On 14 April 1997, plaintiff filed an amended reply to defendant's counterclaim. Defendant did not appeal this order. On 5 March 1998, plaintiff filed a motion for summary judgment, which was granted by Superior Court Judge E. Lynn Johnson on 4 November 1998. The trial court's order also dissolved the preliminary injunction and ordered the foreclosure sale to proceed, which defendant appeals. Plaintiff presented evidence in support of what it contended should be a significant bond pending the appeal.
Defendant argues that the trial court erred in granting plaintiff's motion for summary judgment.
Specifically, defendant's defenses to foreclosure against HUD raise material issues of fact which preclude summary judgment for the plaintiff. N.C. Gen. Stat. Defendant concedes that HUD has broad discretion in making foreclosure decisions, but argues that HUD's actions were arbitrary, capricious and not in compliance with applicable law. HUD may certainly give major consideration to preservation of the assets of the insurance fund and may weigh other factors relevant to national housing policy and formulating administrative procedures and in deciding whether to foreclose a particular mortgage. Id. Defendant was first in default on the loan in 1989, which according to plaintiff, continued in default until 1994, when defendant acknowledged in the PWA that the loan was in default.