An unpublished opinion of the North Carolina Court of Appeals does not constitute 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

NO. COA14-328

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.,

Defendants.

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 2014.

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), appeal from an order entered on 

10 October 2013 granting Branch Banking and Trust Company’s

(plaintiff) motions to dismiss defendants’ counterclaims and 
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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 obligation 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. Defendants defaulted on certain 

promissory notes (the notes) by failing to make required 

payments of interest and principal when due. Plaintiff 

thereafter filed special proceedings in Brunswick County seeking 

orders to allow foreclosure of the collateral securing 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 

executed by Brian Keith Keesee Construction, Inc. [and Brian 

Keith Keesee] . . . and to proceed with foreclosure[s] under the 
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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 on 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 accounts did defendants object to the sale or 

attempt to enjoin the foreclosures 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 $6,500,000 still due on the notes.

In response, defendants 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 plaintiff 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 
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proceedings, violated the terms of the deeds of trust, the 

notes, and provisions of North Carolina law; 4.) An allegation 

that plaintiff’s conduct during the foreclosure proceedings 

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 referenced 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 sales, and 

plaintiff’s failure to do so precluded any judgment against 

defendants.

Defendants 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 alleged that notice of the foreclosure 

hearings to the guarantors was insufficient. Finally, the 

sixteenth defense stated that plaintiffs violated the statutory 

requirements of the foreclosure statute (Chapter 45 of North

Carolina’s General Statutes).
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Plaintiff filed motions to dismiss all of defendants’ 

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. Defendants timely appeal.

II. Analysis

a.) Interlocutory Appeal

We 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 controversy.” 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 interlocutory 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 
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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 quotation 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 inconsistent 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 
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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 defendants 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 defendants’ 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 affects a substantial 

right and address the merits of defendants’ arguments.

b.) Counterclaims #1-5

Defendants 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 

the allegations state a claim for which 

relief may be granted.
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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 that no law supports the plaintiff’s claim; (2) the 

complaint on its face reveals the absence of facts sufficient to 

make a good claim; or (3) the complaint discloses some fact that 

necessarily 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 cause.” 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 
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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 arguing 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 deeds of trust, the substitute trustee had the right to 

foreclose, and proper notice of the hearing was provided to all 

required parties.

Defendant’s first four counterclaims (declaratory judgment, 

voiding the foreclosures, wrongful foreclosures, and lender 

liability), each seek relief based on impropriety of the 

foreclosure proceedings. However, defendants did not argue 

these issues during the foreclosure proceedings or timely appeal 

the clerk’s order. Thus, defendants are precluded from now 

challenging issues arising from the foreclosure proceedings. 
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Accordingly, the trial court did not err by dismissing 

defendants’ counterclaims. 

Moreover, defendants’ first 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 were 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 quotation marks omitted). 

Judge Young entered an order in response to plaintiff’s 

Motion to Cancel Defendants’ Notice of Lis Pendens. The parties 

in that action were plaintiff and defendants. Judge Young 
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granted plaintiff’s motion, ruling, in part, that the 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. § 45-21.34 

before the foreclosure sales were finalized,” the clerk’s orders

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 

title to the Collateral through the statutory foreclosure 

process.” (emphasis added). Defendants never appealed Judge 

Young’s order. 

Thus, plaintiff’s Motion to Cancel Defendants’ 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 foreclosure 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 defendants fail to articulate any 

argument in their brief related to the trial court’s alleged 

error in dismissing their fifth counterclaim. Thus, defendants

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 enjoin 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. § 45-21.34 (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 or equitable ground which 
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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 

plaintiff’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 

challenge 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 objected to a foreclosure sale and sought to enjoin the 

resale of foreclosed property by informing the clerk of its 
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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 

confirming 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 fails. 

e.) Counterclaim #6: 

Defendants argue that the trial court erred 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 sales 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 either directly or 

indirectly, and thereafter such mortgagee, 

payee or other holder of the secured 
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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 the 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 added). 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 sales. Pursuant to the plain language of the 

statute above, defendants were required to allege the accounting 

issue as an affirmative defense. Instead, defendants asserted a 

counterclaim alleging that the amounts bid for the properties at 

the foreclosure sales were less than their fair value. Thus, 

defendant’s counterclaim #6 is improper as a matter of law, and 

the trial court properly dismissed this claim. 

f.) Affirmative Defenses #3, 4, 16

Defendants 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 affirmative 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. 539, 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 

and violation of the North Carolina foreclosure statute) are 

premised in the alleged irregularities of the foreclosure 

proceedings. However, in her orders allowing the foreclosure 

sales, the clerk concluded that “[p]roper notice of hearing was 

given to all of those parties entitled to such notice under 

North Carolina 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’ affirmative defenses are 
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immaterial according to Rule 12(f) because defendants neither 

raised these issues at the foreclosure proceedings nor appealed 

the clerk’s orders. 

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 foreclosure 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 court’s order. 

Affirmed. 

Judges CALABRIA and STEPHENS concur.

Report per Rule 30(e).