{ "id": 4243837, "name": "IN THE MATTER OF THE FORECLOSURE OF A DEED OF TRUST EXECUTED BY TIMOTHY W. RAYNOR AND NICOLE W. RAYNOR DATED JUNE 12, 2008, RECORDED IN BOOK 5323, PAGE 2749, NEW HANOVER COUNTY REGISTRY", "name_abbreviation": "In re the Foreclosure of a Deed of Trust Executed by Raynor", "decision_date": "2013-08-20", "docket_number": "No. COA12-1116", "first_page": "12", "last_page": "19", "citations": [ { "type": "official", "cite": "229 N.C. App. 12" } ], "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": "2013 WL 1452933", "category": "reporters:specialty_west", "reporter": "WL", "year": 2013, "opinion_index": 0 }, { "cite": "500 S.E.2d 446", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "129 N.C. App. 534", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11651392 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc-app/129/0534-01" ] }, { "cite": "711 S.E.2d 165", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "opinion_index": 0 }, { "cite": "211 N.C. App. 483", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 3805711 ], "year": 2011, "opinion_index": 0, "case_paths": [ "/nc-app/211/0483-01" ] }, { "cite": "424 S.E.2d 385", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "333 N.C. 221", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2550066 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/333/0221-01" ] }, { "cite": "642 S.E.2d 485", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2007, "opinion_index": 0 }, { "cite": "182 N.C. App. 499", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8173668 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc-app/182/0499-01" ] }, { "cite": "306 S.E.2d 123", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "63 N.C. App. 547", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525742 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/63/0547-01" ] }, { "cite": "677 F.3d 1113", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 3871351 ], "year": 2012, "pin_cites": [ { "page": "1116-17", "parenthetical": "\"[Plaintiff] lacks standing to pursue his breach of contract, breach of implied duty of good faith and fair dealing, and promissory estoppel claims insofar as they are premised on an alleged breach of Chase's HAMP obligations.\"" } ], "opinion_index": 0, "case_paths": [ "/f3d/677/1113-01" ] }, { "cite": "673 F.3d 547", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 3741891 ], "year": 2012, "pin_cites": [ { "page": "581", "parenthetical": "\"The absence of a private right of action from a federal statute provides no reason to dismiss a claim under a state law just because it refers to or incorporates some element of the federal law.\"" } ], "opinion_index": 0, "case_paths": [ "/f3d/673/0547-01" ] }, { "cite": "714 F.3d 769", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 5868484 ], "year": 2013, "opinion_index": 0, "case_paths": [ "/f3d/714/0769-01" ] }, { "cite": "306 S.E.2d 513", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1983, "pin_cites": [ { "page": "515" }, { "page": "515" } ], "opinion_index": 0 }, { "cite": "63 N.C. App. 708", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526143 ], "year": 1983, "pin_cites": [ { "page": "711-12" } ], "opinion_index": 0, "case_paths": [ "/nc-app/63/0708-01" ] }, { "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. App.", "case_ids": [ 8552093 ], "year": 1978, "pin_cites": [ { "page": "94" } ], "opinion_index": 0, "case_paths": [ "/nc-app/38/0090-01" ] }, { "cite": "330 S.E.2d 219", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "222", "parenthetical": "citing In re Watts, 38 N.C. App. 90, 94, 247 S.E.2d 427, 429 (1978)" } ], "opinion_index": 0 }, { "cite": "75 N.C. App. 127", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525118 ], "year": 1985, "pin_cites": [ { "page": "131", "parenthetical": "citing In re Watts, 38 N.C. App. 90, 94, 247 S.E.2d 427, 429 (1978)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/75/0127-01" ] }, { "cite": "520 S.E.2d 108", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "112" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 305", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11240467 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "311" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0305-01" ] }, { "cite": "284 S.E.2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "555" } ], "opinion_index": 0 }, { "cite": "55 N.C. App. 68", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526709 ], "year": 1981, "pin_cites": [ { "page": "71-72" } ], "opinion_index": 0, "case_paths": [ "/nc-app/55/0068-01" ] }, { "cite": "681 S.E.2d 456", "category": "reporters:state_regional", "reporter": "S.E.2d", "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": "738 S.E.2d 173", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2013, "pin_cites": [ { "page": "175", "parenthetical": "quoting N.C. Gen. Stat. \u00a7 45-21.16(d) (2011)" } ], "opinion_index": 0 }, { "cite": "689 S.E.2d 590", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "592" } ], "opinion_index": 0 }, { "cite": "202 N.C. App. 509", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4175288 ], "year": 2010, "pin_cites": [ { "page": "511" } ], "opinion_index": 0, "case_paths": [ "/nc-app/202/0509-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 45-21.16", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 6, "pin_cites": [ { "page": "(d)" }, { "page": "(d)" }, { "page": "(d)" }, { "page": "(d)(iii)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 45-21.34", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 } ], "analysis": { "cardinality": 853, "char_count": 18761, "ocr_confidence": 0.728, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14105243201437612 }, "sha256": "668cc11f65381c04e2500e7511d3cb73478065f0ec81722d6c2c76e31c403a5e", "simhash": "1:9f1cf9fed5b1b41e", "word_count": 3021 }, "last_updated": "2023-07-14T15:07:10.338246+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEELMAN and GEER concur." ], "parties": [ "IN THE MATTER OF THE FORECLOSURE OF A DEED OF TRUST EXECUTED BY TIMOTHY W. RAYNOR AND NICOLE W. RAYNOR DATED JUNE 12, 2008, RECORDED IN BOOK 5323, PAGE 2749, NEW HANOVER COUNTY REGISTRY" ], "opinions": [ { "text": "HUNTER JR., Robert N., Judge.\nTimothy W. Raynor and Nicole W. Raynor (\u201cRespondents\u201d or \u201cHomeowners\u201d) appeal from an Order to Allow Foreclosure Sale permitting the substitute trustee to foreclose under a deed of trust securing a debt held by Wells Fargo Bank, N.A. (\u201cPetitioner\u201d or \u201cthe Bank\u201d). On appeal, Homeowners contend that the trial court erred in concluding it lacked subject matter jurisdiction to hear Homeowners\u2019 defense to foreclosure. For the following reasons, we affirm.\nI. Factual & Procedural History\nOn 12 June 2008, the Bank made a loan of $221,777 to Homeowners. The loan was insured by the Federal Housing Administration, an agency under the United States Department of Housing and Urban Development (\u201cHUD\u201d). The loan was secured by Homeowners\u2019 residence in Wilmington pursuant to a deed of trust recorded with the New Hanover County Register of Deeds.\nUnder the note and deed of trust, Homeowners were to make equal monthly installment payments of principal and interest in the amount of $1,329.67 to the Bank beginning on 1 August 2008 and continuing thereafter for 30 years. The note also contained the following provision:\n6. BORROWER\u2019S FAILURE TO PAY\n(B) Default\nIf Borrower defaults by failing to pay in full any monthly payment, then Lender may, except as limited by regulations of the Secretary in the case of payment defaults, require immediate payment for the principal balance remaining due and all accrued interest. Lender may choose not to exercise this option without waiving its rights in the event of any subsequent default. In many circumstances regulations issued by the Secretary will limit Lender\u2019s rights to require immediate payment in full in the case of payment defaults. This Note does not authorize acceleration when not permitted by HUD regulations. As used in this Note, \u201cSecretary\u201d means the Secretary of Housing and Urban Development or his or her designee.\n(Emphasis added.)\nIn addition, the deed of trust securing the Bank\u2019s loan in pertinent part read:\n9. Grounds for Acceleration of Debt.\n(a) Default. Lender may, except as limited by regulations issued by the Secretary, in the case of payment defaults, require immediate payment in full all sums secured by the - security instrument^]\n(d) Regulations of HUD Secretary. In many circumstances regulations issued by the Secretary will limit Lender\u2019s rights, in the case of payment defaults, to require immediate payment in full and foreclose if not paid. The security instrument does not authorize acceleration or foreclosure if not permitted by regulations of the Secretary.\n(Emphasis added.)\nIn October 2009, Homeowners failed to make their required payment under the note. In response, the parties entered into two separate forbearance agreements. The first of these was executed in December 2009. Under this agreement, Homeowners were not required to make any payments to the Bank until April 2010. The second forbearance agreement, entered into in May 2010, required Homeowners to make four monthly payments of $650. Homeowners were able to satisfy the terms of both forbearance agreements. During this time Homeowners applied to the Bank for a loan modification. In a letter sent to Homeowners dated 16 September 2010, the Bank stated that it was \u201cunable to get [Homeowners] to a modified payment amount [they] could afford per the investor guidelines on [their] mortgage.\u201d\nIn December 2010, the Bank sent Homeowners a demand for payment. The demand stated that Homeowners were in default, and gave Homeowners 45 days to cure their default by paying $25,097.54 \u2014 the amount past due on the note along with a late payment charge and inspection fee. The Bank also warned Homeowners that it would accelerate the note if Homeowners failed to cure their default. Homeowners failed to cure the default, and the Bank accelerated the note and instructed the trustee to foreclose as provided in the deed of trust. At the request of Homeowners, the Bank again reviewed Homeowners\u2019 account, along with financial information provided by Homeowners, but was unable to approve a modification under the federal government\u2019s Home Affordable Modification Program (\u201cHAMP\u201d) or a traditional loan modification.\nAfter Homeowners\u2019 failure to cure their default or pay the balance of the accelerated note, the substitute trustee commenced a special proceeding on 15 February 2011 seeking to exercise the power of sale in the deed of trust. At the same time, the Bank reviewed updated financial documentation submitted by Homeowners in an attempt to once again secure a modification. This time, the Bank was able to approve Homeowners for a traditional loan modification it determined would be affordable for Homeowners based on the updated information they provided. The Bank sent Homeowners loan modification documents on 17 February 2011, and suspended the foreclosure proceeding in light of Homeowners having been approved for the modification. However on 2 March 2011 Homeowners, through counsel, contacted the Bank and rejected the modification offer. Homeowners rejected the offer on the basis that, in their view, they were eligible for a more favorable modification under HAMP. The Bank expressed to Homeowners\u2019 counsel its view that Homeowners did not qualify for a HAMP modification, and thereafter resumed efforts to foreclose on the residence.\nHomeowners contested the foreclosure at a hearing on 13 February 2012 on the grounds that the Bank failed to offer them a loan modification for which they qualified under the regulations promulgated by the HUD Secretary. The Clerk entered an order permitting foreclosure on 13 February 2012. Homeowners then posted the bond set by the Clerk to stay foreclosure and appealed to the Superior Court for a de novo hearing.\nConcurrently, Homeowners filed a complaint against the Bank on 12 April 2012 in New Hanover County Superior Court alleging several causes of action, including: (1) unfair and deceptive trade practices on the part of the Bank, (2) fraud, (3) breach of fiduciary duty, (4) negligence, (5) negligent misrepresentation, and (6) breach of contract. Homeowners\u2019 complaint also sought a permanent injunction enjoining sale of their residence pursuant to N.C. Gen. Stat. \u00a7 45-21.34, on the \u201clegal and equitable grounds\u201d that the Bank failed to offer them a HAMP modification for which they qualified, in violation of federal regulations and the parties\u2019 contract. The Bank filed notice of removal of the suit on diversity grounds in the United States District Court for the Eastern District of North Carolina on 16 May 2012.\nShortly thereafter, the superior court heard Homeowners\u2019 appeal from the Clerk\u2019s decision in the special proceeding. At the hearing Homeowners argued that in light of the language quoted above in the note and deed of trust, the Bank\u2019s compliance with HUD regulations were contractual conditions precedent to the Bank\u2019s right to foreclose under the deed of trust. The trial court disagreed, and ruled that it lacked subject matter jurisdiction to consider Homeowners\u2019 defense. The court premised this decision on its conclusion that the defense raised by Homeowners was equitable rather than legal in nature, and thus outside the scope of review permitted by N.C. Gen. Stat. \u00a7 45-21.16. Accordingly, the trial court entered an Order to Allow Foreclosure Sale on 8 June 2012, in which it concluded that the conditions necessary for the Bank to foreclose had been met.\nHomeowners filed timely notice of appeal to this Court on 18 June 2012. On 25 September 2012, the federal district court entered a Consent Preliminary Injunction Order in Homeowners\u2019 suit against the Bank. This injunction prohibited sale of Homeowners\u2019 residence until otherwise ordered by the federal court. On 18 February 2013, this Court entered a stay of proceedings in this appeal, pending (1) dissolution of the Consent Preliminary Injunction or (2) judgment, dismissal, or other final disposition of Respondent\u2019s suit against the Bank. On 12 June 2013, Homeowners notified this Court of the entry of a Joint Stipulation of Dismissal with prejudice of the federal suit.\nII. Jurisdiction & Standard of Review\nAs Homeowners appeal from the final judgment of a superior court, we have jurisdiction over their appeal of right. See N.C. Gen. Stat. \u00a7 7A-27(b) (2011).\u201cWhether a trial court has subject-matter jurisdiction is a question of law, reviewed de novo on appeal.\u201d McKoy v. McKoy, 202 N.C. App. 509, 511, 689 S.E.2d 590, 592 (2010).\nIII. Analysis\nHomeowners argue on appeal that the trial court erred in concluding it lacked jurisdiction on the basis that Homeowners\u2019 defense to foreclosure is an equitable one, and thus outside the scope of review permitted by N.C. Gen. Stat. \u00a7 45-21.16. However we need not decide this issue, as the trial court would now be precluded from hearing Homeowners\u2019 defense because of the dismissal with prejudice of the federal suit and the doctrine of res judicata. Accordingly, we affirm the trial court\u2019s order on alternative grounds.\nUnder N.C. Gen. Stat. \u00a7 45-21.16(d), four elements must be established before the clerk can authorize a mortgagee or trustee to proceed with foreclosure by power of sale: \u201c \u2018(i) [a] valid debt of which the party seeking to foreclose is the holder, (ii) default, (iii) right to foreclose under the instrument, [and] (iv) notice to those entitled to such ....\u2019\u201d In re Bass, _ N.C. 738 S.E.2d 173, 175 (2013) (quoting N.C. Gen. Stat. \u00a7 45-21.16(d) (2011)) (alterations in original). The clerk\u2019s findings are appealable to the superior court for a hearing de novo; however, the superior court\u2019s authority is similarly limited to determining whether the criteria enumerated in N.C. Gen. Stat. \u00a7 45-21.16(d) have been satisfied. Mosler v. Druid Hills Land Co., 199 N.C. App. 293, 295-96, 681 S.E.2d 456, 458 (2009). The superior court \u201chas no equitable jurisdiction and cannot enjoin foreclosure upon any ground other than the ones stated in [N.C. Gen. Stat. \u00a7 ] 45-21.16.\u201d Matter of Helms, 55 N.C. App. 68, 71-72, 284 S.E.2d 553, 555 (1981). Accordingly, the trial court must \u201cdeclin[e] to address ... arguments] for equitable relief, as such an action would... exceed[ ] the superior court\u2019s permissible scope of review[.]\u201d Espinosa v. Martin, 135 N.C. App. 305, 311, 520 S.E.2d 108, 112 (1999). Indeed, \u201c[t]his Court has repeatedly held that equitable defenses may not be raised in a hearing pursuant to [Section] 45-21.16, but must instead be asserted in an action to enjoin the foreclosure sale under [N.C. Gen. Stat. \u00a7] 45-21.34.\u201d In re Fortescue, 75 N.C. App. 127, 131, 330 S.E.2d 219, 222 (1985) (citing In re Watts, 38 N.C. App. 90, 94, 247 S.E.2d 427, 429 (1978)).\nRelying on the language in the deed of trust and note, Homeowners argued before the trial court that the Bank\u2019s compliance with HAMP regulations regarding modification was a contractual condition precedent to the substitute trustee\u2019s \u201cright to foreclose under the instrument.\u201d N.C. Gen. Stat. \u00a7 45-21.16(d)(iii)- The trial court disagreed with this characterization, and concluded that the defense raised by Homeowners was equitable in nature, and therefore outside of its jurisdiction. However even assuming, but without deciding, that Homeowners\u2019 defense falls within the ambit of a Section 45-21.16 proceeding, the trial court currently lacks jurisdiction to hear Homeowners\u2019 defense.\nNorth Carolina\u2019s jurisprudence on foreclosure provides for dual track defenses to foreclosure under a power of sale. A homeowner may (1) appeal from an adverse ruling by the clerk of court to a superior court judge for de novo review of legal defenses and/or (2) file a separate civil action in superior court to seek injunctive relief from foreclosure on equitable grounds.\nHomeowners availed themselves of both remedies in this matter. In their injunctive action, which the Bank removed to federal court, the parties litigated the specific issue of the Bank\u2019s failure to comply with HAMP. While the matter was pending in federal court, the Fourth Circuit acknowledged that mortgagors have no freestanding private right of action to sue for violations of the HAMP act. See Spaulding, 714 F.3d at 776 n.4. Based upon this ruling and for other reasons satisfactory to the parties, Homeowners\u2019 complaint was dismissed with prejudice. Because this claim has been dismissed with prejudice in federal court, the specific issue of whether the bank violated HAMP regulations for purposes of this lawsuit has been decided.\n\u201cA final judgment, rendered on the merits by a court of competent jurisdiction, is conclusive as to the issues raised therein with respect to the parties and ... constitutes a bar to all subsequent actions involving the same issues and parties.\u201d Kabatnik v. Westminster Co., 63 N.C. App. 708, 711-12, 306 S.E.2d 513, 515 (1983). \u201cIn order for res judicata to apply, there must have been a prior adjudication on the merits of an action involving the same parties and issues as the action in which the defense of res judicata is asserted.\u201d Id. at 712, 306 S.E.2d at 515. For purposes of res judicata, a voluntary dismissal with prejudice is \u201ca judgment on the merits.\u201d Id. Res judicata is applicable regardless of any differences in the manner in which the claims are asserted. Id.\nAfter the trial court entered its order allowing foreclosure, Homeowners obtained a Preliminary Injunction from the federal court in its Section 45-21.34 suit preventing the Bank from foreclosing on Homeowners\u2019 residence. As noted above, Homeowners\u2019 suit sought a permanent injunction barring foreclosure on the basis of the Bank\u2019s alleged non-compliance with HUD regulations pertaining to modification of Homeowners\u2019 loan.\n' However, Homeowners have notified this Court of a Joint Stipulation of Dismissal with Prejudice in the federal suit. Therefore, even if we were to agree with Homeowners, and remand this case to the trial court for consideration of Homeowners\u2019 defense, the trial court would be barred from hearing their argument. As a dismissal with prejudice is a judgment on the merits for the purposes of res judicata, Id., Homeowners may not raise arguments identical to those before the federal court again before the superior court. Accordingly, we affirm the order of the trial court on alternative grounds.\nIV. Conclusion\nFor the foregoing reasons, the order of the trial court is\nAFFIRMED.\nJudges STEELMAN and GEER concur.\n. In recent years, courts throughout the country have seen an increase in suits premised on a lender\u2019s alleged failure to comply with the provisions of HAMP. Although the federal courts seem to be in agreement that HAMP itself does not create a freestanding federal cause of action, there appears to be a split of authority with regard to state law claims premised on a lender\u2019s failure to comply with HAMP\u2019s provisions. The Fourth Circuit has recently noted, consistent with the position of the Seventh Circuit, that the fact that HAMP violations are not themselves actionable in no way abrogates state law causes of action premised on a lender\u2019s failure to comply with HAMP. See Spaulding v. Wells Fargo Bank, N.A., 714 F.3d 769, 776 n.4 (4th Cir. 2013) (\u201cAppellants repeatedly acknowledge that they have no federal claims under HAMP____They also contend, correctly, that the mere fact that HAMP does not provide a private right of action does not mean that all state law claims affiliated with or related to an unsuccessful HAMP application are necessarily preempted.\u201d); see also Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 581 (7th Cir. 2012) (\u201cThe absence of a private right of action from a federal statute provides no reason to dismiss a claim under a state law just because it refers to or incorporates some element of the federal law.\u201d). The Eleventh Circuit has reached the opposite conclusion, holding that because HAMP fails to create a private cause of action, plaintiffs lack standing to pursue state law claims premised on a lender\u2019s failure to comply with HAMP. See Miller v. Chase Home Finance, LLC, 677 F.3d 1113, 1116-17 (11th Cir. 2012) (\u201c[Plaintiff] lacks standing to pursue his breach of contract, breach of implied duty of good faith and fair dealing, and promissory estoppel claims insofar as they are premised on an alleged breach of Chase\u2019s HAMP obligations.\u201d). This split may ultimately be resolved by the United States Supreme Court.\n. For example, North Carolina courts have considered the following issues to be \u201clegal\u201d defenses failing within the ambit of a Section 45-21.16 proceeding, although the following list is not exhaustive: (1) whether or not the party seeking to foreclose has possession of the note and is thus \u201cthe holder of the debt,\u201d Connolly v. Potts, 63 N.C. App. 547, 306 S.E.2d 123 (1983), (2) sufficiency of both holder\u2019s and mortgagor\u2019s signatures, In re Bass,_N.C._, 738 S.E.2d 173 (holder); Espinosa, 135 N.C. App. 305, 520 S.E.2d 108 (mortgagor), (3) forgery, In re Hudson, 182 N.C. App. 499, 642 S.E.2d 485 (2007), (4) whether the subject property is covered by provisions of a putative deed of trust, In re Michael Weinman Assocs. Gen. P\u2019ship, 333 N.C. 221, 424 S.E.2d 385 (1993), (5) whether holder has produced sufficient evidence of proper endorsement, In re David A. Simpson, PC., 211 N.C. App. 483, 711 S.E.2d 165 (2011), and (6) failure of consideration. Foreclosure of Deed of Trust of Blue Ridge Holdings Ltd. P\u2019ship, 129 N.C. App. 534, 500 S.E.2d 446 (1998).\n. But see Judge Fox\u2019s recent opinion in Robinson v. Deutsche Bank Nat\u2019l Trust Co., 2013 WL 1452933 (E.D.N.C. April 9, 2013), suggesting that mortgagors may have a claim for judicial review under North Carolina\u2019s implied contractual duty of good faith and fair dealing.", "type": "majority", "author": "HUNTER JR., Robert N., Judge." } ], "attorneys": [ "The Law Office of John T. Benjamin, Jr., P.A., by John T. Benjamin, Jr. and Taylor T. Haywood, for petitioner-appellee.", "Shipman & Wright, LLP, by W. Cory Reiss, for respondents-appellants." ], "corrections": "", "head_matter": "IN THE MATTER OF THE FORECLOSURE OF A DEED OF TRUST EXECUTED BY TIMOTHY W. RAYNOR AND NICOLE W. RAYNOR DATED JUNE 12, 2008, RECORDED IN BOOK 5323, PAGE 2749, NEW HANOVER COUNTY REGISTRY\nNo. COA12-1116\nFiled 20 August 2013\nMortgages and Deeds of Trust \u2014 foreclosure\u2014HAMP regulations \u2014 equitable defense \u2014 res judicata\nA trial court order concluding that it lacked jurisdiction to hear the homeowners\u2019 Home Affordable Modification Program (HAMP) defense in a mortgage foreclosure action was affirmed. Even if the appeal from the clerk was remanded to the superior court for consideration of the homeowners\u2019 defense, the superior court would be barred from hearing their argument by res judicata.\nAppeal by respondents from order entered 8 June 2012 by Judge W. Allen Cobb, Jr. in New Hanover County Superior Court. Heard in the Court of Appeals 13 February 2013.\nThe Law Office of John T. Benjamin, Jr., P.A., by John T. Benjamin, Jr. and Taylor T. Haywood, for petitioner-appellee.\nShipman & Wright, LLP, by W. Cory Reiss, for respondents-appellants." }, "file_name": "0012-01", "first_page_order": 22, "last_page_order": 29 }