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NO. COA09-1455

NORTH CAROLINA COURT OF APPEALS

Filed: 1 June 2010

IN THE MATTER OF THE FORECLOSURE
of a Deed of Trust Executed by
Hannia M. Adams and H. Clayton
Adams, Dated October 31, 2005,
Recorded in Book 11668, Page 2236
in the Wake County Registry.
Wake County
No. 09 SP 119
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Appeal by respondents from order entered 1 June 2009 by Judge Carl R. Fox in Wake County Superior Court. Heard in the Court of Appeals 12 April 2010.

Tatum Law Firm, PLLC, by Brian Steed Tatum, for petitioner–appellee.

Brent Adams & Associates, by Cameron V. Frick and Brenton D. Adams, for respondents–appellants.

MARTIN, Chief Judge.

Excerpt


We recognize that, in the present case, the testimony by affidavit from Ms. Smith, the assistant secretary of Deutsche Bank for Soundview—an out-of-state entity—as well as the in-person testimony offered by Ms. Cole indicated that Deutsche Bank for Soundview is the current holder of the Note and Deed of Trust. However, neither the in-person testimony from Ms. Cole nor the testimony by affidavit from Ms. Smith expressly showed that Novastar transferred or assigned its interest in the Note and Deed of Trust to Deutsche Bank for Soundview. Moreover, as we discussed above, the photocopied Note and Deed of Trust, which were described in Ms. Smith’s affidavit as “exact reproductions” of the original instruments, do not show that the Note was indorsed, transferred, or otherwise made payable by Novastar, the original holder of the instrument, to Deutsche Bank for Soundview. Thus, whereas the record in In re Foreclosure of Brown, 156 N.C. App. 477, 577 S.E.2d 398 (2003), also included an Assignment of Deed of Trust as evidence showing that the original holder of the note and deed of trust had assigned its interest in said instruments to the party seeking to foreclose on the respondent–borrowers, the record before the trial court in the present case contained no such additional evidence. Accordingly, because a foreclosure under a power of sale is not favored in the law and must be “watched with jealousy,” see In re Foreclosure of Goforth Props., 334 N.C. at 375, 432 S.E.2d at 859 (internal quotation marks omitted), we must conclude that the evidence presented to the trial court was not sufficient to establish that the Note was payable to Deutsche Bank for Soundview, and so was not sufficient to support the trial court’s finding of fact that “Novastar Mortgage, Inc., . . . transferred and assigned its interest in the Note and Deed of Trust to Deutsche Bank National Trust Company, as Trustee for Soundview Home Loan Trust 2005-4 (‘Lender’).” See, e.g., Smathers v. Smathers, 34 N.C. App. 724, 725, 239 S.E.2d 637, 638 (1977) (“The notes upon which plaintiff sues were not drawn, issued or indorsed to her or to her order or to bearer or in blank. Therefore, plaintiff is not the holder of the notes within the meaning of the Uniform Commercial Code, G.S. Ch. 25, and the trial court erred in according her the rights of a holder under G.S. 25-3-301.”); see also Econo–Travel Motor Hotel Corp., 301 N.C. at 203–04, 271 S.E.2d at 57 (holding that, where a promissory note “had never been made payable to plaintiff or to bearer, nor had it ever been indorsed to plaintiff, . . . defendants established that plaintiff was not the owner or holder of the note”). Therefore, we reverse the trial court’s order authorizing Monica Walker, Matressa Morris, and Nationwide to act as substitute trustees and proceed with foreclosure under a power of sale for the property described in the Deed of Trust recorded in Book 11668 at Page 2236 in the Wake County Register of Deeds.
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Reversed.

Judges JACKSON and BEASLEY concur.

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NORTH CAROLINA COURT OF APPEALS IN THE MATTER OF THE FORECLOSURE IN RE ADAMS


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