely filed notice of appeal from each decision. At the superior court hearing, respondents introduced Durham County tax records for properties owned by \u201cEli Brown III\u201d and \u201cEli Brown Incorporated,\u201d each of which listed an address different from the subject property. Respondents argue that because Maitin did not attempt to serve the Browns at these addresses before posting the subject property, his attempts at effecting service were not \u201creasonable and diligent\u201d and service was therefore defective.\nBased on this evidence, we agree with the trial court\u2019s analysis of the \u201cfacts and circumstances\u201d and hold that Maitin\u2019s efforts to serve respondents prior to posting the property were \u201creasonable and diligent\u201d within the meaning of N.C. Gen. Stat. \u00a7 45-21.16(a). Maitin had no way of knowing whether the names on the tax records, one of which was a corporation, represented the same individuals who signed the deed of trust. We find it significant that respondents clearly had actual notice of both hearings, since they were either present or represented by counsel at each. Where respondents \u201creceived no notice of the hearing, but the record shows that [they were] present at the hearing and participated in it,\u201d we have held that respondents cannot complain of lack of notice, as they are unable to show any prejudice to their rights by it. In re Foreclosure of Norton, 41 N.C. App. 529, 531, 255 S.E.2d 287, 289 (1979). Since respondents here have likewise failed to show any prejudice to their rights, this assignment of error is overruled.\nV.\nBy their next assignment of error, respondents contend that the trial court erred by placing the burden of proof on the Browns to prove there was no valid reason for the foreclosure to proceed. Respondents contend that by stating \u201cthe debtors, having shown no valid legal reason why foreclosure should not commence\u201d immediately before issuing the order authorizing foreclosure, Judge Hill indicated that she had improperly placed the burden on respondents to prove why foreclosure should not proceed. We disagree.\nIn a foreclosure proceeding, the lender bears the burden of proving that there was a valid debt, default, right to foreclose under power of sale, and notice. In re Foreclosure of Kitchens, 113 N.C. App. 175, 177; 437 S.E.2d 511, 512 (1993); see also N.C. Gen. Stat. \u00a7 46-21.16(d). The debtor must be given notice of his right to appear at the foreclosure hearing and \u201cshow cause as to why the foreclosure should not be allowed to be held.\u201d N. C. Gen. Stat. \u00a7 45-21.16(c)(7) (2001). In the instant case, Option One offered sufficient competent evidence which tended to prove each of these elements. Respondents only offered evidence tending to disprove the notice element. We hold that Judge Hill\u2019s remarks did not indicate an improper shift of the burden of proof, but rather were her legal conclusion that respondents, in light of Option One\u2019s evidence and respondents\u2019 lack thereof, failed to \u201cshow cause as to why the foreclosure should not be allowed to be held.\u201d Id. This assignment of error is overruled.\nVI.\nBy their final assignment of error, respondents contend that the foreclosure sale of the subject property should be deemed defective due to an alleged defect in the publication dates for the sale, as reflected in the amended notice of foreclosure sale. \u201cIn order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.\u201d N.C. R. App. P. 10(b)(1). Since this issue was never considered by the trial court and is raised for the first time on appeal, it is not properly before this Court, and we decline to address it.\nAccordingly, for the reasons stated herein, the trial court\u2019s order authorizing foreclosure on the subject deed of trust is\nAffirmed.\nChief Judge EAGLES and Judge McCULLOUGH concur.", "type": "majority", "author": "ELMORE, Judge." } ], "attorneys": [ "Stubbs, Cole, Breedlove, Prentis & Biggs, P.L.L.C., by Terry D. Fisher, for petitioner-appellee Option One Mortgage Corporation.", "Law Offices of Thomas H. Stark, by Thomas H. Stark and John G. Briggs III, for respondent-appellants Eli Brown and Velvet Brown." ], "corrections": "", "head_matter": "IN RE: Foreclosure of Real Property Under Deed of Trust from Eli Brown and Velvet Brown, in the original amount of $143,600.00, dated October 18, 1999, and recorded in Book 2724, Page 568, Durham County Registry Current Owner(s): Eli Brown and Velvet Brown, Lawrence S. Maitin, Substitute Trustee\nNo. COA01-838\n(Filed 18 March 2003)\n1. Mortgages and Deeds of Trust\u2014 foreclosure hearing \u2014 testimony of substitute trustee\nThere was no error in a superior court foreclosure hearing where a substitute trustee testified on direct examination about his efforts to serve the debtors (respondents) with notice of the hearing, his testimony expanded under questioning by the judge to include the existence of a valid debt, default, and power of sale, and he answered still more questions under cross-examination from respondents. It was proper for the mortgage company to inquire into the trustee\u2019s efforts to serve the debtors and, after the judge broadened the scope of the testimony, respondents further expanded the testimony on cross-examination. Parties may not complain of actions they induced.\n2. Evidence\u2014 unserved affidavits \u2014 no objection to earlier, identical affidavits \u2014 no prejudice\nThe superior court did not abuse its discretion in a foreclosure hearing by admitting unserved affidavits which related the trustee\u2019s efforts to serve notice of the hearing and the existence of the statutory elements for foreclosure. Earlier, identical affidavits from the same witnesses had been admitted without objection, respondents were clearly familiar with the assertions contained therein, and the new affidavits contained no new assertions which respondents could contradict through further investigation or additional time.\n3. Evidence\u2014 affidavit \u2014 weak method of proof \u2014 need for expeditious procedure\nAn affidavit from a mortgage company official was properly admitted in a superior court foreclosure hearing because the necessity for expeditious procedure outweighs the weakness of the method of proof. Requiring the lender and mortgage servicer to present live testimony as to the existence of the statutory foreclosure elements would frustrate the ability of the deed of trust\u2019s sale provision to function as an expeditious and less expensive alternative to a foreclosure by action; moreover, requiring an out-of-state lender or servicer (in this case from California) to be present at a foreclosure hearing would be a burden which would be passed on in the form of increased lending costs.\n4. Evidence\u2014 foreclosure \u2014 trustee\u2019s testimony \u2014 beyond per sonal knowledge \u2014 other sufficient evidence\nThere was no prejudice in a foreclosure hearing before a superior court judge from the trustee\u2019s testimony about elements of foreclosure beyond his personal knowledge because the promissory note, deed of trust, and affidavit from the mortgage service company constituted sufficient evidence of the debt and default.\n5. Mortgages and Deeds of Trust\u2014 foreclosure \u2014 notice\u2014 posting on rental property\nA motion to dismiss a foreclosure proceeding was properly denied where respondents contended that service of process by certified mailings to the property and posting on the property were insufficient because they rented out the property, but respondents were represented by counsel at hearings before the clerk and the superior court and requested multiple continuances. Although the tax records listed an address different from the subject property, the trustee had no way of knowing that the names on the tax records, one of which was a corporation, represented the same individuals who signed the deed of trust.\n6. Mortgages and Deeds of Trust\u2014 burden of proof \u2014 judge\u2019s remark\nA superior court judge\u2019s remark that the debtors had failed to show valid reason for a foreclosure not to proceed did not improperly shift the burden of proof but indicated the judge\u2019s legal conclusion. The mortgage company offered sufficient competent evidence of each of the required elements and respondents only offered evidence tending to disprove notice.\nAppeal by respondents from judgment entered 17 April 2001 by Judge Evelyn W. Hill in Durham County Superior Court. Heard in the Court of Appeals 27 January 2003.\nStubbs, Cole, Breedlove, Prentis & Biggs, P.L.L.C., by Terry D. Fisher, for petitioner-appellee Option One Mortgage Corporation.\nLaw Offices of Thomas H. Stark, by Thomas H. Stark and John G. Briggs III, for respondent-appellants Eli Brown and Velvet Brown." }, "file_name": "0477-01", "first_page_order": 507, "last_page_order": 520 }