An unpublished opinion of the North Carolina Court of Appeals does not constitute 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

A p p e l l a t e P r o c e d u r e .

NO. COA13-844

NORTH CAROLINA COURT OF APPEALS

Filed: 15 April 2014

GIRLVESTER DEVANE (ANDERSON),

Plaintiff,

v. Pender County

No. 12 CVS 1082

AURORA LOAN SERVICES, LLC,

Defendant.

Appeal by Plaintiff from Order entered 6 February 2013 by 

Judge Phyllis M. Gorham in Pender County Superior Court. Heard 

in the Court of Appeals 11 December 2013.

Coleman Law, P.L.L.C., by Nathaniel T. Coleman, for 

Plaintiff. 

Renner St. John for Defendant. 

STEPHENS, Judge.

Factual Background and Procedural History

This case arises from events surrounding the foreclosure

sale of property located at 14505 Ashton Road, Rocky Point, 

North Carolina (“the property”). Following the sale, Plaintiff 

Girlvester Devane Anderson, the borrower, filed suit against 
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Defendant Aurora Loan Services, LLC, the lender, and made the 

following pertinent allegations in her complaint: 

On 15 March 2006, Plaintiff executed a note and deed of 

trust on the property. Thereafter, Defendant “erroneously 

communicated” to Plaintiff that repayment had been breached on 

five separate occasions. Plaintiff was “accused” of violating 

repayment terms a sixth time in September of 2010 and spoke with 

one of Defendant’s representatives about the matter. The 

representative informed Plaintiff that Defendant had applied 

Plaintiff’s payments to the wrong account. Plaintiff requested 

an accounting and was placed on a new payment plan. Her original 

payments were not applied to the new plan.

In December of 2010, Defendant “induced Plaintiff into 

applying for a Home Loan Modification plan” (“the modification 

plan”). Defendant informed Plaintiff that the modification plan 

“would make up for any mix-up caused by . . . [D]efendant,” but 

instructed Plaintiff that “payments could not be made” while the 

modification plan was being developed. Defendant “failed to 

disclose the financial risk of not making payments” and told 

Plaintiff that the modification plan was “a sure thing.”1

 

1 According to Plaintiff, Defendant also commented that “the 

misapplication of payments was ‘the worst mess we have ever 
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Defendant initiated foreclosure proceedings while the 

modification plan was pending and “misled Plaintiff by telling 

her that all the information needed for the HAMP2 package was 

received” when, in fact, more information was needed.

3 On 18 

October 2011, Defendant told Plaintiff that “the HAMP package 

only needed to be updated by providing the most recent banking 

information,” which Plaintiff provided. Defendant later informed 

Plaintiff that “the information was complete.” On 28 October 

2011, however, Plaintiff learned that the modification plan was 

rejected “because all the HAMP information was not received.”

A foreclosure hearing was set for 2 November 2011. 

Defendant allegedly informed Plaintiff that the hearing would be 

postponed until all of the HAMP documents were received.

Nonetheless, the hearing went ahead as planned, and the clerk of 

 

seen,’” which Plaintiff construes as an admission of fault.

2 Though Plaintiff does not define this acronym in her complaint, 

a cursory search indicates that it is a federal government loan 

package named the “Home Affordable Modification Program.” See In 

re Raynor, __ N.C. App. __, __, 748 S.E.2d 579, 582 (2013) 

(referring to and defining the HAMP program); see also Home 

Affordable Modification Program, MAKINGHOMEAFFORDABLE.gov, 

http://www.makinghomeaffordable.gov/programs/lower-payments/Page

s/hamp.aspx. 

3 Plaintiff does not provide a time context for Defendant’s 

allegedly misleading statements.
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superior court made the following pertinent findings of fact:

4

(1) Defendant holds the note and deed of trust on the property, 

which “evidences a valid debt”; (2) the note is in default; (3) 

the deed gives Defendant the right to foreclose; (4) “[n]otice 

of this hearing has been served on the record owners of the real 

estate and to all other persons against whom the noteholder 

intends to assert liability for the debt”; (5) the loan is a 

home loan, pre-foreclosure notice was provided under N.C. Gen. 

Stat. § 45-102, and “the periods of time established by” Chapter 

45, Article II have elapsed; (6) Defendant attempted to 

communicate with Plaintiff “to resolve the matter voluntarily 

prior to the foreclosure hearing[,] pursuant to [N.C. Gen. Stat. 

§] 45-21.16C[,] but such attempts were unsuccessful”; and (7) 

the sale is not barred by N.C. Gen. Stat. § 45-21.12A. Based on 

those findings of fact, the clerk of court ordered and 

authorized the substitute trustee to proceed with foreclosure.

In her complaint, Plaintiff alleges that

she was informed [by Defendant] that the 

foreclosure had been conducted. Plaintiff 

was informed by a representative of 

[D]efendant that there was a note in the 

 

4 Plaintiff does not include the clerk of court’s order in her 

complaint. However, in paragraph 16 she incorporates by 

reference the entire Pender County file on the foreclosure 

proceedings.
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file indicating the intent to postpone the 

hearing[.] However, the person that was 

handling the file went on vacation prior to 

executing the order to postpone the 

[h]earing set for November 2, 2011. 

Defendant then informed . . . Plaintiff that 

even though the [h]earing was not stopped 

that the new payment agreement would be 

worked out because the documentation was 

already on file.5

On 8 November 2011, Defendant called Plaintiff and purportedly 

informed her to “be prepared” to begin repayment. Defendant also

allegedly provided contradictory statements regarding the amount 

of repayment.

On 13 and 22 November 2011, respectively, Defendant 

informed Plaintiff (1) that “all files had been checked and 

. . . there was no longer a foreclosure date set” and, 

contrarily, (2) that “the foreclosure sale had not been 

postponed.” Plaintiff “faxed a written complaint to . . . 

Defendant” on 22 November 2011, requesting the foreclosure sale

be stopped, and Defendant allegedly promised to respond within 

 

5 This allegation wrongly implies that Plaintiff was not given 

proper notice of the 2 November 2011 hearing and was not present 

at that hearing. The clerk of superior court’s order and the 

exhibit attached to Plaintiff’s complaint state, however, that 

both parties were given proper notice of the proceeding. In 

addition, counsel for Plaintiff did not dispute Defendant’s 

repeated statements at the 4 February 2013 hearing that 

Plaintiff “was present at the [2 November 2011 foreclosure] 

hearing and was allowed to present any and all evidence that she 

had at that time.” 
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seventy-two hours. Plaintiff did not receive a response, and the 

property was sold to Defendant the next day, 23 November 2011.

Plaintiff filed her complaint on 16 March 2012, alleging

the following “causes of action”: (1) violations of sections 90 

through 94 of Chapter 40 of the North Carolina General Statutes, 

(2) breach of contract, (3) unfair and deceptive trade 

practices, (4) equitable relief, (5) constructive fraud,6 (6) 

negligent misrepresentation, and (7) constructive trust.7

Plaintiff requested relief in the form of damages, costs, 

attorneys’ fees, interest, a constructive trust, the market 

value of the property, reasonable rental income from the 

property, and a jury trial on the issues raised in the 

complaint. Defendant moved to dismiss the complaint on 20 

December 2012 pursuant to Rules 8(a), 9(b), and 12(b)(6) of the 

North Carolina Rules of Civil Procedure. A hearing on the motion 

was held 4 February 2013.

 

6 Though Plaintiff labels constructive fraud as her “SIXTH” cause 

of action, the claim appears to be the fifth in her complaint. 

Accordingly, the numbering of Plaintiff’s remaining causes of 

action is off by one. 

7 We note that equitable relief and constructive trust are not 

causes of action. They are remedies. To the extent Plaintiff’s 

complaint refers to them as causes of action, it is incorrect. 

See generally Felt City Townsite Co. v. Felt Inv. Co., 50 Utah 

364, 374, 167 P. 835, 839 (1917) (“The remedy is no part of the 

cause of action.”). 
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During the hearing, Defendant asserted that Plaintiff was 

present at the 2 November 2011 foreclosure proceeding. Plaintiff 

did not dispute this fact and acknowledged that she had failed 

to appeal the clerk of court’s order on the foreclosure sale in 

a timely manner. At the conclusion of the hearing, the trial 

court granted Defendant’s motion to dismiss and made the 

following comment to counsel for Plaintiff:

It is unfortunate that your client didn’t 

retain an attorney at an earlier stage, who 

knows what the end result would have been. 

But at this point, I find that none of these 

causes of action[] exist and therefore I am 

going to dismiss this complaint. 

The trial court memorialized its decision in a written order 

filed 6 February 2013. Plaintiff appeals.

Standard of Review

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.

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 
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dismiss was correct.” Leary v. N.C. Forest Prods., Inc., 157 

N.C. App. 396, 400, 580 S.E.2d 1, 4, affirmed per curiam, 357 

N.C. 567, 597 S.E.2d 673 (2003). 

Discussion

On appeal, Plaintiff argues that the trial court erred in 

dismissing her complaint because each cause of action was 

“properly pled.” Defendant counters by arguing that the trial 

court properly determined that Plaintiff failed to state any 

claim on which relief could be granted. We affirm.

Under N.C. Gen. Stat. § 45-21.16(d), the clerk of court

“shall authorize” a trustee to proceed with foreclosure on a 

deed of trust if the clerk finds the existence of:

(i) [a] valid debt of which the party 

seeking to foreclose is the holder, (ii) 

default, (iii) [the] right to foreclose 

under the instrument, (iv) notice to those 

entitled to such under subsection (b), (v) 

that . . . pre-foreclosure notice . . . was 

provided in all material respects, and that 

the periods of time established by Article 

11 of [Chapter 45] elapsed, and (vi) that 

the sale is not barred by [section] 45-

21.12A.

N.C. Gen. Stat. § 45-21.16(d) (2013). The clerk’s order is 

considered a “judicial act and may be appealed to the judge of 

the district or superior court having jurisdiction at any time 

within 10 days after said act.” N.C. Gen. Stat. § 45-21.16(d1).
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Equitable defenses to foreclosure . . . may 

not be raised in a hearing pursuant to 

[section] 45-21.16 or on appeal therefrom 

but must be asserted in an action to enjoin 

the foreclosure sale under [section] 45-

21.34. By contrast, evidence of legal 

defenses tending to negate any of the . . . 

findings required under [section] 45-21.16 

may properly be raised and considered. 

In re Goforth Props., Inc., 334 N.C. 369, 374–75, 432 S.E.2d 

855, 859 (1993). Section 45-21.34 states that any person with an 

interest in real property “may apply to a judge of the superior 

court, prior to the time that the rights of the parties to the 

sale or resale become fixed pursuant to [section] 45-21.29A to 

enjoin such sale . . . upon any . . . legal or equitable ground 

which the court may deem sufficient . . . .” N.C. Gen. Stat. § 

45-21.34 (2013) (emphasis added). The rights of the parties to 

the sale or resale of real property are fixed “[i]f an upset bid 

is not filed following a sale, resale, or prior upset bid within 

the period specified within this Article,” which is ten days in 

this case. N.C. Gen. Stat. § 45-21.29A (2013). 

For reasons of judicial economy and 

efficient resolution of disputes, . . . 

[section 45-21.16(d) provides a more 

appropriate process to resolve who is truly 

the equitable or legal owner of . . . any 

property sought to be sold under 

foreclosure. The right to foreclose under 

the instrument is more than a mere 

recitation of words specifying a power of 

sale. The [c]lerk of [c]ourt must decide 
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whether the person given the power of sale 

under the [d]eed of [t]rust has a right to 

foreclose under the instrument. 

In re Michael Weinman Assocs. Gen. P’ship, 333 N.C. 221, 230, 

424 S.E.2d 385, 390 (1993) (internal quotation marks omitted). 

This is not “a mere perfunctory role.” Id.

In this case, the clerk of court entered its order on 2 

November 2011 and authorized the sale to proceed. Therein, the 

clerk found, among other things, that Defendant was the holder 

of a valid debt, Plaintiff had defaulted on that debt, Defendant 

had the right to foreclose under the deed of trust, and 

Plaintiff had notice of the hearing. Plaintiff was present at 

the hearing and had the opportunity to bring any legal defenses 

and arguments that she wished. In addition, Plaintiff had the 

opportunity to raise any equitable arguments regarding the 

foreclosure in a separate action under section 45-21.34 at any 

point before the ten-day upset period elapsed. See N.C. Gen. 

Stat. §§ 45-21.29A, 21.34. Plaintiff did not appeal the order or 

assert an action in equity to enjoin the foreclosure during the 

ten-day upset period. Therefore, the rights of the parties 

became fixed at the close of the upset period, and Plaintiff has 

no further legal or equitable recourse. See N.C. Gen. Stat. § 

45-21.29A; Goad v. Chase Home Fin., LLC, 208 N.C. App. 259, 263, 
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704 S.E.2d 1, 4 (2010) (“As a result, in the absence of a 

properly filed upset bid, the rights of the parties to a 

foreclosure sale become fixed ten days after the filing of the 

report of the sale. However, even if no upset bid is submitted, 

the rights of the parties to a foreclosure sale will not become 

fixed in the event that a temporary restraining order or 

preliminary injunction is properly obtained prior to the 

expiration of the ten-day period for filing upset bids.”); see 

also Haughton v. HSBC Banks USA, __ N.C. App. __, 737 S.E.2d 191 

(2013) (unpublished opinion), available at 2013 WL 432575 

(affirming the trial court’s dismissal under Rule 12(b)(6) of 

the plaintiff’s complaint concerning a previous foreclosure 

proceeding when the plaintiff failed to appeal the clerk of 

court’s order allowing foreclosure).8 Accordingly, we hold as a 

matter of law that Plaintiff has failed to state a claim for 

which relief may be granted. Plaintiff’s arguments are 

overruled, and the trial court’s order dismissing her complaint 

is

AFFIRMED.

 

8 Haughton is an unpublished opinion and, therefore, has no 

precedential effect. N.C.R. App. P. 30(e). Nonetheless, the 

facts in Haughton are similar to those in this case, and we find 

the rationale used by the previous panel of this Court to be 

persuasive. 
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Judges STEELMAN and DAVIS concur.

Report per Rule 30(e).