Opinion
No. COA12–1380.
2013-08-6
In the Matter of the FORECLOSURE OF A LIEN BY PARKWAY UNIT OWNERS ASSOCIATION, INC. AGAINST KAMELIA K. SHAW, TRUSTEE UNDER the KAMELIA K. SHAW LIVING TRUST DATED APRIL 10, 2003.
Harris & Hilton, P.A., by Nelson G. Harris, for Petitioner-appellee. Kamelia Shaw, for Respondent-appellant.
Harris & Hilton, P.A., by Nelson G. Harris, for Petitioner-appellee. Kamelia Shaw, for Respondent-appellant.
ERVIN, Judge.
Appeal by respondent from order entered 13 December 2011 by Judge Paul C. Ridgeway in Wake County Superior Court. Heard in the Court of Appeals 24 April 2013.
Respondent Kamelia K. Shaw, Trustee of the Kamelia K. Shaw Living Trust, appeals from an order affirming an order entered by the Wake County Clerk of Superior Court denying her amended motion to set aside an order of foreclosure. In her brief, Ms. Shaw argues (1) that Petitioner Parkway Unit Owners Association (Parkway UOA) had no right to foreclose on her property given the absence of “a contractual right to foreclose contained in an executed deed or note,” (2) that Parkway UOA was statutorily prohibited from using the foreclosure process to collect an unpaid assessment, and (3) that she received insufficient notice of the foreclosure proceedings. After careful consideration of Ms. Shaw'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. Procedural History
Parkway UOA, the homeowners' association for the MacArthur Park subdivision in Cary, was “created pursuant to the Declaration of Covenants, Conditions and Restrictions of Parkway [UOA], Inc. recorded in Book 4202, Page 687, Wake County Registry (as amended).” On 11 August 2003, Ms. Shaw purchased “Lot 20, Section III of MacArthur [P]ark Subdivision as per plat and survey thereof” “subject to the Declaration [of Covenants, Conditions and Restrictions of Parkway [UOA], Inc. recorded in Book 4202, Page 687, Wake County Registry].” As a result, Ms. Shaw was “required pursuant to the Declaration and applicable law to pay homeowners' association assessments, late fees, interest and other charges.”
In light of her failure to pay an annual assessment due on and after 1 January 2009 and other assessments which became due after that date, Parkway UOA filed a claim of lien on 18 November 2009 asserting that Ms. Shaw owed the principal sum of $355.50. On 7 May 2010, Parkway UOA filed a notice of foreclosure hearing in which it notified Ms. Shaw that it would seek the entry of an order authorizing it to foreclose on her property based upon the claim of lien. On 22 June 2010, Parkway UOA filed an affidavit detailing its efforts to serve Ms. Shaw with the notice of the foreclosure hearing. On 24 June 2010, Parkway UOA filed an amended claim of lien in which it updated the amount that it claimed that Ms. Shaw owed and set forth a new address for Ms. Shaw. On 30 June 2010, Parkway UOA filed a new notice of foreclosure hearing. On 28 July 2010, Parkway UOA filed another affidavit spelling out its attempts to serve Ms. Shaw with the notice of foreclosure hearing.
On 29 July 2010, a hearing concerning the issues raised by Parkway UOA's notice of foreclosure hearing was conducted before the Clerk. At the conclusion of the hearing, the Clerk entered an order authorizing Parkway UOA to foreclose on Ms. Shaw's property for the purpose of satisfying the amended assessment lien. On 9 September 2010, a foreclosure sale was conducted, at the conclusion of which Parkway UOA was determined to be the highest bidder. On 27 September 2010, a Trustee's Deed conveying Ms. Shaw's property to Parkway UOA was recorded in the office of the Wake County Register of Deeds. On 11 October 2010, the Clerk approved a report and accounting associated with the foreclosure sale filed by the Trustee.
Ms. Shaw did not note an appeal to the Wake County Superior Court from the Clerk's foreclosure order. On 13 October 2010, however, she filed an ex parte motion with the Clerk in which she requested that the foreclosure be set aside. After initially granting Ms. Shaw's motion, the Clerk set aside its order granting Ms. Shaw's motion on 18 October 2010. On 2 December 2010, Ms. Shaw filed a new motion seeking to have the foreclosure set aside on the grounds that she had “not resided in North Carolina for over two (2) years” and that “[n]otice was never posted at 204 Heathridge [Lane] Cary NC 27513[.]” On 4 January 2011, Ms. Shaw filed an amended motion to set aside the foreclosure in which she asserted the same grounds that she had alleged in her 2 December 2010 motion and the additional grounds (1) that she had not been served with a statement of the amount that she allegedly owed to Parkway UOA prior to the notices of foreclosure hearing; (2) that she was “entitled” to have the foreclosure set aside “pursuant to [N.C. Gen.Stat. § 1A–1,] Rule 60;” (3) that “the judgment is void,” and (4) that she should receive relief from the foreclosure “because of mistake, inadvertence or excusable neglect” on the part of Ms. Shaw.
On 20 January 2011, the Clerk conducted a hearing concerning the issues raised by Ms. Shaw's motion. After the completion of the hearing, the Clerk entered an order denying Ms. Shaw's motion on the grounds that Ms. Shaw “ha [d] not shown good cause to set aside the Foreclosure Order entered July 29, 2010[,] or the sale that ha[d] taken place thereafter.” On 28 January 2011, Ms. Shaw noted an appeal to the Wake County Superior Court from the Clerk's order denying her motion to have the foreclosure set aside.
A hearing was held on 28 November 2011 before the trial court for the purpose of addressing the issues raised by Ms. Shaw's appeal. At that proceeding, Ms. Shaw argued that Parkway UOA was not entitled to foreclose on her property based upon the lien securing the unpaid assessment unless it held a deed of trust or other instrument containing a power of sale provision, and that the foreclosure in question was barred pursuant to N.C. Gen.Stat. § 47F–3–116(a2). Ms. Shaw did not, however, make any argument before the trial court at the 28 November 2011 hearing concerning the extent, if any, to which she had received proper notice of the proposed foreclosure and, instead, specifically stated that she was not relying on a “lack of notice” argument. On 13 December 2011, the trial court entered an order upholding the Clerk's decision to deny her motion to set aside the foreclosure. Ms. Shaw noted an appeal to this Court from the trial court's order.
II. Legal Analysis
A. Violations of the Appellate Procedure Rules
“ ‘[R]ules of procedure are necessary ... in order to enable the courts properly to discharge their dut[y]’ of resolving disputes. It necessarily follows that failure of the parties to comply with the rules, and failure of the appellate courts to demand compliance therewith, may impede the administration of justice.... Compliance with the rules, therefore, is mandatory.” Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 193–94, 657 S.E.2d 361, 362–63 (2008) (quoting Pruitt v. Wood, 199 N.C. 788, 790, 156 S.E. 126, 127 (1930), and citing State v. Hart, 361 N.C. 309, 311, 644 S.E.2d 201, 202 (2007), and Viar v. N.C. Dep't of Transp., 359 N.C. 400, 401, 610 S.E.2d 360, 360 (per curiam) (2005) (other citations omitted)). A careful review of the record discloses that Ms. Shaw violated the applicable provisions of the North Carolina Rules of Appellate Procedure in a number of important respects.
N.C. R.App. P. 28(b) provides, in pertinent part, that an “appellant's brief shall contain, under appropriate headings and in the form prescribed by Rule 26(g),” the following information:
(3) A concise statement of the procedural history of the case. This shall indicate the nature of the case and summarize the course of proceedings up to the taking of the appeal before the court.
(4) A statement of the grounds for appellate review. Such statement shall include citation of the statute or statutes permitting appellate review....
(5) A full and complete statement of the facts. This should be a non-argumentative summary of all material facts underlying the matter in controversy which are necessary to understand all issues presented for review, supported by references to pages in the transcript of proceedings, the record on appeal, or exhibits, as the case may be.
Although a portion of Ms. Shaw's brief is entitled “Statement of the Case,” the information contained in that section consists, in large part, of statements asserting that Parkway UOA had engaged in improper conduct, including accusations that the foreclosure stemmed from a “willful conspiracy” involving “deed theft” and that Parkway UOA had employed “fraud” and “trickery,” had exhibited “outrageous greed,” and had acted with a “depraved heart[ ].” On the other hand, Ms. Shaw's “Statement of the Case” does not set out the “procedural history of the case” as required by N.C. R.App. P. 28(b)(3). Similarly, Ms. Shaw's “Statement of the Grounds for Appellate Review” is completely devoid of any reference to the “the statute or statutes permitting appellate review” as required by N.C. R.App. P. 28(b)(4). Instead, that portion of Ms. Shaw's brief consists of a litany of Ms. Shaw's opinions concerning the “miscarriage of justice” which resulted from the foreclosure that she was seeking to overturn. Finally, Ms. Shaw's “Statement of the Facts” contains virtually no reference to any objective facts or citations to the record and consists, once again, of unsupported allegations of malfeasance on the part of Parkway UOA, including accusations that Parkway UOA used “fraud, misrepresentation, and trickery” in order “to steal [her] Warranty Deed” and engaged in a “deed theft scam.” In addition, Ms. Shaw made a completely unsupported accusation to the effect that Parkway UOA's actions “may give rise to [charges of] the criminal offense of extortion, and or racketeering[.]” As a result, Ms. Shaw has committed an egregious violation of the requirement of N.C. R.App. P. 28(b)(5) that the statement of the facts be “a non-argumentative summary[.]” Thus, Ms. Shaw has committed a number of serious violations of the relevant provisions of the North Carolina Rules of Appellate Procedure.
The substantive arguments contained in Ms. Shaw's brief are replete with similar accusations, including claims that Parkway UOA engaged in a “mortgage deed scam” in which it used “trickery,” that Parkway UOA's “scam is egregious,” and that Parkway UOA acted “illegally and wrongfully” in foreclosing on the lien.
Although we conclude that, “in some instances, respondent's arguments adopted an emotional tone and resorted to unprofessional personal attacks against petitioner” and “are cognizant of these transgressions,” we elect to adhere to our general preference for addressing the issues advanced by an appealing party on the merits, Belk v. Belk, ––– N.C.App. ––––, ––––, 728 S.E.2d 356, 372 (2012), in spite of our strong inclination to do otherwise. We do, however, admonish Ms. Shaw in the strongest possible terms “to reevaluate the need for melodrama and theatrics over civil, reasoned persuasion,” State v. Matthews, 358 N.C. 102, 112, 591 S.E.2d 535, 542 (2004), and to refrain from engaging in similar conduct in the future. State v. Rogers, 355 N.C. 420, 464, 562 S.E.2d 859, 886 (2002) (citations omitted) (stating that “[o]ne measure of the professionalism that we expect from litigants in North Carolina courts is the avoidance of all known improprieties .... [and we] admonish counsel [and litigants appearing pro se ] to refrain from [engaging in such improprieties]”). Any failure on Ms. Shaw's part to give heed to this admonition in the event that she is ever involved in future proceedings before the Appellate Division in this jurisdiction should result in the imposition of severe sanctions.
On 11 March 2013, Parkway UOA filed a motion seeking the dismissal of Ms. Shaw's appeal or the imposition of other appropriate sanctions on the basis of Ms. Shaw's failure to comply with certain rules governing the settlement and filing of the record on appeal and certain of the violations discussed in more detail in the text of this opinion. On 2 April 2013, Ms. Shaw filed a response to Parkway UOA's motion in which she contended that the record on appeal had been submitted to the Court in a timely manner. However, instead of addressing Parkway UOA's other contentions, Ms. Shaw made additional unsupported and unwarranted attacks upon Parkway UOA, stating that it had engaged in “an attempt to delay the instant proceedings,” that it was attempting to “[h]inder [j]ustice,” and that opposing counsel was engaging in “ethically questionable tactics.” Although we elect, for the reasons set out in the text of this opinion, to deny Parkway UOA's motion, we note for the record that Ms. Shaw's attacks upon Parkway UOA and its counsel are completely inappropriate and alert Ms. Shaw that the same admonition which has been given to her in the text of this opinion is equally applicable to the sorts of comments that are contained in her response to Parkway UOA's dismissal motion.
B. Standard of Review
Appeals from the decisions of a Clerk to the Superior Court are authorized by N.C. Gen.Stat. § 1–301.1(b), which provides, in pertinent part, that “[a] party aggrieved by an order or judgment entered by the clerk may, within 10 days of entry of the order or judgment, appeal to the appropriate court for a trial or hearing de novo.” On appeal, “the judge may hear and determine all matters in controversy in the civil action,” subject to certain exceptions which are not relevant to the instant case. N.C. Gen.Stat. § 1–301.1(c).
“When an appellate court reviews the decision of a trial court sitting without a jury, ‘findings of fact have the force and effect of a verdict by a jury and are conclusive on appeal if there is evidence to support them, even though the evidence might sustain a finding to the contrary.’ ” In re Bass, –––N.C. ––––, ––––, 738 S.E.2d 173, 175 (2013) (quoting Knutton v. Cofield, 273 N.C. 355, 359, 160 S.E.2d 29, 33 (1968) (internal citation omitted)). “Unchallenged findings of fact ‘are presumed to be supported by competent evidence, and are binding on appeal.’ ” Cohen v. McLawhorn, 208 N.C.App. 492, 498, 704 S.E.2d 519, 524 (2010) (quoting Justice for Animals, Inc. v. Lenoir County SPCA, Inc., 168 N.C.App. 298, 305, 607 S.E.2d 317, 322,aff'd in part and mod. in part, 360 N.C. 48, 619 S.E.2d 494 (2005)) (internal quotation omitted).
In addition, according to well-established North Carolina law, “ ‘any determination requiring the exercise of judgment or the application of legal principles is more properly classified a conclusion of law.’ “ In re Foreclosure of Real Property, ––– N.C.App. ––––, ––––, 741 S.E.2d 888, 889 (2013) (quoting N.C. State Bar v. Key, 189 N.C.App. 80, 88, 658 S.E.2d 493, 499 (2008) (quotations and citations omitted)). As a general proposition, “classification of an item within the order is not determinative, and, when necessary, the appellate court can reclassify an item before applying the appropriate standard of review.” Key, 189 N.C.App. at 88, 658 S.E.2d at 499 (citing In re Helms, 127 N.C.App. 505, 510, 491 S.E.2d 672, 675 (1997)). At any rate, “[t] he applicable standard of review on appeal where, as here, the trial court sits without a jury is whether competent evidence exists to support the trial court's findings of fact and whether the conclusions reached were proper in light of the findings.” In re Foreclosure of Azalea Garden Bd. & Care, Inc., 140 N.C.App. 45, 50, 535 S.E.2d 388, 392 (2000). We will now proceed to apply these standards to Respondent's appellate arguments.
C. Validity of Foreclosure Order
The principal challenge to the trial court's order advanced in Ms. Shaw's brief is an assertion that, in order to properly pursue foreclosure of the lien, Parkway UOA was required to have a deed or other instrument containing a “power of sale.” Respondent's argument is totally devoid of merit.
“Chapter 47F of our General Statutes, entitled the ‘North Carolina Planned Community Act,’ ... governs the operation of North Carolina homeowners associations such as Petitioner.” In re Five Oaks Recreational Ass'n, Inc., ––– N.C.App. ––––, ––––, 724 S.E.2d 98, 101 (2012) (citing N.C. Gen.Stat. § 47F–1–102(a) (2011)). According to N.C. Gen.Stat. § 47F–3–116(a):
Any assessment levied against a lot remaining unpaid for a period of 30 days or longer shall constitute a lien on that lot when a claim of lien is filed of record in the office of the clerk of superior court of the county in which the lot is located in the manner provided herein.... Except as provided in subsections (a1) and (a2) of this section, the association, acting through the executive board, may foreclose the claim of lien in like manner as a mortgage on real estate under power of sale or under Article 2A of Chapter 45 of the General Statutes, if the assessment remains unpaid for 90 days or more....
In other words, “[w]ith respect to collection of delinquent assessments, the Act ... vests the association holding the claim of lien with authority to ‘foreclose the claim of lien in like manner as a mortgage on real estate under power of sale under Article 2A of Chapter 45 of the General Statutes.’ ” Five Oaks, ––– N.C.App. at ––––, 724 S.E.2d at 101. As a result, contrary to the assertion made throughout Ms. Shaw's brief, the applicable statutory provision clearly indicates that, if a homeowner fails to pay assessments due under a declaration of covenants applicable to his or her property, the relevant homeowners' association may file a lien against the property and enforce that lien through the use of the foreclosure process despite the absence of any instrument containing a power of sale provision.
In its order addressing Ms. Shaw's appeal from the Clerk's order denying Ms. Shaw's motion to set aside the order of foreclosure, the trial court found, in pertinent part, that:
1. On July 29, 2010, the Clerk entered a Foreclosure Order, in accordance with the provisions of N.C. [Gen.Stat.] § 45–21.16, pursuant to which terms the Clerk found that [Parkway UOA] was formed pursuant to the provisions of a Declaration of Covenants, Conditions and Restrictions of Parkway Unit Owners Association, Inc. (as amended) (“the Declaration”); that [Ms. Shaw] had acquired the property at 204 Heathridge Lane, Cary, NC 27513 (“the Property”) subject to the Declaration; that [Ms. Shaw] was obligated to pay homeowners association assessments under the terms of the Declaration; that [Ms. Shaw] defaulted in her assessment payment obligations; that [Parkway UOA] has filed a Claim of Lien to secure payment of those assessments; and that Nelson G. Harris was authorized to sell the property to satisfy [Ms. Shaw's] obligations to [Parkway UOA].
2. [Ms. Shaw] has not appealed the Foreclosure Order to the Superior Court[.]
3. [Parkway UOA] was the last and highest bidder at the foreclosure sale authorized by the Foreclosure Order, and, on September 27, 2010, the Property was conveyed to [Parkway UOA] by Trustee's Deed recorded in Book 14087, Page 1382 of the Wake County Registry.
4. On January 4, 2011, [Ms. Shaw] filed an Amended Motion to Set Aside Foreclosure ... pursuant to which terms [she] sought to have the Clerk set aside the Foreclosure Order and the sale which took place thereunder.
5. On January 20, 2011, the Clerk entered the Order On [the] Amended Motion denying the Amended Motion to Set Aside.
6. On January 28, 2011, [Ms. Shaw] filed a Notice of Appeal to Superior Court, timely appealing the Order on [the] Amended Motion [to Set Aside].
7. [Ms. Shaw] has not sought equitable relief under [N.C.] Gen.Stat. § 45–21.34 or otherwise.
8. [Ms. Shaw] presented no evidence at [the] hearing, in the form of testimony, affidavit or otherwise, in support of the appeal of the Amended Motion to Set Aside.
Based on these findings of fact, the trial court concluded as a matter of law that:
2.... [Any appeal by Ms. Shaw from the Foreclosure Order to Superior Court] would be untimely.
....
9. This Court's de novo review of the Clerk's order denying the Amended Motion to Set Aside is governed by [N.C.] Gen.Stat. § 1–301.1 and § 1–301.2(g)(2).
10. To the extent that [Ms. Shaw], in [her] appeal of the Clerk's order denying the Amended Motion to Set Aside, seeks to raise equitable defenses to the Foreclosure Order or the foreclosure sale, the Court finds that this Court does not have subject matter jurisdiction to consider such equitable defenses because those equitable defenses are not properly before the Court as required by [N.C.] Gen. Stat § 45–21.16. In re Watts, 38 N.C.App. 90, 94, 247 S.E.2d 427, 429 (1978); Espinosa v. Martin, 135 N.C.App. 305, 311, 520 S.E.2d 108, 112 (1999), disc. review denied, 351 N.C. 353, 543 S.E.2d 126 (2000); Mosler v. Druid Hills Land Co., 199 N.C.App. 293[, 681 S.E.2d 456] (2009).
11. Because no evidence was presented by [Ms. Shaw] at the hearing on [her] appeal of the Clerk's Order on [her] Amended Motion, and upon review of the Court's own record as found in the Court file, the Court finds and concludes that [Ms. Shaw] has not met [her] burden of establishing any facts that would support the relief sought by [Ms. Shaw] in the Amended Motion to Set Aside. The Court further finds that the Clerk's Order denying the same was supported by substantial evidence and not arbitrary, capricious or an abuse of discretion.
12. The Court further finds and concludes that there is no basis in law for concluding that [Ms. Shaw] is entitled to the relief sought in the Amended Motion to Set Aside, and further finds that the Clerk's Order denying the same was not made in error of law, in violation of due process or Constitutional rights, or in excess of the Clerk's authority.
Ms. Shaw has not challenged the evidentiary support for any of the trial court's findings which, as discussed above, makes them binding upon us for purposes of appellate review. In addition, Ms. Shaw has failed to identify any specific conclusion of law that lacks support in the trial court's findings of fact. Ms. Shaw does not dispute the accuracy of the trial court's finding, which has ample record support, to the effect that Ms. Shaw elected to refrain from offering any oral testimony or introducing any evidence and that she had decided to rely, instead, on purely legal arguments of the type that we will discuss subsequently. As a result, given our conclusion that the trial court's findings have adequate evidentiary support and that those findings support the trial court's conclusion that Ms. Shaw failed to establish any legal ground for reversing the Clerk's denial of her motion to set aside the order of foreclosure, the trial court's order should be affirmed.
In seeking to persuade us to make a contrary determination, Ms. Shaw cites a number of cases addressing issues arising in connection with attempts to foreclose on the basis of a mortgage or deed of trust. However, none of the cases upon which Ms. Shaw relies arose from a foreclosure proceeding commenced by a homeowners' association for the purpose of collecting an unpaid assessment amount and Ms. Shaw has failed to acknowledge that N.C. Gen.Stat. § 47F–3–116(a) explicitly authorizes a homeowners' association to foreclose on a lien arising from unpaid assessment amounts. Simply put, Ms. Shaw is mistaken in asserting that a homeowner's association is only entitled to foreclose on a lien arising from unpaid assessments in the event that it possesses an instrument that contains a power of sale provision. On the contrary, as we have previously indicated, Parkway UOA had ample authority to foreclose on Ms. Shaw's property on the basis of the authority granted by N.C. Gen.Stat. § 47F–3–116(a). As a result, we conclude that Ms. Shaw is not entitled to relief from the trial court's order on the basis of her contention that Parkway UOA had no right to foreclose on the unpaid assessments lien which it had asserted against her property in the absence of a deed of trust or some other document containing a power of sale provision.
As an aside, we note that, effective 1 July 2013, N.C. Gen.Stat. § 47F–3–116(g) has been amended to clarify that “[t]he association shall be deemed to have a power of sale for purposes of enforcement of its claim of lien.” Although the amended version of N.C. Gen.Stat. § 47F–3–116(g) does not apply in this case, the enactment of this clarifying language supports our interpretation of the relevant statutory provision.
D. Applicability of N.C. Gen.Stat. § 47F–3–116(a1)
In addition, Ms. Shaw argues that Parkway UOA was barred from foreclosing on its lien by the provisions of N.C. Gen.Stat. § 47F–3–116(a1). More specifically, Ms. Shaw contends that the General Assembly “foresaw that some unscrupulous homeowners associations might insert a power of sale clause in executed agreements with property owners” and “enacted N.C. [Gen.Stat. § ] 47 [F–3–116] (al) [,] which expressly prohibits homeowners associations from foreclosing under power of sale where the debt owed consisted of assessments and fines levied by the homeowners association,” in order to prevent such an outcome from occurring. Ms. Shaw's argument lacks merit.
N.C. Gen.Stat. § 47F–3–116(a1) provides, in pertinent part, that an “association may not foreclose an association assessment lien under Article 2A of Chapter 45 of the General Statutes if the debt securing the lien consists solely of fines imposed by the association, interest on unpaid fines, or attorneys' fees incurred by the association solely associated with fines imposed by the association.” Ms. Shaw's contention to the contrary notwithstanding, the statutory bar created by N.C. Gen.Stat. § 47F–3–116(a1) is limited to fines, fine-related interest, and fine-related attorneys' fees and does not extend to other types of assessments, such as the routine assessments at issue here. As a result, given that the amount secured by Parkway UOA's lien did not consist “solely of fines imposed by the association, interest on unpaid fines, or attorneys' fees incurred by the association solely associated with fines imposed by the association,” N.C. Gen.Stat. § 47F–3–116(a1) has no bearing on the proper resolution of this case.
E. Notice of Foreclosure Proceeding
Thirdly, Ms. Shaw argues that Parkway UOA “wrongfully and illegally deprived [her] of her constitutionally protected due process rights” by failing to provide her with the statutorily required notice that it intended to foreclose upon her property. Ms. Shaw is not entitled to relief from the trial court's order on the basis of this contention.
N.C. R.App. P. 10(a)(1) states that, in order “to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context” and “obtain[ed] a ruling upon the party's request, objection, or motion .” As a result, “to preserve an issue for appellate review, the appellant must have raised that specific issue before the trial court to allow it to make a ruling on that issue” and “cannot ‘swap horses between courts in order to get a better mount [on appeal].’ ” Regions Bank v. Baxley Commercial Props., LLC, 206 N.C.App. 293, 298–99, 697 S.E.2d 417, 421 (2010) (citing N.C. R.App. P. 10 [ (a)(1) ], and quoting State v. Sharpe, 344 N.C. 190, 194, 473 S.E.2d 3, 5 (1996), cert. denied, 350 N.C. 848, 539 S.E.2d 647 (1999)) (internal citations omitted).
At the hearing held before the trial court in connection with her appeal from the Clerk's order, Ms. Shaw did not challenge the sufficiency of the notice that she had received prior to the entry of the foreclosure order. On the contrary, Ms. Shaw expressly stated during the hearing held before the trial court that:
Now, notice was also insufficient, but I am not even arguing that. You know why I'm not arguing it? Because the North Carolina Court of Appeals says the mortgage debt is the indispensable requisite. So I'm just going by the [appellate] court and I'm sticking with ground one[.]
Thus, given the fact that, “[d]uring the hearing on the motion,” Ms. Shaw “expressly stated that [she] was not seeking any relief from the trial court” on the basis of a claim that she had not been provided with sufficient notice, “the issue has not been preserved for our review.” McCrann v. Pinehurst, LLC, ––– N.C.App. ––––, ––––, 737 S.E.2d 771, 774–75,disc. review denied, –––N.C. ––– S.E.2d ––––, 2013 N.C. LEXIS 516 (2013) (citing N.C. R.App. P. 10(a) (2012)). As a result, we decline to address Ms. Shaw's notice-related challenge to the trial court's order.
F. Respondent's Remaining Arguments
Finally, Ms. Shaw advances several additional challenges to the trial court's order, all of which lack merit. For example, Ms. Shaw includes an argument heading describing the argument to be advanced in that portion of her brief as whether N.C. Gen.Stat. § 47F–3 “authorizes a foreclosure upon the presentation of an unsigned home owner's association's declarations of covenants, conditions, and restrictions.” Although this assertion suggests that Ms. Shaw intended to challenge the underlying foreclosure on the grounds that she did not sign a copy of the declaration on which Parkway UOA's assessments were based, she has not made an argument challenging the sufficiency of the declaration to support the maintenance of a foreclosure proceeding in the body of her brief. Instead, the argument which follows this heading consists of nothing more than a reiteration of her earlier arguments relating to the absence of a “power of sale option” and assertions that Parkway UOA was guilty of “trickery” and had perpetrated an “egregious” scam that might “give rise to the criminal offense of extortion [or] racketeering[.]” As a result, Ms. Shaw is not entitled to relief from the trial court's order on the basis of this argument.
The exact statutory provision to which Ms. Shaw is attempting to make reference is not clear to us given that the citation contained in this argument heading is obviously incomplete.
In addition, Ms. Shaw contends that the trial court erred by failing to grant any relief from the Clerk's order denying her motion to set aside the foreclosure on the grounds that “the Superior Court's De Novo Review of the clerk was based on incompetent evidence in that [Petitioner was] not holder [ ] of a deed of trust with a power of sale.” In the course of advancing this argument, Respondent contends that Parkway UOA acted “wrongly, intentionally, with the assistance of a court clerk, and under deceptive color of law” in order to “improperly, and expeditiously, foreclose on [her] deed” in a “deed theft scam” that resulted in a “fraudulently obtained Foreclosure Order.” To the extent that this language advances any sort of substantive argument, it simply reiterates Ms. Shaw's flawed contention that Parkway UOA lacked the authority to foreclose on her property in the absence of “a deed with a power of sale clause.” Thus, this argument provides no basis for an award of appellate relief.
Ms. Shaw's repeated assertion that Parkway UOA acted “under color of law” involves reliance on a term that is primarily relevant to claims brought pursuant to 42 U.S.C. § 1983, a federal statutory provision that affords relief to an individual who has been subjected to a violation of federal law by an individual acting under color of state law. Ms. Shaw has not explained how this concept has any bearing on the proper resolution of the present case, and none occurs to us.
Furthermore, Ms. Shaw asserts that the trial court's order was based on “incompetent” and “fraudulent evidence.” However, a careful review of the transcript of the hearing held before the trial court establishes that neither Ms. Shaw nor Parkway UOA presented any evidence for the trial court's consideration. On the contrary, both parties relied on the arguments of counsel concerning the proper interpretation of the documents contained in the record in their competing efforts to persuade the trial court to adopt their respective points of view. Moreover, according to well-established law, in proceedings in which “the trial judge act[s] as the finder of fact, it is presumed that he disregarded any inadmissible evidence that was admitted and based his judgment solely on the admissible evidence that was before him.” In re Spivey, 345 N.C. 404, 416, 480 S.E.2d 693, 700 (1997) (citation omitted). Thus, even if “incompetent” or “fraudulent” evidence had been presented to the court, we would be required to presume that the trial court disregarded it in the absence of a showing that the consideration of such evidence affected the outcome. No such showing has been made in this case. As a result, none of Ms. Shaw's additional arguments provide a valid basis for overturning the trial court's order.
Although Ms. Shaw's brief contains other argument headings in addition to those discussed in the text of our opinions, these arguments all hinge on the perceived validity of assertions which we have discussed in the text of our opinion, obviating any necessity for further discussion of those contentions.
III. Conclusion
Thus, for the reasons discussed above, we conclude that none of Ms. Shaw's challenges to the trial court's order have any merit. As a result, the trial court's order should be, and hereby is, affirmed.
AFFIRMED. Judges ROBERT C. HUNTER and STROUD concur.
Report per Rule 30(e).