Allred v First Bank National Assoc'n
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-617 NORTH CAROLINA COURT OF APPEALS Filed: 19 December 2006 LEE ORDELL ALLRED and wife, VANESSA FELICIA HARRELLSON ALLRED, Plaintiffs, v. Guilford County No. 04 CVS 5012 FIRST BANK NATIONAL ASSOCIATION TRUST, FAIRBANKS CAPITAL CORPORATION, and PHILIP A. GLASS, SUBSTITUTE TRUSTEE, Defendants. Appeal by plaintiffs from order entered 17 January 2006 by Judge Catherine Eagles in Guilford County Superior Court. Heard in the Court of Appeals 16 November 2006. Weeks & Roupas, LLP, by James B. Weeks, for plaintiffsappellants. The Law Office of John T. Benjamin, Jr., P.A., by John T. Benjamin, Jr. and Devon A. Glick, for defendants-appellees. JACKSON, Judge. Plaintiffs Lee Odell Allred and his wife, Vanessa Felicia Harrellson Allred, appeal the trial court s order of 17 January 2006. For the reasons stated below, we dismiss plaintiffs appeal. -2Defendant First Bank National Association Trust held the mortgage on plaintiffs home, and defendant Fairbanks Capital Corporation serviced plaintiffs loan. Plaintiffs defaulted on their placed mortgage, and the property was in foreclosure. Plaintiffs commenced a breach of contract action on 17 March 2004 and later amended their complaint to assert numerous claims arising out of their contention that they were not in default of the subject note and deed of trust. Plaintiffs claimed that defendants had not properly credited their account and had not properly provided them with notice of the foreclosure hearing. Plaintiffs specific claims included fraud, breach of contract, unfair and deceptive trade practices, and actions under the Federal Fair Debt Collection Practices Act. On 4 April 2005, the trial court granted defendants motion to dismiss all of plaintiffs claims, save the breach of contract action, on the ground that plaintiffs did not state a claim upon which relief could be granted. On 15 July 2005, the trial court issued an order granting defendant s motion for summary judgment against plaintiff Lee Allred. The trial court issued an order granting defendants motion for summary judgment against plaintiff Vanessa Allred on 6 September 2005. With both motions, the trial court determined that plaintiffs did not submit discovery responses in a timely fashion, and as a result, the court deemed defendants requests for admissions admitted. After determining that there was no genuine issue of material fact remaining, the trial court granted summary judgment against both plaintiffs. -3Plaintiffs filed a new motion to set aside the order of foreclosure sale on 21 November 2005. A judgment and order granting defendants motion for Rule 11 sanctions and denying plaintiffs new motion was entered on 17 January 2006. Plaintiffs filed and served notice of appeal on 10 February 2006. Plaintiffs first and fourth assignments of error arise directly from the trial court s order of 6 September 2005 granting defendants motion for summary judgment against Vanessa Allred. As there was no timely appeal taken from that court order, these assignments of error are not properly before this court. See N.C. R. App. P. 3 (2006). In their second and third assignments of error, plaintiffs appeal the 17 January 2006 Order Granting Defendants Motion for Sanctions and Denying Plaintiffs Motion to Set Aside Order of Foreclosure Sale. In their Motion to Set Aside Order of Foreclosure Sale, plaintiffs contended that they did not receive notice of the foreclosure hearing and as a result were not present at the hearing. This issue already had been litigated, however, as plaintiffs raised this issue in their complaint. Plaintiffs did not file either a Rule 59 motion for a new trial or a Rule 60 motion for relief from the orders granting summary judgment in favor of defendants. See N.C. Gen. Stat. ยง 1A-1, Rules 59, 60 (2005). The trial court, therefore, correctly denied plaintiffs motion to set aside the sale. As plaintiffs attempt to use the instant appeal to revisit previously litigated issues without -4having filed a Rule 59 or Rule 60 motion, their second and third assignments of error are not properly before this Court. Plaintiffs expressly abandon their remaining assignment of error, and therefore, as no assignments are properly before this Court, we dismiss the instant appeal. DISMISSED. Judges GEER and LEVINSON concur. Report per Rule 30(e).
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