An unpublished opinion of the North Carolina Court of Appeals does not constitute 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. COA13-1254

NORTH CAROLINA COURT OF APPEALS

Filed: 19 August 2014

ESTATE OF ILA T. SCURLOCK,

Plaintiff

v.

Durham County

No. 12 CVS 5773

WELLS FARGO HOME MORTGAGE, INC. and 

SHAPIRO & INGLE, LLP,

Defendants

Appeal by plaintiff from order entered 26 April 2013 by 

Judge Orlando F. Hudson in Durham County Superior Court. Heard 

in the Court of Appeals 19 March 2014.

Russell, Goetcheus, & Associates, by Kathie Russell and 

Jennifer Probasco, for Plaintiff.

Womble Carlyle Sandridge & Rice, LLP, by Kenneth B. 

Oettinger and Amanda G. Ray, for Wells Fargo Bank, N.A.

Shapiro & Ingle, LLP, by Jason K. Purser, for Sharpiro & 

Ingle (no brief).

ERVIN, Judge.

Plaintiff Estate of Ila T. Scurlock appeals from an order 

dismissing its complaint, in which the estate asserted numerous 

claims arising from the alleged failure of Defendant Wells Fargo 

Home Mortgage, Inc., to honor a loan modification alleged to 
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have been previously in effect and Defendant’s alleged refusal 

to respond to Plaintiff’s request for an additional loan 

modification. On appeal, Plaintiff contends that the trial 

court erred by dismissing its complaint on the grounds that its 

complaint properly asserted a request for equitable and other 

relief based upon “negligence, negligent misrepresentation, 

breach of contract, violations of N.C. Gen. Stat. § 25-3-204 and 

§ 45-21.16(d)(i), breach of [the] implied covenant of good faith 

and fair dealing and violations of the North Carolina Secure and 

Fair Enforcement Mortgage Licensing Act, as well as violations 

of N.C. Gen. Stat. § 75 et seq.” After careful consideration of 

Plaintiff’s challenges to the trial court’s order in light of 

the record and the applicable law, we conclude that the trial 

court’s order should be affirmed.

I. Factual Background

A. Substantive Facts

In 1998, Ila T. Scurlock executed a promissory note and 

deed of trust in favor of Accredited Home Lenders, Inc., for the 

purpose of securing a $61,530 loan used to purchase a home 

situated at 2406 Shirley Street in Durham. Ms. Scurlock’s note 

was subsequently assigned to TMS Mortgage, Inc., and then to 

Home Eq Loan Servicing.
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Ms. Scurlock died on 30 March 2005. She was survived by 

two daughters, Deborah and Mabel Scurlock. In her will, Ms. 

Scurlock named Nikki S. Scurlock, Deborah Scurlock’s daughter 

and Ms. Scurlock’s granddaughter, as her executor with the power 

to, among other things, “pay [her] legally enforceable debts . . 

. except for debt . . . secured by real . . . property which 

[was] to be assumed by the recipient of such property.” Ms. 

Scurlock devised the residue of her estate, which included “all 

of [her] property and assets not specifically bequeathed or 

otherwise required for the payment of any debts owed” and “all 

[her] personal belongings,” to Deborah Scurlock1.

Nikki Scurlock filed an application for the issuance of 

letters testamentary and the admission of Ms. Scurlock’s will to 

probate on 6 April 2005. According to this application, Ms. 

Scurlock owned real property having a value of $77,677 as of the 

date of her death. On the same date, the Clerk of Superior 

Court issued letters testamentary to Nikki Scurlock and admitted 

Ms. Scurlock’s will to probate.

After Ms. Scurlock’s death, Home Eq allowed Plaintiff to 

make payments on the obligation evidenced by the promissory note

 

1As a result of the fact that Ms. Scurlock made no specific 

bequests in her will, all of her property, including the real 

property at issue in this case, passed to Deborah Scurlock under 

the residuary clause quoted in the text.
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associated with the deed of trust that was applicable to the

Shirley Street property. In May 2010, Plaintiff reached an 

agreement with Home Eq to add approximately $5,000 to the 

principal balance of the loan and reduce the required monthly 

payments by eliminating tax and insurance escrow payments. As a 

result, Plaintiff made the payments required under the note and 

deed of trust in the reduced amount specified in this agreement.

In August of 2010, Home Eq transferred the note to 

Defendant,

2 which “reneged” on the prior agreements between 

Plaintiff and Home Eq. Instead, Defendant offered to enter into

a “temporary forbearance agreement” with Plaintiff that did not 

reflect the reduced monthly payments established in the May 2010 

agreement. In addition, Defendant failed to respond to

Plaintiff’s written requests for a loan modification.

At some point that is not clearly revealed in the record, 

Defendant initiated foreclosure proceedings applicable to the 

Shirley Street property. On 26 October 2011, the Clerk of

Superior Court of Durham County entered an order authorizing the 

sale of the Shirley Street property. In its order, the Clerk

found as fact that (1) notice had been properly served upon all 

parties entitled to receive it; (2) Defendant was the holder of 

the note, which represented a valid debt; (3) the debtor was in 

 

2As the result of a subsequent merger, Wells Fargo Bank, 

N.A., succeeded to the rights of Wells Fargo Home Mortgage, Inc.
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default; and (4) the deed of trust contained a power of sale.

No appeal was taken from the order authorizing the foreclosure 

sale.

On 3 January 2012, Deborah Scurlock filed a bankruptcy 

petition in which she listed the note associated with the 

Shirley Street property as one of her debts and acknowledged

that she was in default under this note. A motion filed by the

bankruptcy trustee seeking the dismissal of Deborah Scurlock’s 

bankruptcy petition on 14 August 2012 was granted on 19 October 

2012. Prior to the entry of this dismissal order, Nikki 

Scurlock successfully petitioned to have Ms. Scurlock’s estate 

reopened for the purpose of “resolving the mortgage and deed,”

with letters testamentary reflective of that decision having 

been issued on 8 November 2012.

3 After Deborah Scurlock’s 

bankruptcy petition was dismissed, the foreclosure sale was 

rescheduled for 26 November 2012.

B. Procedural History

 

3A final accounting of the estate, which reflected a zero 

balance, was filed on the same date. The record does not 

clearly reflect the date upon which Ms. Scurlock’s estate was 

originally closed or the nature of the proceedings that took 

place on that occasion.
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On 26 November 2012, Plaintiff filed a complaint against 

Defendant and Defendant Shapiro & Ingle, LLP,4 asserting claims 

sounding in negligence, negligent misrepresentation, breach of 

contract, violations of N.C. Gen. Stat. §§ 25-3-204 and 45-

21.16(d)(i), breach of an implied covenant of good faith and 

fair dealing, violations of the North Carolina Secure and Fair 

Enforcement Mortgage Licensing Act, and violations of N.C. Gen. 

Stat. § 75 et seq.; alleging that Defendant was precluded from 

foreclosing upon the Shirley Street property in light of its 

decision to participate in the Home Affordable Modification 

Program; and seeking compensatory and punitive damages, 

attorneys’ fees, and costs. On that same day, Plaintiff filed a 

motion seeking to obtain the issuance of an injunction 

precluding the conducting of the scheduled foreclosure sale.

5

On 22 January 2013, Shapiro & Ingle filed a responsive 

pleading in which it denied the material allegations contained 

in the complaint, asserted various affirmative defenses, and 

sought dismissal of Plaintiff’s complaint on a number of 

grounds. On 8 February 2013, Defendant filed a separate 

 

4Although Plaintiff asserted that Defendant Shapiro & Ingle 

served as substitute trustee under the deed of trust applicable 

to the Shirley Street property, Defendant Shapiro & Ingle denied 

that it was serving as substitute trustee at the time that the 

foreclosure proceeding was commenced.

5On 18 February 2013, Defendant consented to the entry of a 

temporary restraining order precluding the conducting of the 

foreclosure sale.
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dismissal motion in which it asserted, among other things, that 

Plaintiff lacked standing to maintain the present action, that

Plaintiff had failed to join a necessary party, that Plaintiff’s 

claims were barred by res judicata considerations, that 

Defendant did not owe any duty to Plaintiff to modify the loan, 

and that no private right of action was available under the Home 

Affordable Modification Program. After holding a hearing on 11 

April 2013 for the purpose of considering all pending motions, 

the trial court entered an order dismissing Plaintiff’s 

complaint on 26 April 2013 for failure to state a claim upon 

which relief could be granted. Plaintiff noted an appeal to 

this Court from the trial court’s order.

II. Legal Analysis

Although Plaintiff has advanced a number of challenges to 

the trial court’s order in its brief, we need not address those

arguments in detail given our determination that Plaintiff 

lacked standing to initiate the present proceeding. As a 

result, we conclude that the trial court did not err by 

dismissing Plaintiff’s complaint.

In order to establish that it has standing to bring a legal 

action, a party must show:

(1) ‘injury in fact’—an invasion of a 

legally protected interest that is (a) 

concrete and particularized and (b) actual 

or imminent, not conjectural or 
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hypothetical; (2) the injury is fairly 

traceable to the challenged action of the 

defendant; and (3) it is likely, as opposed 

to merely speculative, that the injury will 

be redressed by a favorable decision.

Neuse River Found. v. Smithfield Foods, Inc., 155 N.C. App. 110, 

114, 574 S.E.2d 48, 52 (2002) (quoting Lujan v. Defenders of 

Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 2136, 119 L. 

Ed. 2d 351, 364 (1992)), disc. review denied, 356 N.C. 675, 577 

S.E.2d 628 (2003). “Standing most often turns on whether the 

party has alleged ‘injury in fact’ in light of the applicable 

statutes or caselaw.” Id. As a result of the fact that the 

existence of standing is necessary in order for the judicial 

system to have jurisdiction over a particular action, Munger v. 

State, 202 N.C. App. 404, 409, 689 S.E.2d 230, 235 (2010), disc. 

review improvidently granted, 365 N.C. 3, 705 S.E.2d 734 (2011),

the fact that this Court is required to determine the extent to 

which subject matter jurisdiction exists regardless of the 

extent to which that issue was discussed in the court below or

addressed in the parties’ briefs, Whittaker v. Furniture Factory 

Outlet Shops, 145 N.C. App. 169, 172, 550 S.E.2d 822, 824 

(2001), and the fact that “matters outside the pleadings . . . 

may be considered and weighed in determining the existence of 

jurisdiction over the subject matter,” Tart v. Walker, 38 N.C. 

App. 500, 502, 248 S.E.2d 736, 737 (1987) (citation omitted), we 
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are required to evaluate the extent to which Plaintiff has 

standing to maintain this action regardless of the extent to 

which the parties discussed this issue in their brief based upon 

an examination of all relevant information. In the course of 

making this determination, “we view the allegations as true and 

the supporting record in the light most favorable to the nonmoving party.” Mangum v. Raleigh Bd. of Adjustment, 362 N.C. 

640, 644, 660 S.E.2d 279, 283 (2008). After conducting the 

required analysis, we conclude, given that all of Plaintiff’s 

claims are predicated on the assumption that it had a legally 

protected interest in the property and would suffer a legally 

recognized injury in the event that the foreclosure proceeded6

and given the complete absence of any record or legal support 

for either of those propositions, Plaintiff lacked standing to 

maintain the present action.

Pursuant to N.C. Gen. Stat. § 28A-15-2(b), “the title to 

real property of a decedent devised under a valid probated will 

becomes vested in the devisees and shall relate back to the 

decedent’s death.” As a result of the fact that Nikki Scurlock 

sought and obtained the entry of an order admitting Ms. 

 

6For example, the first claim alleged in Plaintiff’s 

complaint asserts that Defendant “owed Plaintiff a duty of due 

care while servicing Plaintiff’s loan.” Similarly, Plaintiff 

alleged in its complaint that Defendant’s actions caused “damage 

to Plaintiffs by, among other things, causing Plaintiffs to lose 

title to her home and her interest in its equity.”
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Scurlock’s will to probate on 6 April 2005, title to the Shirley 

Street property vested in Deborah Scurlock on that date, with 

her title relating back to the date of Ms. Scurlock’s death.

Although the Shirley Street property was potentially “available 

for the discharge of debts and other claims against [Ms. 

Scurlock’s] estate,” N.C. Gen. Stat. § 28A-15-1(a), Plaintiff 

never sought to have the property returned to the estate for 

that purpose. As a result, the real property that was the 

subject of this action was never owned by or otherwise contained 

in Ms. Scurlock’s estate.

In addition, we note that, although Plaintiff was 

statutorily authorized to pay any debts owed by Ms. Scurlock at 

the time of her death, N.C. Gen. Stat. § 28A-13-3(a)(29) 

(authorizing the personal representative to “[p]ay or satisfy 

the debts and claims against the decedent’s estate” in the order 

and manner provided by law), the personal representative’s 

authority in this respect is specifically subject to any

“express limitations imposed in a will of the decedent.” N.C. 

Gen. Stat. § 28A-13-3(a). As we have already noted, Ms. 

Scurlock’s will authorized the estate to “pay [her] legally 

enforceable debts . . . except for . . . debt secured by real 

and/or personal property[,] which [was] to be assumed by the 
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recipient of such property.”7 Thus, Ms. Scurlock’s will 

specifically provided that her estate was not to assume 

responsibility for any obligation arising from or relating to 

her ownership of real property, with any such obligations to be 

assumed instead by the individual to whom the property had been

devised.

In light of the fact that the relevant tract of property 

was never owned by Ms. Scurlock’s estate and the fact that Ms. 

Scurlock’s will required the recipient of any real property 

transferred under that instrument to assume responsibility for 

any related debts, we are unable to understand how Plaintiff was 

in any way injured by Defendant’s failure to honor agreements 

that it had allegedly entered into with Defendant’s predecessors 

or to respond to Plaintiff’s request for an additional 

modification of the note and deed of trust applicable to the 

Shirley Street property. Based upon the same logic, we are 

unable to see how Plaintiff had the authority to negotiate any 

sort of loan modification relating to the Shirley Street 

property with Defendant or its predecessors that would be in any 

way binding upon Defendant. As a result, given the absence of

 

7Although the parties appear to have assumed at the hearing 

held before the trial court that title to the property was 

transferred to Deborah Scurlock while the necessity to pay the 

obligation reflected in the note and deed of trust remained with 

Plaintiff, that assumption is inconsistent with the provisions 

of Ms. Scurlock’s will.
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any showing that the estate had any authority to act on Deborah 

Scurlock’s behalf and the absence of any indication that the 

estate, as compared to Deborah Scurlock, suffered any injury as 

a result of Defendant’s conduct, Plaintiff is simply not 

entitled to maintain any claim against Defendant stemming from 

Defendant’s alleged refusal to honor prior agreements between 

Plaintiff and Defendant’s predecessors and Defendant’s alleged 

refusal to respond to Plaintiff’s request for an additional loan 

modification. As a result, since the record clearly establishes 

that Plaintiff lacked standing to assert the claims set out in 

the complaint against Defendant, we necessarily conclude that 

the trial court did not err by dismissing Plaintiff’s complaint.

III. Conclusion

Thus, for the reasons set forth above, we conclude that 

Plaintiff lacked standing to initiate and maintain the present 

action. As a result, the trial court’s order should be, and 

hereby is, affirmed.

AFFIRMED.

Judges GEER and STEPHENS concur.

Report per Rule 30(e).