An unpublished opinion of the North Carolina Court of Appeals does not constitute

controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedur e.

NO. COA 1 4

- 328 NORTH CAROLINA COURT OF APPEALS Filed: 21 October 2014

BRANCH BANKING AND TRUST COMPANY, Plaintiff ,

v. New Hanover County No. 13 CVS 996 BRIAN KEITH KEESEE and BRIAN KEITH KEESEE CONSTRUCTION, INC., Defendant s.
Appeal by defendants from order entered 10 October 2013 by Judge W. Allen Cobb, Jr. in New Hanover County Superior Court. Heard in the Court of Appeals 10 September 201 4
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McGuire Woods LLP. , by John H. Anderson, Jr. and Pamela J. Butler , for plaintiff. Shanklin & Nichols, LLP. , by Kenneth A. Shanklin and Matthew A. Nichols , for defendant.

ELMORE , Judge. Brian Keith Keesee and Brian Keith Keesee Construction, Inc. (collectively defendants), a ppeal from an order entered on 10 October 2013 granting Branch Banking and Trust Company’s ( plaintiff ) motions to dismiss defendants ’ counterclaims and- 2
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strike certain affirmative defenses
. After careful consideration, we affirm.
I. Facts In 2004, defendants obtained numerous commercial construction loans with plaintiff totaling in excess of nine million dollars through the execution of twenty commercial promissory notes currently owned and held by plaintiff
. Defendants secured their oblig ation to repay the notes with one deed of trust from defendant Brian Keesee and another from defendant Keesee Construction, Inc
. (collectively “deeds of trust”) . Both deeds of trust conveyed real property located in Brunswick County to plaintiff. Defenda nts defaulted on certain promissory notes (the notes) by failing to make required payments of interest and princip al when due. Plaintiff thereafter filed special proceedings in Brunswick County seeking orders to allow foreclosure of the collateral securi ng the
notes. In orders entered 17 May 2012, the Brunswick County Assistant Clerk of Superior Court (the clerk) concluded that H. Kenneth Stephens, II (the substitute trustee), was “authorized to exercise the power of sale contained in the Deed of Trust

e xecuted by Brian Keith Keesee Construction, Inc. [and Brian Keith Keesee] . . . and to proceed with foreclosure [s] under the- 3
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terms of such Deed [s] of Trust in accordance with the laws of the State of North Carolina.” The foreclosure sales were completed o n 10 September 2012 and 10 October 2012, and the clerk entered her final reports and accounts of the foreclosure sales (final reports and accounts) on 21 September 2012 and 29 October 2012. At no point prior to the clerk’s entry of the final reports and a ccounts did defendants object to the sale or attempt to enjoin the foreclosure s pursuant to N.C. Gen. Stat. § 45

- 21.34. After the clerk approved the final reports and accounts, plaintiff applied the proceeds of the foreclosure sales to the outstanding balance on the notes. On 6 March 2013, plaintiff filed a complaint to recover the remaining balance of approximately $6,5 00,000 still due on the notes. In response, defendant s filed six counterclaims: 1.) A declaratory judgment action pursuant to N.C. Gen. Stat. § 1

- 253 et seq., seeking “judicial determinations of its rights, remedies and relief with respect to the purported [ deeds of
trust ]” because pla intiff and its substitute trustee handled each foreclosure unlawfully; 2.) A request that the trial court declare the foreclosures to be null and void; 3.) An allegation of wrongful foreclosure because plaintiff , in the foreclosure- 4
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proceedings , violated th e terms of the deeds of trust, the notes, and provisions of North Carolina law; 4.) An allegation that plaintiff’s conduct during the foreclosure pro ceedings clogged “ the equity of redemption in each parcel of real estate” and resulted in damages in excess of $10,000; 5.) An assertion
that defendants were entitled to a common law accounting from plaintiff for all loan transactions between plaintiff and defendants refer enced in plaintiff’s complaint ; 6.) An allegation that pursuant to N.C. Gen. Stat. § 45

- 21 .36, plaintiff was obligated to account for the fair value of the property at the time and place of the foreclosure sale s , and plaintiff’s failure to do so precluded any judgment against defendants. Defendant s also asserted several affirmative defenses. In their third affirmative defense, defendants stated that they were not provided adequate notice of the foreclosure proceedings as required by N.C. Gen. Stat. § 45

- 21.16. The fourth affirmative defense allege d that notice of the foreclosure hearing s to the guarantors was insufficient . Finally, the sixteenth defense state d that plaintiffs violated the statutory requirements of the foreclosure statute ( Chapter 45 of North Carolina’s General Statutes).- 5
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Plaintiff filed motions to dismiss all of defendan ts’ counterclaims and strike affirmative defenses #3, 4, and 16. After a hearing on said motions, Judge W. Allen Cobb, Jr. entered an order on 10 October 2013 granting plaintiff ’s motions. D efendant s timely appeal. II. Analysis a.) Interlocutory Appeal
W e first address whether we should dismiss defendant’s appeal as interlocutory. “Generally, there is no right of immediate appeal from interlocutory orders and judgments.” Goldston v
. Am . Motors Corp . , 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). “An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire cont roversy.” Veazey v. City of Durham , 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950) (citation omitted). An order that grants “a motion to dismiss certain claims in an action, while leaving other claims in the action to go forward, is plainly an interlocutor y order.” Pratt v. Staton , 147 N.C. App. 771, 773, 556 S.E.2d 621, 623 (2001). Similarly, our rules ordinarily preclude “ an appeal from an order striking or denying- 6

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a motion to strike allegations contained in pleadings .” Faulconer v. Wysong & Miles Co. , 155 N.C. App. 598, 600, 574 S.E.2d 688, 690

- 91 (2002) (citation and internal quotation marks omitted). However, immediate appeal of an interlocutory order is available when it “affects a substantial right[.]” Sharpe v. Worland , 351 N.C. 159, 162, 522 S.E .2d 577, 579 (1999). Our Supreme Court has noted that “the right to avoid the possibility of two trials on the same issues can be such a substantial right.” Bockweg v. Anderson , 333 N.C. 486, 490

- 91, 428 S.E.2d 157, 160 (1993) (citation and internal quot ation marks omitted). The possibility of a second trial “affects a substantial right only when the same issues are present in both trials, creating the possibility that a party will be prejudiced by different juries in separate trials rendering inconsist ent verdicts on the same factual issue.” Green v. Duke Power Co. , 305 N.C. 603, 608, 290 S.E.2d 593, 596 (1982). This appeal is clearly interlocutory because the trial court will be required to address plaintiff’s claims to resolve the entire controversy notwithstanding the dismissal and striking of defendants’ counterclaims and some of their affirmative defenses. However, a substantial right is affected- 7
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in this case because should we dismiss this appeal as interlocutory, defendants would be required to proceed to trial upon plaintiff’s claims seeking approximately $6, 500,000 . A critical component of a judgment in this case is the valuations of the numerous real properties foreclosed upon by plaintiff in the foreclosure proceedings. If defendant s later appeal the trial court’s dismissal of their counterclaims and striking of their affirmative defenses, and we rule that the trial court erred, then a second trial on defendant s’ counterclaims could occur. These counterclaims , in part, require a factual evaluation and determination by a jury of the values of the real estate foreclosed upon. Thus, a second trial could result in an inconsistent jury decision on overlapping issues. Accordingly, we hold that the interlocutory appeal affec ts a substantial right and address the merits of defendants’ arguments. b.) Counterclaims #1
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Defendant s argue that the trial court erred in granting plaintiff’s motion to dismiss their counterclaims. We disagree.

The motion to dismiss under N.C. R. Civ. P. 12(b)(6) tests the legal sufficiency of the complaint. In ruling on the motion the allegations of the complaint must be viewed as admitted, and on that basis the court must determine as a matter of law whether t he allegations state a claim for which relief may be granted.- 8
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Stanback v. Stanback , 297 N.C. 181, 185, 254 S.E.2d 611, 615 (1979) (citations omitted). “This Court must conduct a de novo review of the pleadings to determine their legal sufficiency and to determine whether the trial court’s ruling on the motion to dismiss was correct.” Leary v. N.C. Forest Prods., Inc. , 157 N.C. App. 396, 400, 580 S.E.2d 1, 4, aff’ d per curiam , 357 N.C. 567 , 597 S.E.2d 673 (2003). A dismissal pursuant to Rule 12(b)(6) is appropriate when “(1) the complaint on its face reveals tha t no law supports the plaintiff’ s claim; (2) the complaint on its face reveals the absence of facts sufficient to make a good clai m; or (3) the complaint discloses some fact that

ne cessarily defeats the plaintiff’ s claim.” Wood v. Guilford Cnty. , 355 N.C. 161, 166, 558 S.E.2d 490, 494 (2002) (citation omitted)
. N.C. Gen. Stat. § 45

- 21.16 (d) (2013) gives the clerk judicial authority to authorize a foreclosure proceeding under a power of sale. Any argument that the foreclosure proceeding was unauthorized or conducted improperly is “incumbent on [the party] to raise that issue in that proceeding either by objection or motion in the cau se.” Douglas v. Pennamco, Inc. , 75 N.C. App. 644, 646, 331 S.E.2d 298, 300 (1985). A party seeking to appeal an order or judgment entered by the clerk- 9
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“may, within 10 days of entry of the order or judgment, appeal to the appropriate court for a trial or hearing de novo. The order or judgment of the clerk remains in effect until it is modified or replaced by an order or judgment of a judge.” N.C. Gen. Stat. § 1

- 301.1 (2013). Moreover, “the clerk’s order is binding and [a party] [is] estopped from arguin g those same issues” if no timely appeal from the clerk’s order occurred. Phil Mech. Const. Co., Inc. v. Haywood , 72 N.C. App. 318, 322, 325 S.E.2d 1, 3 (1985). On 17 May 2012 the clerk entered two orders concluding that plaintiff was the owner and holder of the notes , the notes held by plaintiff were valid debts, defendants defaulted on the notes and deed s of trust , the substitute trustee had the right to foreclos e , and proper notice of the hearing was p rovided to all required parties. Defendant’s first four count er claims (declaratory judgment, voiding the foreclosures , wrongful foreclosure s , and lender liability), each seek relief based on impropriety of the foreclosure proceedings. However, defendant s did not argue these issues during the foreclosure p roceeding s or timely appeal the clerk’s order. Thus, defendant s are precluded from now challenging issues arising from the foreclosure proceedings.- 10
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Accordingly, the trial court did not err by dismissing defendants’ counterclaims
. Moreover, defendant s’ f irst four counterclaims are barred by res judicata because of an order entered 14 February 2013 by Judge Reuben F. Young in Brunswick County Superior Court. Res judicata , also known as claim preclusion, bars “the relitigation of all matters .
. . that wer e or should have been adjudicated in the prior action.” Whitacre P’ ship v. Biosignia, Inc. , 358 N.C. 1, 15, 591 S.E.2d 870, 880 (2004) (citation and internal quotation marks omitted). The party seeking to assert res judicata has the burden of establishing its elements
. Bluebird Corp. v. Aubin , 188 N.C. App. 671, 679, 657 S.E.2d 55, 62 (2008). A party must show “(1) a final judgment on the merits in an earlier suit, (2) an identity of the causes of action in both the earlier and the later suit, and (3) an identity of the parties or their privies in the two suits” in order to prevail on a theory of res judicata
. Herring v. Winston

- Salem/Forsyth Cnty. Bd. of Educ. , 188 N.C. App. 441, 444, 656 S.E.2d 307, 310 (2008) (citation and quotat ion marks omitted). Judge Young entered an order in response to plaintiff’s Motion to Cancel D efendants’ Notice of Lis Pendens . The parties in that action were plaintiff and defendants . Judge Young- 11
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granted plaintiff’s motion, ruling, in part, that t he Notice of Lis Pendens was not authorized by law. He also ruled that because defendants failed to appeal from the clerk’s order granting power of sale and “further failed to bring an action to enjoin the foreclosure sales under N.C. Gen. Stat. § 45

- 21.3 4 before the foreclosure sales were finalized,” the clerk’s order s

are “binding res judicata , and [defendants] are estopped in this action from arguing any of the statutory considerations set forth . . . and from challenging [plaintiff ’ s] right to obtain
t itle to the Collateral through the statutory foreclosure
process .” (emphasis added)
. Defendants never appealed Judge Young’s order. Thus, plaintiff’s Motion to Cancel D efendants’ Notice of Lis Pendens resulted in a final order on the merits, the subject matter in that motion and the complaint in the present case both arise from defendants’ attempt to prevent plaintiff from obtaining title to the collateral due to alleged improprieties in the foreclosur e proceedings, and both actions involve identical parties. Thus, in addition to the clerk’s order, Judge Young’s order also bars defendants from asserting their first four counterclaims
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We also note that defendant s fail to articulate any argument in thei r brief related to the trial court’s alleged error in dismissing their fifth counterclaim
. Thus, defendant s have abandoned appellate review of that issue pursuant to the North Carolina Rules of Appellate Procedure. N.C.R. App. P. 28(a). c.) Clogging the Equity of Redemption Defendants also argue that the trial court erred in dismissing the equitable portion of their fourth counterclaim. We disagree. An equitable claim contesting a foreclosure sale must “be asserted in an action to enjo in the foreclosure sale under G.S. 45

– 21.34.” In re Foreclosure Under That Deed of Trust Executed by Azalea Garden Bd. & Care, Inc. , 140 N.C. App. 45, 57, 535 S.E.2d 388, 396 (2000) (citations and internal quotation marks omitted) . N.C. Gen. Stat. § 45

- 2 1.34 (2013) states:

Any owner of real estate, or other person, firm or corporation having a legal or equitable interest therein, may apply to a judge of the superior court, prior to the time that the rights of the parties to the sale or resale becoming fixed pursuant to G.S. 45

- 21.29A to enjoin such sale, upon the ground that the amount bid or price offered therefor [sic] is inadequate and inequitable and will result in irreparable damage to the owner or other interested person, or upon any other legal o r equitable ground which- 13
- the court may deem sufficient [.]
(emphasis added). Generally, a party’s rights to a foreclosure sale become fixed at the “expiration of the period for filing an upset bid [.] ” Goad v. Chase Home Fin., LLC , 208 N.C. App. 259, 263, 704 S.E.2d 1, 4 (2010). The time period for filing an upset bid lapses if it “ is not filed [within ten days] following a sale, resale, or prior upset bid [
. ] ” N.C. Gen. Stat. § 45

- 21.29A (2013)
. The fourth counterclaim, in part, alleges that the plaint iff’s conduct during the foreclosure proceedings clogged

“ the equity of redemption in each parcel of real estate[.]” Defendants rely on Swindell v. Overton to support their argument that N.C. Gen. Stat. § 45

- 21.34 does not bar their equitable claims after the completion of a foreclosure sale. 310 N.C. 707, 712, 314 S.E.2d 512, 516 (1984).
In Swindell , our Supreme Court held that a party was “allowed to ch allenge the clerk’s confirmation of a foreclosure sale by an independent [equitable] action under circumstances hereinafter set forth.” Id
. Importantly, the circumstances in Swindell are distinguishable from the case at bar because in Swindell , a party o bjected to a foreclosure sale and sought to enjoin the resale of foreclosed property by inform ing the clerk of its- 14
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intent to file a restraining order before the clerk actually entered her order confirming the foreclosure resale
. Id . at 709, 314 S.E.2d at 514. Defendants in the instant case , however, never objected to the foreclosure sales before the clerk entered her order

con firming the foreclosure sales. Moreover, the record is devoid of any evidence that defendants exercised their rights to enjoin the foreclosures on equitable grounds within the prescribed time period required by N.C. Gen. Stat. § 45

- 21.29A. Accordingly, the equitable ground presented in defendants’ counterclaim fail s . e.) Counterclaim #6: Defendants argue that the trial court erre d in dismissing their sixth counterclaim. This counterclaim alleges that plaintiff failed to account for the fair value of the property at the time of the foreclosure sale s in violation of N.C. Gen. Stat. § 45

- 21.36
. We disagree
. N.C. Gen. Stat. § 45

- 21. 36 (2013) states: When any sale of real estate has been made by a mortgagee, trustee, or other person authorized to make the same, at which the mortgagee, payee or other holder of the obligation thereby secured becomes the purchaser and takes title eithe r directly or indirectly, and thereafter such mortgagee, payee or other holder of the secured- 15
- obligation, as aforesaid, shall sue for and undertake to recover a deficiency judgment against the mortgagor, trustor or other maker of any such obligation whose property has been so purchased, it shall be competent and lawful for the defendant against whom such deficiency judgment is sought to allege and show as matter of defense and offset, but not by way of counterclaim , that the property sold was fairly worth t he amount of the debt secured by it at the time and place of sale or that the amount bid was substantially less than its true value, and, upon such showing, to defeat or offset any deficiency judgment against him, either in whole or in part[.] (emphasis a dded). Here, plaintiff filed a deficiency action against defendants to recover the remaining balance of approximately $6,500,000 due on the notes after completion of
the foreclosure sale s . Pursuant to the plain language of the statute above, defendant s w ere required to allege the accounting issue as an affirmative defense. Instead, defendants asserted a counterclaim alleging that the amount s bid for the propert ies at the foreclosure sale s w ere less than their fair value. Thus, defendant’s counterclaim #6 is improper as a matter of law, and the trial court properly dismiss ed this claim. f.) Affirmative Defenses #3, 4, 16
Defendant s also argue that the trial court erred in striking their third, fourth, and sixteenth affirmative defenses
. We disagree
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Pursuant to North Carolina Rule of Civil Procedure 12(f), a trial court “may order stricken from any pleading any insufficient defense or any redundant, irrelevant, immaterial, impertinent, or scandalous matter.” N.C. R. Civ. P. § 1A

- 1, Rule 12. An affi rmative defense “should not be stricken unless it has no possible bearing upon the litigation. If there is any question as to whether an issue may arise, the motion to strike should be denied.” Reese v. Charlotte

- Mecklenburg Bd. of Educ. , 196 N.C. App. 53 9, 556, 676 S.E.2d 481, 492 (2009) (citations and quotation marks omitted). A trial court’s ruling on a motion to strike will not be disturbed on appeal “absent an abuse of discretion.” Id
. Each of defendants’ affirmative defenses (inadequate notice

an d violation of the North Carolina foreclosure statute) are premised in the alleged irregularities of the foreclosure proceedings. However, in her order s allowing the foreclosure sale s , the clerk concluded that “[p]roper notice of hearing was given to all of those parties entitled to such notice under North Carolin a General Statute § 45

- 21.16.” She further authorized the substitute trustee to “exercise the power of sale . . . in accordance with the laws of the State of North Carolina.” Thus, defendants ’ a ffirmative defenses are- 17
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immaterial according to Rule 12(f) because defendants neither raised these issues at the foreclosure proceeding s nor appealed the clerk’s order s . Their affirmative defenses are also barred by res judicata in light of Judge Young’s order since plaintiff’s Motion to Cancel Defendants’ Notice of Lis Pendens resulted in a final order on the merits, the subject matter asserted in the affirmative defenses and that motion arise from defendants’ attempt to attack the legality of the forecl osure proceedings, and both actions involve identical parties. Accordingly, the trial court did not err by dismissing defendants’ third, fourth, and sixteenth affirmative defenses
. III. Conclusion In sum, the trial court neither erred by granting plaintiff’s motion to dismiss all of defendants’ counterclaims nor by granting plaintiff’s motion to strike defendants’ third, fourth, and sixteenth affirmative defenses. Accordingly, we affirm the trial c ourt’s order. Affirmed. Judge s CALABRIA and STEPHENS concur . Report per Rule 30(e)
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