{ "id": 3805711, "name": "IN THE MATTER OF THE FORECLOSURE BY DAVID A. SIMPSON, P.C., SUBSTITUTE TRUSTEE, OF A DEED OF TRUST EXECUTED BY REX T. GILBERT, JR. AND DANIELA L. GILBERT, HUSBAND AND WIFE, DATED MAY 5, 2006 AND RECORDED ON MAY 10, 2006, IN BOOK 219 AT PAGE 53 OF THE HYDE COUNTY PUBLIC REGISTRY", "name_abbreviation": "In re the Foreclosure by Simpson", "decision_date": "2011-05-03", "docket_number": "No. COA10-361", "first_page": "483", "last_page": "497", "citations": [ { "type": "official", "cite": "211 N.C. App. 483" } ], "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": "612 S.E.2d 386", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632819 ], "year": 2005, "pin_cites": [ { "page": "389" } ], "opinion_index": 0, "case_paths": [ "/se2d/612/0386-01" ] }, { "cite": "658 S.E.2d 493", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640645 ], "year": 2008, "pin_cites": [ { "page": "499", "parenthetical": "citing In re Helms, 127 N.C. App. at 510, 491 S.E.2d at 675" } ], "opinion_index": 0, "case_paths": [ "/se2d/658/0493-01" ] }, { "cite": "272 F.R.D. 47", "category": "reporters:specialty", "reporter": "F.R.D.", "case_ids": [ 4274742 ], "year": 2011, "pin_cites": [ { "page": "48" } ], "opinion_index": 0, "case_paths": [ "/frd/272/0047-01" ] }, { "cite": "2010 WL 4320460", "category": "reporters:specialty_west", "reporter": "WL", "weight": 2, "year": 2010, "opinion_index": 0 }, { "cite": "2010 WL 2696763", "category": "reporters:specialty_west", "reporter": "WL", "year": 2010, "opinion_index": 0 }, { "cite": "170 N.C. App. 399", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9005632 ], "year": 2005, "pin_cites": [ { "page": "403-04" } ], "opinion_index": 0, "case_paths": [ "/nc-app/170/0399-01" ] }, { "cite": "596 S.E.2d 344", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2004, "pin_cites": [ { "page": "349", "parenthetical": "\" 'Statements in affidavits as to opinion, belief, or conclusions of law are of no effect.' \" (quoting 3 Am. Jur. 2d, Affidavits \u00a7 13 (2002))" }, { "page": "349" }, { "page": "348-49" }, { "page": "349" } ], "opinion_index": 0 }, { "cite": "164 N.C. App. 615", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8899642 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "622", "parenthetical": "\" 'Statements in affidavits as to opinion, belief, or conclusions of law are of no effect.' \" (quoting 3 Am. Jur. 2d, Affidavits \u00a7 13 (2002))" }, { "page": "622" }, { "page": "622" } ], "opinion_index": 0, "case_paths": [ "/nc-app/164/0615-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 25-3-110", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 2009, "pin_cites": [ { "page": "(c)", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 25", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "opinion_index": 0 }, { "cite": "239 S.E.2d 637", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "638" } ], "opinion_index": 0 }, { "cite": "34 N.C. App. 724", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551887 ], "year": 1977, "pin_cites": [ { "page": "726" } ], "opinion_index": 0, "case_paths": [ "/nc-app/34/0724-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 25-3-203", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "271 S.E.2d 54", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1980, "pin_cites": [ { "page": "57" }, { "page": "57" }, { "page": "57", "parenthetical": "concluding that where the defendants produced a copy of the note indorsed to an entity other than the plaintiff, the \"defendants established that plaintiff was not the owner or holder of the note\"" } ], "opinion_index": 0 }, { "cite": "301 N.C. 200", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564678 ], "weight": 3, "year": 1980, "pin_cites": [ { "page": "203" }, { "page": "203" }, { "page": "204" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0200-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 25-1-201", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2009, "pin_cites": [ { "page": "(b)(21)" }, { "page": "(b)(27)" } ], "opinion_index": 0 }, { "cite": "246 S.E.2d 801", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "804-05" } ], "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": "248 S.E.2d 385", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "388" }, { "page": "387" } ], "opinion_index": 0 }, { "cite": "38 N.C. App. 525", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554858 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "528" }, { "page": "527" } ], "opinion_index": 0, "case_paths": [ "/nc-app/38/0525-01" ] }, { "cite": "432 S.E.2d 855", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "859", "parenthetical": "citations and internal quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "334 N.C. 369", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2530097 ], "year": 1993, "pin_cites": [ { "page": "375", "parenthetical": "citations and internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0369-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 45-21.34", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "pin_cites": [ { "parenthetical": "stating that a party with a legal or equitable interest in the subject property may apply to a superior court judge to enjoin a sale of the property upon legal or equitable grounds" } ], "opinion_index": 0 }, { "cite": "683 F.2d 444", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 533841, 3633193 ], "year": 1982, "pin_cites": [ { "page": "447" } ], "opinion_index": 0, "case_paths": [ "/f2d/683/0444-01", "/us-app-dc/221/0125-01" ] }, { "cite": "486 F.3d 815", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 3116179 ], "year": 2007, "pin_cites": [ { "page": "819", "parenthetical": "\" '[Although the right to rescind [under the TILA] is [statutory], it remains an equitable doctrine subject to equitable considerations.' \" (quoting Brown v. Nat'l Permanent Fed. Sav. & Loan Ass'n, 683 F.2d 444, 447 (D.C. Cir. 1982)" } ], "opinion_index": 0, "case_paths": [ "/f3d/486/0815-01" ] }, { "cite": "591 S.E.2d 905", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "913" } ], "opinion_index": 0 }, { "cite": "162 N.C. App. 549", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8918883 ], "year": 2004, "pin_cites": [ { "page": "561" } ], "opinion_index": 0, "case_paths": [ "/nc-app/162/0549-01" ] }, { "cite": "12 C.F.R. \u00a7 226.1", "category": "laws:admin_compilation", "reporter": "C.F.R.", "opinion_index": 0 }, { "cite": "15 U.S.C. \u00a7\u00a7 1601", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 }, { "cite": "306 S.E.2d 123", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 13, "year": 1983, "pin_cites": [ { "page": "124", "parenthetical": "same" }, { "page": "125" }, { "page": "125" }, { "page": "125" }, { "page": "124" }, { "page": "124" }, { "page": "125" }, { "page": "124-25" }, { "page": "125-26" }, { "page": "125", "parenthetical": "\"It is the fact of possession which is significant in determining whether a person is a holder, and the absence of possession defeats that status.\"" }, { "page": "125" } ], "opinion_index": 0 }, { "cite": "63 N.C. App. 547", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525742 ], "weight": 7, "year": 1983, "pin_cites": [ { "page": "549", "parenthetical": "same" }, { "page": "550" }, { "page": "551" }, { "page": "551" }, { "page": "550" }, { "page": "550" }, { "page": "551" } ], "opinion_index": 0, "case_paths": [ "/nc-app/63/0547-01" ] }, { "cite": "247 S.E.2d 427", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1978, "pin_cites": [ { "page": "428", "parenthetical": "noting upon the appeal of a N.C. Gen. Stat. \u00a7 45-21.16 special proceeding the trial court's conclusions of law included the existence of a valid debt, the right to foreclose under the deed of trust, and proper notice to the mortgagors" }, { "page": "429" } ], "opinion_index": 0 }, { "cite": "38 N.C. App. 90", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552093 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "92", "parenthetical": "noting upon the appeal of a N.C. Gen. Stat. \u00a7 45-21.16 special proceeding the trial court's conclusions of law included the existence of a valid debt, the right to foreclose under the deed of trust, and proper notice to the mortgagors" }, { "page": "94" } ], "opinion_index": 0, "case_paths": [ "/nc-app/38/0090-01" ] }, { "cite": "189 N.C. App. 80", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4157090 ], "year": 2008, "pin_cites": [ { "page": "88", "parenthetical": "citing In re Helms, 127 N.C. App. at 510, 491 S.E.2d at 675" } ], "opinion_index": 0, "case_paths": [ "/nc-app/189/0080-01" ] }, { "cite": "290 S.E.2d 653", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "657-58" } ], "opinion_index": 0 }, { "cite": "305 N.C. 446", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571060 ], "year": 1982, "pin_cites": [ { "page": "452" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0446-01" ] }, { "cite": "491 S.E.2d 672", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1997, "pin_cites": [ { "page": "675" }, { "parenthetical": "citations omitted" }, { "page": "675" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 505", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11798267 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "510" }, { "page": "510" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0505-01" ] }, { "cite": "535 S.E.2d 388", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "392" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 45", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12121503 ], "year": 2000, "pin_cites": [ { "page": "50" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0045-01" ] }, { "cite": "693 S.E.2d 705", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2010, "pin_cites": [ { "page": "708", "parenthetical": "quoting In re Foreclosure of Azalea Garden Bd. & Care, Inc., 140 N.C. App. 45, 50, 535 S.E.2d 388, 392 (2000)" }, { "page": "709" }, { "page": "709" }, { "page": "710" } ], "opinion_index": 0 }, { "cite": "681 S.E.2d 456", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2009, "pin_cites": [ { "page": "458" } ], "opinion_index": 0 }, { "cite": "199 N.C. App. 293", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4170111 ], "year": 2009, "pin_cites": [ { "page": "295-96" } ], "opinion_index": 0, "case_paths": [ "/nc-app/199/0293-01" ] }, { "cite": "15 U.S.C. \u00a7 1635", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 45-21.16", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 10, "year": 2009, "pin_cites": [ { "page": "(d)" }, { "page": "(d)(i)", "parenthetical": "requiring, inter alia, that the clerk of court must determine that a valid debt exists" }, { "page": "(d)", "parenthetical": "in order for the foreclosure to proceed, the clerk of court must find, inter alia, the existence of a \"valid debt of which the party seeking to foreclose is the holder,\" and a \"right to foreclose under the instrument\" securing the debt" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1167, "char_count": 35228, "ocr_confidence": 0.706, "pagerank": { "raw": 4.1770767929779264e-07, "percentile": 0.912416901525919 }, "sha256": "a75f1b298219ee8ad4b1539cc8fc8f706c71a6e10cd9930b07ca1ae7c5722152", "simhash": "1:1b93d86258ea3c96", "word_count": 5878 }, "last_updated": "2023-07-14T21:31:50.212435+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and BEASLEY concur." ], "parties": [ "IN THE MATTER OF THE FORECLOSURE BY DAVID A. SIMPSON, P.C., SUBSTITUTE TRUSTEE, OF A DEED OF TRUST EXECUTED BY REX T. GILBERT, JR. AND DANIELA L. GILBERT, HUSBAND AND WIFE, DATED MAY 5, 2006 AND RECORDED ON MAY 10, 2006, IN BOOK 219 AT PAGE 53 OF THE HYDE COUNTY PUBLIC REGISTRY" ], "opinions": [ { "text": "HUNTER, JR., Robert N., Judge.\nRespondents Rex T. Gilbert, Jr. and his wife Daniela L. Gilbert, appeal from the trial court\u2019s Order authorizing David A. Simpson, P.C., as Substitute Trustee, to proceed with foreclosure under a power of sale in the Deed of Trust recorded in Book 219 at Page 53 in the Hyde County Register of Deeds. We reverse.\nI. Factual and Procedural History\nOn 5 May 2006, Respondent Rex T. Gilbert, Jr. executed an adjustable rate note (\u201cthe Note\u201d) to refinance an existing mortgage on his home. According to the terms of the Note, Mr. Gilbert promised to pay a principal amount of $525,000.00 plus interest to First National Bank of Arizona. The Note was secured by a Deed of Trust, executed by Mr. Gilbert and his wife, Daniela L. Gilbert, on real property located at 134 West End Road, Ocracoke, North Carolina. The Deed of Trust identified First National Bank of Arizona as the lender and Matthew J. Ragaller of Casey, Grimsley & Ragaller, PLLC as the trustee.\nThe record reveals that, during 2008, Respondents ceased making payments on the Note and made an unsuccessful attempt to negotiate a modification of the loan. On 9 March 2009, a Substitution of Trustee was recorded in the Hyde County Register of Deeds, which purports to remove Matthew Ragaller as the trustee of the Deed of Trust and appoint his successor, David A. Simpson, P.C. (\u201cSubstitute Trustee\u201d). The Substitution of Trustee identified Deutsche Bank Trust Company Americas as Trustee for Residential Accredit Loans, Inc. Series 2006-QA6 (\u201cPetitioner\u201d) as the holder of the Note and the lien created by the Deed of Trust.\nOn 12 March 2009, the Substitute Trustee commenced this action by filing a Notice of Hearing on Foreclosure of Deed of Trust with the Hyde County Clerk of Superior Court pursuant to section 45-21.16 of our General Statutes. N.C. Gen. Stat. \u00a7 45-21.16 (2009). The Notice of Hearing stated, \u201cthe current holder of the foregoing Deed of Trust, and of the debt secured thereby, is: Deutsche Bank Trust Company Americas as Trustee for Residential Accredit Loans, Inc. Series 2006-QA6.\u201d\nIn a letter dated 5 April 2009, Mr. Gilbert purported to exercise his right to rescind the loan transaction he entered into with the original lender, First National Bank of Arizona, pursuant to the federal Truth in Lending Act, 15 U.S.C. \u00a7 1635. As justification for his purported rescission, Gilbert alleged that the Truth in Lending Disclosure Statement provided by First National Bank of Arizona failed to accurately provide all required material disclosures including, inter alia, the correct annual percentage rate and payment schedule. The Substitute Trustee responded with a letter from GMAC ResCap, in which it denied any material disclosure errors were made and refused to rescind the loan transaction.\nThe foreclosure hearing was held on 2 June 2009 before the Clerk of Superior Court of Hyde County. The Honorable Sharon G. Sadler entered an Order on 17 June 2009, permitting the Substitute Trustee to proceed with the foreclosure. In the Order, the Clerk specifically found, inter alia, that Petitioner was the holder of the Note and Deed of Trust that it sought to foreclose and the Note evidenced a valid debt owed by Mr. Gilbert. Respondents appealed the Order to superior court.\nThe matter came on for a de novo hearing on 18 August 2009 before the Honorable Marvin K. Blount, III, in Hyde County Superior Court. During the hearing, the trial court admitted into evidence a certified copy of the Note and the Deed of Trust and two affidavits attesting to the validity of Gilbert\u2019s indebtedness pursuant to the Note, and that Deutsche Bank Trust Company Americas as Trustee for Residential Accredit Loans, Inc. Series 2006-QA6 is the current owner and holder of the Note. Additionally, Petitioner introduced the original Note and Allonge for the trial court\u2019s inspection.\nReviewing the record before this Court, the Allonge contains a series of indorsements evidencing the alleged assignments of the Note, as follows:\nPAY TO THE ORDER OF:\nFirst National Bank of Nevada\nWITHOUT RECOURSE BY:\n[Signature!\nAMY HAWKINS, ASSISTANT VICE PRESIDENT\nFIRST NATIONAL BANK OF ARIZONA\nPay to the order of:\nRESIDENTIAL FUNDING CORPORATION\nWithout Recourse\nFIRST NATIONAL BANK OF NEVADA\nBv: [Signature!\nDeutsche Bank National Trust\nCompany, F/K/A Bankers Trust\nCompany of California, N.A.\nas Custodian as Attorney in Fact [Illegible Name and Title]\nPAY TO THE ORDER OF\nDeutsche Bank Trust Company Americas as Trustee\nWITHOUT RECOURSE\nResidential Funding Corporation\nBY [Signature!\nJudy Faber, Vice President\nRespondents made two arguments at the hearing. First, Respondents argued that the debt evidenced by the Note no longer existed, as Mr. Gilbert had rescinded the transaction for the loan with First National Bank of Arizona. Petitioner objected to Respondents\u2019 rescission argument as being a defense in equity and, as such, inadmissible in a proceeding held pursuant to N.C. Gen. Stat. \u00a7 45-21.16. The trial court agreed and refused to let Respondents\u2019 expert witness testify as to alleged material errors in the Truth in Lending Disclosure Statement, which Mr. Gilbert alleged permitted him the right to rescind the loan. Second, Respondents argued that Petitioner had not produced sufficient evidence to establish that Deutsche Bank Trust Company Americas as Trustee for Residential Accredit Loans, Inc. Series 2006-QA6 was the holder of the Note.\nBased on the preceding evidence, the trial court entered an order on 18 August 2009 in which it found, inter alia: Mr. Gilbert executed the Note and, with his wife, executed a Deed of Trust in favor of First National Bank of Arizona, secured by the real property described in the Deed of Trust; a valid debt exists and is owed by Gilbert to Petitioner; Gilbert is in default under the Note and Deed of Trust; proper notice of the foreclosure hearing was given to all parties as required by N.C. Gen. Stat. \u00a7 45-21.16; Petitioner was the current holder of the Note and the Deed of Trust. The trial court concluded as a matter of law that the requirements of N.C. Gen. Stat. \u00a7 45-21.16 had been satisfied. Based on these findings and conclusion of law, the trial court authorized the Substitute Trustee to proceed with the foreclosure. Respondents timely entered notice of appeal.\nII. Analysis\nA party seeking permission from the clerk of court to proceed with a foreclosure pursuant to a power of sale contained in a deed of trust must prove the following statutory requirements: (1) the party seeking foreclosure is the holder of a valid debt, (2) default on the debt by the debtor, (3) the deed of trust provides the right to foreclose, (4) proper notice was given to those parties entitled to notice pursuant to section 45-21.16(b). N.C. Gen. Stat. \u00a7 45-21.16(d) (2009). The General Assembly added a fifth requirement, which expired 31 October 2010: \u201cthat the underlying mortgage debt is not a subprime loan,\u201d or, if it is a subprime loan, \u201cthat the pre-foreclosure notice under G.S. 45-102 was provided in all material respects, and that the periods of time established by Article 11 of this Chapter have elapsed[.]\u201d Id. The role of the clerk of court is limited to making a determination on the matters specified by section 45-21.16(d). See Mosler ex rel. Simon v. Druid Hills Land Co., Inc., 199 N.C. App. 293, 295-96, 681 S.E.2d 456, 458 (2009). If the clerk\u2019s order is appealed to superior court, that court\u2019s de novo hearing is limited to making a determination on the same issues as the clerk of court. See id.\nThe trial court\u2019s order authorizing the foreclosure to proceed was a final judgment of the superior court, therefore, this Court has jurisdiction to hear the instant appeal. N.C. Gen. Stat. \u00a7 7A-27(b) (2009). Our standard of review for this appeal, where the trial court sat without a jury, is \u201c \u2018whether competent evidence exists to support the trial court\u2019s findings of fact and whether the conclusions reached were proper in light of the findings.\u2019 \u201d In re Adams, \u2014 N.C. App. \u2014, \u2014 , 693 S.E.2d 705, 708 (2010) (quoting In re Foreclosure of Azalea Garden Bd. & Care, Inc., 140 N.C. App. 45, 50, 535 S.E.2d 388, 392 (2000)).\nWe note the trial court classified multiple conclusions of law as \u201cfindings of fact.\u201d We have previously recognized \u201c[t]he classification of a determination as either a finding of fact or a conclusion of law is admittedly difficult.\u201d In re Helms, 127 N.C. App. 505, 510, 491 S.E.2d 672, 675 (1997). Generally, \u201cany determination requiring the exercise of judgment or the application of legal principles is more properly classified a conclusion of law.\u201d Id. (citations omitted). Any determination made by \u201c \u2018logical reasoning from the evidentiary facts,\u2019 \u201d however, \u201cis more properly classified a finding of fact.\u201d Id. (quoting Quick v. Quick, 305 N.C. 446, 452, 290 S.E.2d 653, 657-58 (1982)). When this Court determines that findings of fact and conclusions of law have been mislabeled by the trial court, we may reclassify them, where necessary, before applying our standard of review. N. C. State Bar v. Key, 189 N.C. App. 80, 88, 658 S.E.2d 493, 499 (2008) (citing In re Helms, 127 N.C. App. at 510, 491 S.E.2d at 675).\nLooking to the trial court\u2019s Order, we conclude that the following \u201cfindings of fact\u201d are determinations that required the application of legal principles and are more appropriately classified as conclusions of law: a valid debt exists and is owed to Deutsche Bank Trust Company Americas as Trustee for Residential Accredit Loans, Inc. Series 2006-QA6; proper notice was given to and received by all parties as required by N.C. Gen. Stat. \u00a7 45-21.16 and the Rules of Civil Procedure; Deutsche Bank Trust Company Americas as Trustee for Residential Accredit Loans, Inc. Series 2006-QA6 is the current owner and holder of the Note and Deed of Trust. See In re Watts, 38 N.C. App. 90, 92, 247 S.E.2d 427, 428 (1978) (noting upon the appeal of a N.C. Gen. Stat. \u00a7 45-21.16 special proceeding the trial court\u2019s conclusions of law included the existence of a valid debt, the right to foreclose under the deed of trust, and proper notice to the mortgagors); see also Connolly v. Potts, 63 N.C. App. 547, 549, 306 S.E.2d 123, 124 (1983) (same). In light of this reclassification of the trial court\u2019s findings of fact and conclusions of law, we turn to the issues raised on appeal.\n1. Rescission of the Loan Transaction\nRespondents raise several arguments alleging the trial court erred by refusing to consider their defense to the foreclosure action, that the debt Petitioner sought to foreclose was not a valid debt\u2014 a required element under the statute for foreclosure by power of sale. See N.C. Gen. Stat. \u00a7 45-21.16(d)(i) (requiring, inter alia, that the clerk of court must determine that a valid debt exists). Respondents contend the debt is not valid because Mr. Gilbert rescinded the transaction by which he obtained the loan from First National Bank of Arizona pursuant to the federal Truth in Lending Act (\u201cTILA\u201d), 15 U.S.C. \u00a7\u00a7 1601-1667\u00cd, and the Federal Reserve Board\u2019s Regulation Z, 12 C.F.R. \u00a7 226.1-.58. We conclude the trial court did not err.\nThe admissibility of evidence in the trial court is based upon that court\u2019s sound discretion and may be disturbed on appeal only upon a finding that the decision was based on an abuse of discretion. Gibbs v. Mayo, 162 N.C. App. 549, 561, 591 S.E.2d 905, 913 (2004). Here, we conclude the trial court properly refused to consider Respondents\u2019 evidence of rescission. Rescission under the TILA is an equitable remedy. See Am. Mortg. Network, Inc. v. Shelton, 486 F.3d 815, 819 (4th Cir. 2007) (\u201c \u2018[Although the right to rescind [under the TILA] is [statutory], it remains an equitable doctrine subject to equitable considerations.\u2019 \u201d (quoting Brown v. Nat\u2019l Permanent Fed. Sav. & Loan Ass\u2019n, 683 F.2d 444, 447 (D.C. Cir. 1982)). While legal defenses to a foreclosure under a power of sale are properly raised in a hearing held pursuant to section 45-21.16, equitable defenses are not. Watts, 38 N.C. App. at 94, 247 S.E.2d at 429. As we have previously stated, a hearing under section 45-21.16 is \u201cnot intended to settle all matters in controversy between mortgagor and mortgagee, nor was it designed to provide a second procedure for invoking equitable relief.\u201d Id. A party seeking to raise an equitable defense may do so in a separate civil action brought in superior court under section 45-21.34. Id.; N.C. Gen. Stat. \u00a7 45-21.34 (2009) (stating that a party with a legal or equitable interest in the subject property may apply to a superior court judge to enjoin a sale of the property upon legal or equitable grounds). Accordingly, the trial court properly concluded Respondents\u2019 argument that Mr. Gilbert had rescinded the loan transaction, invaliding the debt Petitioner sought to foreclose, was an equitable defense and not properly before the trial court Respondents\u2019 argument is without merit.\n2. Evidence that Petitioner was the Owner and Holder of Mr. Gilbert\u2019s Promissory Note\nRRespondents also argue the trial court erred in ordering the foreclosure to proceed, as Petitioner did not prove that it was the holder of the Note with the right to foreclose under the instrument as required by section 45-21.16(d)(i) and (iii). We agree.\nA \u201cforeclosure under a power of sale is not favored in the law and itsexercise will be watched with jealousy.\u201d In re Foreclosure of Goforth Props., Inc., 334 N.C. 369, 375, 432 S.E.2d 855, 859 (1993) (citations and internal quotation marks omitted). That the party seeking to foreclose on a promissory note is the holder of said note is an essential element of the action and the debtor is \u201centitled to demand strict proof of this element.\u201d Liles v. Myers, 38 N.C. App. 525, 528, 248 S.E.2d 385, 388 (1978).\nFor the trial court to find sufficient evidence that Petitioneris the holder of a valid debt in accordance with section 45-21.16(d), \u201cthis Court has determined that the following two questions must be answered in the affirmative: (1) \u2018is there sufficient competent evidence of a valid debt?\u2019; and (2) \u2018is there sufficient competent evidence that [the party seeking to foreclose is] the holder[] of the notes [that evidence that debt]?\u2019 \u201d Adams, \u2014 N.C. App. at \u2014, 693 S.E.2d at 709 (quoting In re Cooke, 37 N.C. App. 575, 579, 246 S.E.2d 801, 804-05 (1978)); see N.C. Gen. Stat. \u00a7 45-21.16(d) (2009) (in order for the foreclosure to proceed, the clerk of court must find, inter alia, the existence of a \u201cvalid debt of which the party seeking to foreclose is the holder,\u201d and a \u201cright to foreclose under the instrument\u201d securing the debt) (emphasis added).\nEstablishing that a party is the holder of the note is essential to protect the debtor from the threat of multiple judgments on the same note.\nIf such proof were not required, the plaintiff could negotiate the instrument to a third party who would become a holder in due course, bring a suit upon the note in her own name and obtain a judgment in her favor... . Requiring proof that the plaintiff is the holder of the note at the time of her suit reduces the possibility of such an inequitable occurrence.\nLiles, 38 N.C. App. at 527, 248 S.E.2d at 387.\nWe have previously determined that the definition of \u201cholder\u201d under the Uniform Commercial Code (\u201cUCC\u201d), as adopted by North Carolina, controls the meaning of the term as it used in section 45-21.16 of our General Statutes for foreclosure actions under a power of sale. See Connolly, 63 N.C. App. at 550, 306 S.E.2d at 125; Adams,-N.C. App. at \u2014, 693 S.E.2d at 709. Our General Statutes define the \u201cholder\u201d of an instrument as \u201c[t]he person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession.\u201d N.C. Gen. Stat. \u00a7 25-1-201(b)(21) (2009); Econo-Travel Motor Hotel Corp. v. Taylor, 301 N.C. 200, 203, 271 S.E.2d 54, 57 (1980). Furthermore, a \u201c \u2018[p]erson\u2019 means an individual, corporation, business trust, estate, trust... or any other legal or commercial entity.\u201d N.C. Gen. Stat. \u00a7 25-1-201(b)(27) (2009).\nAs addressed above, we conclude the trial court properly found that a valid debt existed. The remaining issue before this Court is whether there was competent evidence that Petitioner was the holder of the Note that evidences Mr. Gilbert\u2019s debt.\nIn support of its argument that it provided competent evidence to support the trial court\u2019s findings, Petitioner first points to its production of the original Note with the Allonge at the de novo hearing, as well as its introduction into evidence true and accurate copies of the Note and Allonge. Petitioner asserts this evidence \u201cplainly evidences the transfers\u201d of the Note to Petitioner. We cannot agree.\nUnder the UCC, as adopted by North Carolina, \u201c[a]n instrument is transferred when it is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument.\u201d N.C. Gen. Stat. \u00a7 25-3-203(a) (2009). Production of an original note at trial does not, in itself, establish that the note was transferred to the party presenting the note with the purpose of giving that party the right to enforce the instrument, as demonstrated in Connolly, 63 N.C. App. at 551, 306 S.E.2d at 125, and Smathers v. Smathers, 34 N.C. App. 724, 726, 239 S.E.2d 637, 638 (1977) (holding that despite evidence of voluntary transfer of promissory notes and the plaintiff\u2019s possession thereof, the plaintiff was not the holder of the note under the UCC as the notes were not drawn, issued, or indorsed to her, to bearer, or in blank. \u201c[T]he plaintiff testified to some of the circumstances under which she obtained possession of the notes, but the trial court made no findings of fact with respect thereto.\u201d)\nIn Connolly, determining who had possession of the note became the critical question for the foreclosure proceeding. 63 N.C. App. at 551, 306 S.E.2d at 125. Several years prior to the foreclosure proceedings at issue in Connolly, the petitioners obtained a loan from a bank and pledged as collateral a promissory note that was payable to the petitioners by assigning and delivering the note to the bank. Id. at 549, 306 S.E.2d at 124. After obtaining their loan, the petitioners sought to foreclose on the promissory note and deed of trust, which was in the bank\u2019s possession, but were denied at the special proceeding before the clerk of court. Id. at 548, 306 S.E.2d at 124. The petitioners appealed the decision to superior court. Id. During the de novo hearing, the petitioners testified their loan to the bank had been paid, but \u201cthey had left the [] note at the bank, for security purposes.\u201d Id. at 551, 306 S.E.2d at 125. The petitioners, however, \u201cintroduced the originals of the note and deed of trust\u201d during the hearing. Id. The trial court found the bank was in possession of the note and concluded, as a matter of law, the petitioners were not the holders of the note at the institution of the foreclosure proceedings; the foreclosure was again denied. Connolly, 63 N.C. App. at 550, 306 S.E.2d at 124-25. On appeal, this Court concluded that despite the fact that the party seeking foreclosure introduced the original note at the time of the de novo hearing, the trial court\u2019s findings of fact did not address whether the petitioners were in possession of the note at the time of the trial; the trial court\u2019s judgment was vacated and remanded. Id. at 551, 306 S.E.2d at 125-26.\nSimilarly, here, the trial court\u2019s findings of fact do not address who had possession of Mr. Gilbert\u2019s note at the time of the de novo hearing. Without a determination of who has physical possession of the Note, the trial court cannot determine, under the UCC, the entity that is the holder of the Note. See N.C. Gen. Stat. \u00a7 25-l-201(b)(21) (defining \u201cholder\u201d as \u201cthe person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession\u201d) (emphasis added); Connolly, 63 N.C. App. at 550, 306 S.E.2d at 125 (\u201cIt is the fact of possession which is significant in determining whether a person is a holder, and the absence of possession defeats that status.\") (emphasis added). Accordingly, the trial court\u2019s findings of fact do not support the conclusion of law that Petitioner is the holder of Mr. Gilbert\u2019s note.\nAssuming arguendo that production of the Note was evidence of a transfer of the Note pursuant to the UCC and that Petitioner was in possession of the Note, this is not sufficient evidence that Petitioner is the \u201cholder\u201d of the Note. As discussed in detail below, the Note was not indorsed to Petitioner or to bearer, a prerequisite to confer upon Petitioner the status of holder under the UCC. See N.C. Gen. Stat. \u00a7 25-l-201(b)(21) (requiring that, to be a holder, a person must be in possession of the note payable to bearer or to the person in possession of the note). \u201c \u2018[M]ere possession\u2019 of a note by a party to whom the note has neither been indorsed nor made payable \u2018does not suffice to prove ownership or holder status.\u2019 \u201d Adams,-N.C. App. at-, 693 S.E.2d at 710 (quoting Econo-Travel Motor Hotel Corp., 301 N.C. at 203, 271 S.E.2d at 57).\nPetitioner acknowledges that following the signing of the Note by Mr. Gilbert, the Note was sequentially assigned to several entities, as indicated by the series of indorsements on the Allonge, reprinted above. Respondents argue these indorsements present two problems. First, Respondents state that Petitioner did not provide any evidence to establish that Deutsche Bank National Trust Company had the authority, as the attorney-in-fact for First National Bank of Nevada, to assign the Note to Residential Funding Corporation in the second assignment. Respondents make no argument \u2014 and cite no authority to establish \u2014 that such evidence is needed. Therefore, we do not address the merits of this alleged error and deem it abandoned. See N.C. R. App. P. 28(6) (2011) (\u201cIssues not presented in a party\u2019s brief, or in support of which no reason or argument is stated, will be taken as abandoned.\u201d)\nSecond, Respondents argue Petitioner has not offered sufficient evidence that Deutsche Bank Trust Company Americas as Trustee for Residential Accredit Loans, Inc. Series 2006-QA6 was the holder of the Note and, thus, the party entitled to proceed with the foreclosure action. We agree.\nRespondents note the third and final assignment on the Allonge was made to \u201cDeutsche Bank Trust Company Americas as Trustee,\u201d which is not the party asserting a security interest in Respondents\u2019 property; this action was brought by Deutsche Bank Trust Company Americas as Trustee for Residential Accredit Loans, Inc. Series 2006-QA6, the entity the trial court found to be the owner and holder of the Note. Section 3-110 of the UCC, as codified in our General Statutes, states in pertinent part:\nFor the purpose of determining the holder of an instrument, the following rules apply:\n(2) If an instrument is payable to (i) a trust, an estate, or a person described as trustee or representative of a trust or estate, the instrument is payable to the trustee, the representative, or a successor of either, whether or not the beneficiary or estate is also named....\nN.C. Gen. Stat. \u00a7 25-3-110(c) (2009) (emphasis added). Additionally, the official comments to this section of the UCC state, in part, \u201cThis, provision merely determines who can deal with an instrument as a holder. It does not determine ownership of the instrument or its proceeds.\u201d Id. \u00a7 25-3-110, Official Comment 3.\nIn the present case, the Note is clearly indorsed \u201cPAY TO THE ORDER OF Deutsche Bank Trust Company Americas as Trustee.\u201d Thus, pursuant to section 25-3-110(c)(2), the Note is payable to Deutsche Bank Trust Company Americas as Trustee. See Id. Because the indorsement does not identify Petitioner and is not indorsed in blank or to bearer, it cannot be competent evidence that Petitioner is the holder of the Note. See N.C. Gen. Stat. \u00a7 25-l-201(b)(21) (defining \u201cholder\u201d as \u201c[t]he person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession\u201d^; Econo-Travel Motor Hotel Corp., 301 N.C. at 204, 271 S.E.2d at 57 (concluding that where the defendants produced a copy of the note indorsed to an entity other than the plaintiff, the \u201cdefendants established that plaintiff was not the owner or holder of the note\u201d).\nIn addition to the Note and Allonge, Petitioner points to two affidavits provided by two GMAC Mortgage employees as further evidence that the trial court\u2019s findings are based on sufficient competent evidence. Again, we disagree.\nThe first affidavit is an Affidavit of Indebtedness by Jeffrey Stephan (\u201cStephan\u201d). In his affidavit, Stephan averred, inter alia, he was a limited signing officer for GMAC Mortgage, the sub-servicer of Mr. Gilbert\u2019s loan, and as such, was \u201cfamiliar with the books and records of [GMAC Mortgage], specifically payments made pursuant to the Note and Deed of Trust.\u201d Accordingly, Stephan testified as to the principal amount of Mr. Gilbert\u2019s loan and to his history of loan payments. Stephan further testified that after the Note and Deed of Trust were executed they were \u201cdelivered\u201d to the original lender, First National Bank of Arizona; the original lender then \u201cassigned and transferred all of its right, title and interest\u201d to First National Bank of Nevada, which, in turn, assigned all its rights, title, and interest in the instruments to Residential Funding Corporation. The final assignment to which Stephan averred is an assignment and securitization of the Note and Deed of Trust from Residential Funding Corporation to \u201cDeutsche Bank Trust Company Americas as Trustee.\u201d Stephan then makes the conclusory statement, \u201cDeutsche Bank Trust Company Americas as Trustee for Residential Accredit Loans, Inc. Series 2006-QA6 is the current owner and holder of the Note and Deed of Trust described herein.\u201d\nWhether Deutsche Bank Trust Company Americas as Trustee for Residential Accredit Loans, Inc. Series 2006-QA6 is the owner and holder of the Note and Deed of Trust is a legal conclusion that is to be determined by a court of law on the basis of factual allegations. As such, we disregard Stephan\u2019s conclusion as to the identity of the \u201cowner and holder\u201d of the instruments. See Lemon v. Combs, 164 N.C. App. 615, 622, 596 S.E.2d 344, 349 (2004) (\u201c \u2018Statements in affidavits as to opinion, belief, or conclusions of law are of no effect.\u2019 \u201d (quoting 3 Am. Jur. 2d, Affidavits \u00a7 13 (2002))); see also Speedway Motorsports Int\u2019l Ltd. v. Bronwen Energy Trading, Ltd.,-N.C. App.-, \u2014 n.2, \u2014 S.E.2d-,-n.2, slip op. at 12 n.2, No. 09-1451 (Feb. 15, 2011) (rejecting a party\u2019s contention that this Court must accept as true all statements found in the affidavits in the record, stating, \u201cour standard of review does not require that we accept a witness\u2019 characterization of what \u2018the facts\u2019 mean\u201d). While Stephan referred to a Pooling and Servicing Agreement (\u201cPSA\u201d) that allegedly governs the securitization of the Note to Deutsche Bank Trust Company Americas as Trustee, the PSA was not included in the record and will not be considered by this Court. See N.C. R. App. P. 9(a) (2011) (\u201cIn appeals from the trial division of the General Court of Justice, review is solely upon the record on appeal, the verbatim transcript of proceedings, if one is designated, and any other items filed pursuant to this Rule 9.\u201d) The record is void of any evidence the Note was assigned and securitized to a trust.\nWe also note that Stephan alleged no facts as to who possesses Mr. Gilbert\u2019s note, other than his averment that the Note was \u201cdelivered\u201d to the original lender, First National Bank of Arizona. Stephan referred to a statement made by counsel for GMAC Mortgage that the original Note \u201cwould be brought to the foreclosure hearing,\u201d but he did not provide any facts from which the trial court could determine who has possession of the Note. As demonstrated by Connolly, discussed above, production of a note at trial is not conclusive evidence of possession. 63 N.C. App. at 551, 306 S.E.2d at 125. Thus, we conclude Stephan\u2019s affidavit is not competent evidence to support the trial court\u2019s conclusion that Deutsche Bank Trust Company Americas as Trustee for Residential Accredit Loans, Inc. Series 2006-QA6 is the owner and holder of Mr. Gilbert\u2019s note.\nPetitioner also provided the affidavit of Scott Zeitz (\u201cZeitz\u201d), who alleged in his affidavit to be a litigation analyst for GMAC Mortgage. Zeitz\u2019s basis for his affidavit testimony is that he works with \u201cthe documents that relate to account histories and account balances of particular loans\u201d and that he is familiar with Mr. Gilbert\u2019s account. Accordingly, Zeitz testified to the details of Mr. Gilbert\u2019s loan and the terms of the Note. Zeitz\u2019s affidavit, substantially similar to the affidavit of Jeffrey Stephan, also averred to the transfer of the Note and Deed of Trust through the series of entities indicated on the Allonge, stating in part:\nResidential Funding Corporation sold, assigned and transferred all of its right, title and interest in and to the Note and Deed of Trust to Deutsche Bank Trust Company Americas as Trustee for Residential Accredit Loans, Inc. Series 2006-QA6. This is reflected on the Allonge to the Note, a true and accurate copy of which is attached and incorporated hereto as EXHIBIT 5. (Emphasis added.)\nThis statement is factually incorrect; the Allonge in the record contains no indorsement to Deutsche Bank Trust Company Americas as Trustee for Residential Accredit Loans, Inc. Series 2006-QA6. Zeitz further stated that \u201cDeutsche Bank Trust Company Americas as Trustee for Residential Accredit Loans, Inc. Series 2006-QA6 is the current owner and holder of the Note and Deed of Trust.\u201d This statement is a legal conclusion postured as an allegation of fact and as such will not be considered by this Court. See Lemon, 164 N.C. App. at 622, 596 S.E.2d at 349.\nUnlike Jeffrey Stephan, Zeitz stated that Deutsche Bank Trust Company Americas as Trustee for Residential Accredit Loans, Inc. Series 2Q06-QA6 \u201chas possession of the original Note and Deed of Trust.\u201d We note, however, that \u201c[w]hen an affiant makes a conclusion of fact, it must appear that the affiant.had an opportunity to observe and did observe matters about which he or she testifies.\u201d Lemon, 164 N.C. App. at 622, 596 S.E.2d at 348-49 (quoting 3 Am. Jur. 2d Affidavits \u00a7 13) (internal quotation marks omitted). Moreover,\n[t]he personal knowledge of facts asserted in an affidavit is not presumed from a mere positive averment of facts but rather the court should be shown how the affiant knew or could have known such facts and if there is no evidence from which an inference of personal knowledge can be drawn, then it is presumed that such does not exist.\nId. at 622-23, 596 S.E.2d at 349 (quoting 3 Am. Jur. 2d Affidavits \u00a7 14, cited with approval in Currituck Associates Residential P\u2019ship v. Hollowell, 170 N.C. App. 399, 403-04, 612 S.E.2d 386, 389 (2005)). Thus, while Zeitz concluded as fact that Deutsche Bank Trust Company Americas as Trustee for Residential Accredit Loans, Inc. Series 2006-QA6 has possession of the Note, his affidavit provides no basis upon which we can conclude he had personal knowledge of this alleged fact. Because of these deficiencies, we conclude that neither the affidavit of Jeffrey Stephan nor the affidavit of Scott Zeitz is competent evidence to support the trial court\u2019s finding that Deutsche Bank Trust Company Americas as Trustee for Residential Accredit Loans, Inc. Series 2006-QA6 is the owner and holder of Mr. Gilbert\u2019s note.\nIII. Conclusion\nWe conclude the record is lacking of competent evidence sufficient to support that Petitioner is the owner and holder of Mr. Gilbert\u2019s note and deed of trust. The trial court erred in permitting the Substitute Trustee to proceed with foreclosure proceedings and its order is\nReversed.\nJudges McGEE and BEASLEY concur.\n. During the pendency of this action, the Gilberts filed a separate action against Deutsche Bank Trust Company Americas, Residential Funding, LLC, GMAC Mortgage, LLC, and David A. Simpson, P.C. to litigate, inter alia, their TILA claim in Hyde County Superior Court. The defendants removed the action to federal court. See Gilbert v. Deutsche Bank Trust Co. Americas, slip op. at 1, 4:09-CV-181-D, 2010 WL 2696763 (E.D.N.C. July 7, 2010), reconsideration denied, 2010 WL 4320460 (E.D.N.C. Oct. 19, 2010). Because the Gilberts\u2019 claim was filed more than three years after the loan transaction was completed, the federal trial court dismissed the action for failure to. state a claim upon which relief could be granted. Id. at \u2014, slip op. at 5.\n. This Court finds troubling that GMAC Mortgage, LLC was recently found to have submitted a false affidavit by Signing Officer Jeffrey Stephan in a motion for summary judgment against a mortgagor in the United States District Court of Maine. Judge John H. Rich, III concluded that GMAC Mortgage submitted Stephan\u2019s false affidavit in bad faith and levied sanctions against GMAC Mortgage, stating:\n[T]he attestation to the Stephan affidavit was not, in fact, true; that is, Stephan did not know personally that all of the facts stated in the affidavit were true. .. . GMAC [Mortgage] was on notice that the conduct at issue here was unacceptable to the courts, which rely on sworn affidavits as admissible evidence in connection with motions for summary judgment. In 2006, an identical jurat signed under identical circumstances resulted in the imposition of sanctions against GMAC [Mortgage] in Florida.\nJames v. U.S. Bank Nat. Ass\u2019n, 272 F.R.D. 47, 48 (D. Me. 2011).", "type": "majority", "author": "HUNTER, JR., Robert N., Judge." } ], "attorneys": [ "Katherine S. Parker-Lowe, for respondent-appellants.", "The Law Office of John T. Benjamin, Jr., P.A., by John T. Benjamin, Jr. and James R. White for petitioner-appellee." ], "corrections": "", "head_matter": "IN THE MATTER OF THE FORECLOSURE BY DAVID A. SIMPSON, P.C., SUBSTITUTE TRUSTEE, OF A DEED OF TRUST EXECUTED BY REX T. GILBERT, JR. AND DANIELA L. GILBERT, HUSBAND AND WIFE, DATED MAY 5, 2006 AND RECORDED ON MAY 10, 2006, IN BOOK 219 AT PAGE 53 OF THE HYDE COUNTY PUBLIC REGISTRY\nNo. COA10-361\n(Filed 3 May 2011)\n1. Mortgages and Deeds of Trust\u2014 foreclosure \u2014 debt\u2014 evidence of rescission \u2014 properly excluded\nThe trial court did not err in a foreclosure case by refusing to consider respondents\u2019 defense that the debt petitioner sought to foreclose was not a valid debt. The trial court properly refused to consider respondents\u2019 evidence of rescission because rescission is an equitable remedy which is not properly raised in a hearing held pursuant to N.C.G.S. \u00a7 45-21.16.\n2. Mortgages and Deeds of Trust\u2014 foreclosure \u2014 petitioner not holder of note\nThe trial court erred in ordering the foreclosure of respondents\u2019 house to proceed as petitioner did not prove that it was the holder of the note with the right to foreclose under the instrument as required by \u00a7 45-21.16(d)(i) and (iii).\nAppeal by Respondents from order entered 18 August 2009 by Judge Marvin K. Blount, III in Hyde County Superior Court. Heard in the Court of Appeals 12 October 2010.\nKatherine S. Parker-Lowe, for respondent-appellants.\nThe Law Office of John T. Benjamin, Jr., P.A., by John T. Benjamin, Jr. and James R. White for petitioner-appellee." }, "file_name": "0483-01", "first_page_order": 491, "last_page_order": 505 }