UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT KNOXVILLE

LNV CORPORATION, )

)

Plaintiff, )

)

v. ) No.: 3:12-CV-468-TAV-HBG

)

CATHERINE GEBHARDT )

)

Defendant. )

INTERVENERS MOTION FOR JUDICIAL NOTICE OF

INFORMATION AND CRIMINAL INDICTMENT AND PLEA

AGREEMENT OF LORRAINE BROWN

Comes Now the Interveners, representing themselves, pursuant to Rule 201 Judicial Notice of

Adjudicative Facts hereby requests this Court take Judicial Notice of the documents described

herein and in support states as follows:

1. THE INTERVENERS move this Court to take judicial notice of:

Opinion of Judge Robert N. Hunter, Jr. in the Court of Appeals of North Carolina; No.

COA11-565, Bass v. U.S. Bank, Dec. 6 2011, affirming the trials courts ruling that U.S.

Bank was note the Note Holder and lacked standing to foreclose based on a Judy Faber

signature on an allonge to a Note transferring beneficial interest from Residential

Funding Corporation (attached hereto as Exhibit A.)

Opinion of Judge Robert N. Hunter, Jr. in the Court of Appeals of North Carolina; NO

COA10-361, Gilbert v. Simpson, reversing the trail courts order to proceed with

foreclosure based on a Judy Faber signature on an allonge to a Note transferring

beneficial interest from Residential Funding Corporation (attached hereto as Exhibit B.)

Deposition Transcript of Judy Faber for U.S. Bank v. Robinson; State of Indiana;

Marion County, Cause No.: 49D06-0703-MF-013045 consolidated with: 49D10-0609-

PL-40167 (attached hereto as Exhibit C.)

2. Under Federal Rule of Evidence 201 the court may judicially notice a fact that is not

subject to reasonable dispute because it: (1) is generally known within the trial courts

territorial jurisdiction; or (2) can be accurately and readily determined from sources

whose accuracy cannot reasonably be questioned. The Court may take judicial notice of

records of any court of record of the United States.

3. THE INTERVENERS move this Court to take Judicial Notice of the opinion of other

courts and the deposition transcript of Judy Faber because the documents show that

employees of Residential Funding Corporation signed thousands of mortgage

assignments and allonges, often signing the names of other persons on the Mortgage

Assignments that would then be witnessed and notarized. These employees often signed

as officers of banks and mortgage companies. The employees signed without reading the

documents or in any way ascertaining the truth of the matter presented therein, including

the grantor, grantee, and the date of the purported transfer.

4. Many of the documents, including mortgage assignments and lost note affidavits, were

later relied upon in court proceedings including foreclosure proceedings and federal

bankruptcy actions.

5. The documents attached hereto as Exhibits A and B may be accessed online from

PACER.

6. Timely written notice of this request is hereby given by email and postal mail service

upon Plaintiffs counsel as required by law.

WHEREFORE, pursuant to Federal Rule of Evidence 201 THE INTERVENERS move

this Court to take Judicial Notice of judicially determined facts pertaining to the signature

of Judy Faber and the authenticity of deed assignments and allonges bearing her signature

without hearing, and for such other and further relief as this Court deems just and proper

under the circumstances.

RESPECTFULLY SUBMITTED on this _____ day of May, 2014

_________________________________

DENISE SUBRAMANIAM as Representative for THE INTERVENERS

CERTIFICATE OF SERVICE

The undersigned hereby certifies that the copy of the foregoing motion of the Interveners

has been forwarded by regular U.S. Mail upon the following:

Ronald G. Steen Jr. and

Kevin P. Hartley

STITES & HARBISON, PLLC

Sun Trust Plaza

401 Commerce Street

Suite 800

Nashville, Tennessee, 37219

SUBMITTED on this _____ day of May, 2014

_________________________________

DENISE SUBRAMANIAM as Representative for the THE INTERVENERS

Exhibit A - Page 1 of 2

EXHIBIT A

SOURCE: http://dtc-systems.net/2011/12/bank-note-holder-north-carolina-bass-vs-bank/

US Bank is not the Note Holder North Carolina: Bass vs. US Bank Posted on December 13, 2011 by Dan Edstrom

This case is listed here without comment. The issues of endorsements, allonges, burden of proof, etc. are raised here and are very illuminating.

In the Matter of the foreclosure of a Deed of Trust executed by Tonya R. Bass in the original amount of $139,988.00 dated October 12, 2005, recorded in Book 4982, Page 86, Durham County Registry, Substitute Trustee Services, Inc., as Substitute Trustee,

No. COA11-565.

Court of Appeals of North Carolina.

Filed: December 6, 2011.

K&L Gates, LLP, by A. Lee Hogewood III, and Brian C. Fork for Petitioner-appellant.

Legal Aid of North Carolina, Inc., by E. Maccene Brown, Gregory E. Pawlowski, John Christopher Lloyd, and Andre C. Brown, for Respondent-appellee.

ROBERT N. HUNTER, JR., Judge.

U.S. Bank, National Association, as Trustee, c/o Wells Fargo Bank, N.A. (Petitioner) appeals the trial courts order dismissing foreclosure proceedings against Respondent Tonya R. Bass. Petitioner assigns error to the trial courts determination that Petitioner is not the legal holder of a promissory note executed by Respondent and therefore lacks authorization to foreclose on Respondents property securing the note under a deed of trust. After careful review, we affirm.

I. Factual & Procedural Background

On 12 October 2005, Respondent executed an adjustable rate promissory note (the Note) in favor of Mortgage Lenders Network USA, Inc. (Mortgage Lenders). The Note evidences Respondents promise to pay Mortgage Lenders the principal amount of $139,988.00 plus interest in monthly installments of $810.75 beginning December 2005. The terms of the Note state that Respondent will be in default if she fails to pay the full amount of each monthly payment on the date it is due. Respondent secured the Note with a Deed of Trust encumbering real property located at 4240 Amberstone Way in Durham. The Deed identifies Mortgage Lenders as the lender and Mitchell L. Hefferman as trustee. The Deed of Trust also sets forth a power of sale clause providing that Respondents default on her monthly payment obligations under the terms of the Note and failure to cure such default could result in foreclosure of Respondents property as described in the Deed of Trust.

The record indicates Respondent fell behind on her monthly payments under the Note and, to date, is current on payments only through July 2008. As discussed further infra, the Note was purportedly transferred several times before coming into Petitioners possession. On or about 10 January 2008, Petitioner, as holder of the Note evidencing the entire indebtedness secured by the [] Deed of Trust, filed an Appointment of Substitute Trustee with the Durham County Register of Deeds. The Appointment of Substitute Trustee purportedly removed Mr. Hefferman as trustee under the Deed of Trust and replaced him with Substitute Trustee Services, Inc. (Substitute Trustee). On 27 March 2009, Substitute Trustee commenced foreclosure proceedings against

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Respondent by filing a Notice of Foreclosure Hearing in Durham County Superior Court in accordance with North Carolina General Statutes 45-21.16. The Notice of Foreclosure Hearing stated Petitioners intent to foreclose on the Note and Deed of Trust because of [Respondent's] failure to make timely payments on the Note.

On 8 April 2010, a foreclosure hearing was held before the Clerk of Durham County Superior Court. Upon consideration of the statutorily prescribed elements, see N.C. Gen. Stat. 45-21.16(d) and discussion infra, the clerk of court entered an order permitting Substitute Trustee to proceed with foreclosure of Respondents property. Respondent timely appealed the clerks order to the superior court, and foreclosure of Respondents property was stayed pending outcome of the appeal. Respondents appeal to the superior court was continued twice as she attempted, unsuccessfully, to negotiate a loan modification with Petitioner.

On 16 August 2010, this matter was heard before Superior Court Judge Abraham Penn Jones. Petitioner introduced evidence establishing: Respondents default on her payment obligations under the Note, the Note was secured by the Deed of Trust, the Deed of Trust set forth a power of sale clause, and Respondent was properly served with notice of the foreclosure hearing. Petitioner also produced the original Note and Deed of Trust through the testimony of Erin Hirzel-Roesch, a Wells Fargo litigation specialist, and introduced copies of each document for examination by the court.

The Note as introduced before the trial court consists of five pages with a one-page ALLONGE TO NOTE (the Allonge) attached as page six. The fifth page of the Note bears three stamps purportedly indorsing and transferring the Note among prior holders and, ultimately, to Petitioner. The first stamp reads PAY TO THE ORDER OF EMAX FINANCIAL GROUP, LLC WITHOUT RECOURSE By: MORTGAGE LENDERS NETWORK USA, INC and bears no handwritten signature. The second stamp reads RESIDENTIAL FUNDING CORPORATION CHAD JONES VICE PRESIDENT and bears the apparent handwritten signature of Chad Jones. The third stamp reads PAY TO THE ORDER OF U.S. Bank National Association as Trustee WITHOUT RECOURSE Residential Funding Corporation by Judy Faber, Vice President and bears the apparent handwritten signature of Judy Faber. The Allonge, dated 25 October 2005, states Pay to the order of Without recourse: Residential Funding Corporation. The Allonge bears the apparent handwritten signature of Michele Morales and identifies Ms. Morales as Manager of Sales and Acquisitions [at] Emax Financial Group, LLC.

Respondent did not testify or present evidence at the foreclosure appeal hearing. Respondent contended only that Petitioner is not entitled to foreclose because [Petitioner is] not the proper holder of [the Note]. Specifically, Respondent asserted that the indorsement from Mortgage Lenders to Emax Financial Group, LLC (Emax) was not a proper indorsement because you have to have more than a stamp and We dont know who had authority [at Mortgage Lenders] to authorize the sale of (unintelligible) to [Emax]. Respondent also challenged the indorsement from Emax to Residential Fundings Corporation (Residential) because [t]here is nothing on the last page of [the Note] to show how and where [Residential] got this commercial paper.

The trial court entered an order on 13 September 2010 dismissing Petitioners foreclosure proceedings against Respondent. In its order, the trial court found as fact, inter alia, that the indorsement from Mortgage Lenders to Emax was not signed, and the indorsement from Emax to Residential did not indicate the source of the transfer. The trial court concluded as a matter of law that, in light of these ineffective indorsements, Petitioner was not the legal holder of the Note and was not authorized to appoint a substitute trustee to institute foreclosure proceedings against Respondent. Petitioner filed its Notice of Appeal with this Court on 3 November 2010.

II. Analysis

There are two methods of foreclosure possible in North Carolina: foreclosure by action and foreclosure by power of sale. Phil Mech. Const. Co., Inc. v. Haywood, 72 N.C. App. 318, 321, 325 S.E.2d 1, 3 (1985). A foreclosure by action consists of a formal judicial proceeding; a foreclosure by power of sale, in contrast, is a

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special proceeding[1] whereby `[t]he parties have agreed to abandon the traditional foreclosure by judicial action in favor of a private contractual remedy to foreclose. In re Adams, ___ N.C. App. ___, ___, 693 S.E.2d 705, 708 (2010) (citation omitted) (alteration in original); In re Goforth Properties, Inc., 334 N.C. 369, 374, 432 S.E.2d 855, 858 (1993) (`Historically, foreclosure pursuant to a power of sale in a deed of trust ha[s] been a private contract remedy. (citations omitted)).

A mortgagee or trustee seeking to exercise a power of sale under a deed of trust must establish four elements before the clerk of court in order to proceed with foreclosure: (1) a valid debt exists and the foreclosing party is the holder of the debt; (2) the debtor has defaulted on the debt; (3) the instrument evidencing the debt permits foreclosure; and (4) proper notice has been provided to all entitled parties.[2] See N.C. Gen. Stat. 45-21.16(d) (2009); In re Adams, ___ N.C. App. at ___, 693 S.E.2d at 709. The scope of the foreclosure hearing before the clerk of court is strictly limited to these four issues because foreclosure under a power of sale provision in a deed of trust is intended to serve as a means of avoiding lengthy and costly foreclosures by action. In re Watts, 38 N.C. App. 90, 94, 247 S.E.2d 427, 429 (1978). Our Courts have stressed, however, that while a power of sale provision is meant to `function as a more expeditious and less expensive alternative to a foreclosure by action, `foreclosure under a power of sale is not favored in the law, and its exercise will be watched with jealousy. In re Adams, ___ N.C. App. at ___, 693 S.E.2d at 708 (citations omitted). The clerk of courts order authorizing or dismissing foreclosure is appealable to the superior court. N.C. Gen. Stat. 45-21.16(d)(1) (2009). On appeal, the superior court reviews de novo the same four issues described supra. See id.

The superior courts order dismissing foreclosure is a final judgment, and, therefore, this Court exercises jurisdiction over Petitioners appeal pursuant to North Carolina General Statutes 7A-27(b) (2009). Our review of the trial courts order dismissing foreclosure is limited to determining whether competent evidence exists to support the trial courts findings of fact and whether the conclusions [of law] reached [by the trial court in its order dismissing foreclosure] were proper in light of the findings [of fact]. In re Azalea Garden Bd. & Care, Inc., 140 N.C. App. 45, 50, 535 S.E.2d 388, 392 (2000). Findings of fact by the trial court in a non-jury trial have the force and effect of a jury verdict and are conclusive on appeal if there is evidence to support those findings. A trial courts conclusions of law, however, are reviewable de novo. Holden v. John Alan Holden, ___ N.C. App. ___, ___, 715 S.E.2d 201, 209 (2011).

Before applying this standard in the instant case, we note the trial court incorrectly classified multiple legal conclusions as findings of fact. This Court has recognized that [t]he classification of a determination as either a finding of fact or a conclusion of law is admittedly difficult. In re Helms, 127 N.C. App. 505, 510, 491 S.E.2d 672, 675 (1997). Nonetheless, proper classification is critical because it shapes this Courts review of the issues on appeal. Significant deference is afforded to the trial courts findings of fact under the competent evidence standard. See State v. Hagin, ___, N.C. App. ___, ___, 691 S.E.2d 429, 431, review denied, ___ N.C. ___, 702 S.E.2d 500 (2010) (The trial courts findings are conclusive `if supported by any competent evidence even if there is evidence to the contrary that would support different findings. (citation omitted)). In contrast, we afford no deference to the trial courts conclusions of law. See Goldston v. State, 199 N.C. App. 618, 625, 683 S.E.2d 237, 242 (2009) (Because we review questions of law de novo, we give no deference to the trial courts rulings.). Generally, any determination requiring the exercise of judgment or the application of legal principles is more properly classified a conclusion of law. In re Helms, 127 N.C. App. at 510, 491 S.E.2d at 675 (internal citations omitted). A determination reached through `logical reasoning from the evidentiary facts is more properly classified a finding of fact. Id. (citation omitted).

Here, the trial court found as fact and concluded as a matter of law the following: (1) purported prior holders of the Note, Mortgage Lenders and Emax, did not properly indorse and transfer the Note, (2) Petitioner is not the legal holder of the Note, (3) Petitioner did not have authority to appoint a substitute trustee because it was not the legal holder of the Note, and (4) Petitioner did not have authority to commence foreclosure proceedings against Respondent. We conclude that these determinations each involve application of legal principles and are more properly classified as conclusions of law. We reclassify these findings of fact as conclusions of law and apply our standard of review accordingly. See N.C. State Bar v. Key, 189 N.C. App. 80, 88, 658 S.E.2d 493, 499

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(2008) ([C]lassification 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.).

Of the issues considered by the clerk of court and subsequently reviewed de novo by the trial court, the sole issue presented on appeal to this Court is whether Petitioner, as the party seeking foreclosure under a power of sale, is the holder of a valid debt. See N.C. Gen. Stat. 45-21.16(d) (2009). Respondent is entitled to demand strict proof of this element. Liles v. Myers, 38 N.C. App. 525, 528, 248 S.E.2d 385, 388 (1978).

This Court has described this inquiry as follows:

In order to find that there is sufficient evidence that the party seeking to foreclose is the holder of a valid debt in accordance with N.C.G.S. 45-21.16(d), this Court has determined that the following two questions must be answered in the affirmative: (1) `is there sufficient competent evidence of a valid debt?; and (2) `is there sufficient competent evidence that [the party seeking to foreclose is] the holder of the notes [that evidence that debt]?

In re Adams, ___ N.C. App. at ___, 693 S.E.2d at 709 (alterations in original) (citations omitted). We note that the separation of this statutory requirement into two distinct inquiries is a simplification tool and does not alter our standard of review. This Court constructed the sufficient competent evidence standard to serve as guidance in the clerk of courts application of North Carolina General Statutes 45-21.16(d). See, e.g., In re Burgess, 47 N.C. App. 599, 603, 267 S.E.2d 915, 918 (1980) ([W]e construe G.S. 45-21.16(d)(i) to permit the clerk to find a `valid debt of which the party seeking to foreclose is the holder if there is competent evidence that the party seeking to foreclose is the holder of some valid debt, irrespective of the exact amount owed.); In re Simpson, ___ N.C. App. at ___, 711 S.E.2d at 171 ([I]n order for the foreclosure to proceed, the clerk of court must find.. . the existence of a valid debt. (citing N.C. Gen. Stat. 45-21.16(d) (2009)) (emphasis added) (internal quotation marks omitted)). Whether a party is the holder of a valid debt and whether a valid debt exists are questions of law. See In re Helms, 127 N.C. App. at 510, 491 S.E.2d at 675 ([A]ny determination requiring the exercise of judgment or the application of legal principles is more properly classified a conclusion of law. (internal citations omitted)). As such, this Court must determine whether the trial courts conclusions with respect to these questions are supported by its findings and, in turn, whether such findings are supported by competent evidence. See supra.

In the case sub judice, the existence of a valid debt is not in disputeRespondent concedes she has defaulted under the terms of the Note. The sole issue remaining is whether Petitioner is the legal holder of the Note evidencing Respondents debt. This determination is critical because it protect[s] [Respondent] from the threat of multiple judgments on the [Note]. In re Simpson, ___ N.C. App. at ___, 711 S.E.2d at 171. Absent this requirement, the Note could be negotiated `to a third party who would become a holder in due course, bring a suit upon the [Note] and obtain a judgment in her favor. Id. (quoting Liles, 38 N.C. App. at 527, 248 S.E.2d at 387). Requiring the foreclosing party to introduce sufficient competent evidence that it `is the holder of the note at the time of [the] suit reduces the possibility of such an inequitable occurrence. Id. (quoting Liles, 38 N.C. App. at 527, 248 S.E.2d at 387).

In determining whether the foreclosing party is the holder of a valid debt for purposes of North Carolina General Statutes 45-21.16(d), this Court has applied the definition of holder as set forth in North Carolinas adoption of the Uniform Commercial Code (UCC). See In re Connolly, 63 N.C. App. 547, 550, 306 S.E.2d 123, 125 (1983). North Carolina General Statutes 25-1-201 defines holder as [t]he person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession. N.C. Gen. Stat. 25-1-201(b)(21) (2009). This Court has also defined holder under former North Carolina General Statutes 25-1-201(20) as `a person who is in possession of an instrument issued or indorsed to him or to his order. In re Connolly, 63 N.C. App. at 550, 306 S.E.2d at 125 (citation omitted) (alterations in original). Any `individual, corporation, business trust, estate, trust.. . or any other legal or

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commercial entity can serve as the holder of a promissory note. In re Simpson, ___ N.C. App. at ___, 711 S.E.2d at 171 (quoting N.C. Gen. Stat. 25-1-201(b)(27) (2009)) (alteration in original).

A person may become the holder of an instrument: (1) through issuance of the instrument to that person or (2) through negotiation of the instrument to that person. See N.C. Gen. Stat. 25-3-201(b) (2009); N.C. Gen. Stat. 25-3-201 cmt. 1 (2009). Issuance of an instrument occurs through first delivery of the instrument by the maker of the instrument. N.C. Gen. Stat. 25-3-105(a) (2009). The record before this Court establishes that Respondent issued the Note in favor of Mortgage Lenders. See N.C. Gen. Stat. 25-3-103(a)(5) (2009) (defining maker as a person who signs a note as a person undertaking to pay); N.C. Gen. Stat. 25-1-201(b)(15) (2009) (defining delivery of an instrument as a voluntary transfer of possession); N.C. Gen. Stat. 25-3-110(a) (2009) (The person to whom an instrument is initially payable is determined by the intent of the person signing as the issuer of the instrument.).

The second method through which a person becomes the holder of an instrument, negotiation, occurs when a person other than the issuer transfers possession of the instrument to a person who becomes its holder. See N.C. Gen. Stat. 25-3-201 (2009). Mortgage Lenders, as a party in possession of a promissory note made payable to its order was the original holder of the Note. In order for Mortgage Lenders to negotiate the Note, thereby conferring holder status upon a subsequent transferee, Mortgage Lenders was required to (1) indorse the Note and (2) transfer possession of the Note to the intended transferee. N.C. Gen. Stat. 25-3-201(b) (2009) ([I]f an instrument is payable to an identified person, negotiation requires transfer of possession of the instrument and its indorsement by the holder.).

Petitioner contends the stamps on the fifth page of the Note and the accompanying Allonge establish: (1) Mortgage Lenders indorsed and negotiated the Note to Emax, (2) Emax indorsed and negotiated the Note to Residential, and (3) Residential indorsed and negotiated the Note to Petitioner. Petitioner further contends that because these stamps establish proper negotiation of the Note to Petitioner, and because Petitioner is currently in possession of the Note, the trial court erred in concluding that Petitioner is not the holder of the Note.

Petitioner produced the original Note at the de novo foreclosure hearing through the testimony of Ms. Hirzel-Roesch. However, [p]roduction of an original note at trial does not, in itself, establish that the note was transferred to the party presenting the note with the purpose of giving that party the right to enforce the instrument. In re Simpson, ___ N.C. App. at ___, 711 S.E.2d at 171. The critical question is whether the Note was properly negotiated through the chain of purported holders such that Petitioner is the holder of the Note.

We begin by examining the first stamp on page five of the Note. The stamp reads:

PAY TO THE ORDER OF: EMAX FINANCIAL GROUP, LLC WITHOUT RECOURSE BY: MORTGAGE LENDERS NETWORK USA, INC.

Petitioner contends this stamp represents Mortgage Lenders indorsement of the Note for purposes of negotiating the Note to Emax. We cannot agree.

An indorsement is a signature, other than that of a signer or maker that alone or accompanied by other words [may be] made on an instrument for the purpose of negotiating the instrument. N.C. Gen. Stat. 25-3-204(a)(i) (2009). [R]egardless of the intent of the signer, a signature and its accompanying words is an indorsement, unless the accompanying words, terms of the instrument, place of the signature, or other circumstances unambiguously indicate that the signature was made for a purpose other than indorsement. N.C. Gen. Stat. 25-3-204(a)(iii) (2009). North Carolina has adopted a broad definition of signature to include any mark, symbol, or initials, which may be printed, stamped, or written. N.C. Gen. Stat. 25-1-201(b)(37) cmt. 37 (2009) (emphasis added) ([A] compete signature is not necessary. No catalog of possible situations can be complete and the court must use common sense and commercial experience in passing upon these matters.).

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Notwithstanding this broad definition, a symbol will constitute a signature only where the symbol was adopted by the party with the present intent to authenticate the writing. Id. Moreover, an indorsment does not prove itself, but must be established by proper testimony. Our Supreme Court has specifically held that a stamp may constitute a valid indorsement, but only if the stamp is executed by a person having the intent and authority to do so. Mayers v. McRimmon, 140 N.C. 640, 642, 53 S.E. 447, 448 (1906); Branch Banking & Trust Co. v. Gill, 293 N.C. 164, 178, 237 S.E.2d 21, 29 (1977) (holding a stamp is sufficient to indorse a negotiable instrument if done by a person authorized to indorse for the payee and with intent thereby to indorse).

At the foreclosure hearing, Petitioner did not introduce any evidence to establish that the stamp purportedly indorsing and transferring the Note from Mortgage Lenders to Emax is an authorized signature. Petitioner introduced only the Note itself, depicting, as the trial court found, a stamp on the Promissory Note stat[ing] PAY TO THE ORDER OF: EMAX FINANCIAL GROUP, LLC, WITHOUT RECOURSE, BY: MORTGAGE LENDERS NETWORK USA, INC. This stamp is unsigned. Petitioners sole witness, Ms. Hirzel-Roesch, admitted she had no personal knowledge of the transfers made by the purported prior holders of the Note beyond the information represented on the Note itself. Petitioner avers, however, that it was not required to produce additional evidence to establish the stamps authenticity as an indorsement because a stamp falls within the broad statutory definition of signature, and [t]he language and location of the indorsement clearly and unambiguously show the stamp was made with the intention to transfer ownership of the note from Mortgage Lenders [] to Emax.

While it is true that a stamp can serve as a valid indorsement, our Supreme Courts rulings in Mayers and Branch Banking & Trust Co, see supra, clearly hold that the person placing the stamp must act with authorization and with the intent to indorse the instrument. See supra. The stamp at issue reflects only the name of an entity, Mortgage Lenders. Unlike the other stamps on the Note, no countersignature appears to indicate the capacity in which the signor acted in executing the stamp on behalf of Mortgage Lenders. This is a troublesome omission, as [a] corporation can only act through its agents, Anderson v. Am. Suburban Corp., 155 N.C. 131, 71 S.E. 221, 222 (1911). Mortgage Lenders liability on the Note turns on the authority (or lack thereof) of the individual executing the stamp, a determination impossible for this Court to make based solely upon the face of this stamp.

Petitioner contends that Respondent bears the burden of proving the stamp is an invalid signature. Petitioner cites North Carolina General Statutes 25-3-308(a) as quoted in a recent decision of the United States Bankruptcy Court for the Middle District of North Carolina. The Court, considering the question of what evidence a subsequent holder of a promissory note must show to establish the authenticity of a prior indorsement stated [i]f the validity of a signature is denied in the pleadings, the burden of establishing the validity is on the person claiming validity, but the signature is presumed to be authentic. In re Vogler, 2009 WL 4113704 at 2 (Bankr. M.D.N.C. 2009) (citing N.C. Gen. Stat. 25-3-308(a)). Petitioner contends that in light of the presumption set forth under North Carolina General Statutes 25-3-308(a), [t]he indorsement stamp is presumed to be authentic, and that presumption cannot be overcome unless the Respondent presents evidence to contest such authenticity.

We note initially that a decision of the Bankruptcy Court is not binding on this Court. However, Petitioners contention raises an apparent conflict among our General Statutes. On one hand, North Carolina General Statutes 45-21.16(d) clearly places the burden upon Petitioner to prove it is the holder of a valid debt; North Carolina General Statutes 25-3-308(a), however, presumes authenticity of a signature, apparently placing the burden upon Respondent to disprove the validity of an indorsement. We find Official Comment 1 under 25-3-308 instructive. Official Comment 1 to North Carolina General Statutes 25-3-308 states [t]he question of the burden of establishing the signature arises only when it has been put in issue by specific denial. N.C. Gen. Stat. 25-3-308(a) cmt. 1 (2009). Once put in issue, [t]he burden is on the party claiming under the signature to prove that the signature is valid. Id.

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Petitioner contends Respondent did not raise objection to the stamp at issue and therefore the burden remained upon Respondent to introduce evidence invalidating the purported indorsement. Contrary to Petitioners assertion, this Courts review of the transcript indicates that counsel for Respondent did in fact challenge the stamps validity, stating: you have to have more than a stamp and we dont know who had authority [at Mortgage Lenders] to authorize the sale of (unintelligible) to [Emax]. We conclude that this challenge by Respondent before the trial court was a specific denial of the signatures authenticity, thereby placing the burden upon Petitioner to put on evidence establishing authorization.

Furthermore, Comment 1 to North Carolina General Statutes 25-3-308 defines presumed to mean that until some evidence is introduced which would support a finding that the signature is forged or unauthorized, the plaintiff is not required to prove that it is valid. Id. In contrast to the stamp at issue, a handwritten signature accompanies each of the other stamps on the Note introduced by Petitioner before the trial court. The stamp purporting to transfer the Note from Residential to Petitioner, for example, bears the apparent handwritten signature of Judy Faber, identified as Residentials vice president. This signature provides at least some evidence that this stamp was executed with the requisite intent and authority. Whether a stamp bearing an apparent handwritten signature is sufficient competent evidence of the purported indorsement, however, is not before this Court as Respondent challenges the only stamp without a handwritten signature. The omission of a handwritten signature with respect to the challenged stamp is competent evidence from which the trial court could conclude that this particular stamp was not executed by an authorized individual and is therefore facially invalid indorsement. Thus, even if Respondent had failed to object to the stamp, which it did not, the burden properly remained upon Petitioner to prove its validity.

We further note it would be illogical to place this particular burden upon Respondent, as Petitioner is in possession of the Note and is in the best position to prove or disprove the authenticity of the signatures included thereon. See Bank of Statesville v. Blackwelder Furniture Co., 11 N.C. App. 530, 532, 181 S.E.2d 785, 786 (1971) (holding that the burden of establishing the authority behind an indorsement was properly placed on the bank because as a purchaser of the instrument, [the bank] was in the best position to inform itself as to the authority of the seller-indorser). Because we cannot presume the authenticity of this stamp as a signature, and because Petitioner offered no evidence establishing its authenticity other than the Note itself, the stamp is a valid signature only if it is self-authenticating. However, as our Supreme Court has explained:

It is well settled by the decisions of this Court, as well as of other courts, and by approved text-writers, that words written on the back of a negotiable instrument, purporting to be an indorsement by which the instrument was negotiated, do not prove themselves. The mere introduction of a note, payable to order, with words written on the back thereof, purporting to be an indorsement by the payee, does not prove or tend to prove their genuineness.

Whitman, Inc. v. York, 192 N.C. 87, 133 S.E. 427, 430 (1926) (citations omitted). In the case sub judice, Petitioner has offered only a bare assertion that the challenged stamp is a facially valid indorsement. Absent an allonge, testimony, or other evidence indicating that the stamp is an authorized signature, it would be imprudent for this Court to accept Petitioners position. We hold that the facial invalidity of this stamp is competent evidence from which the trial court could conclude the stamp is unsigned and fails to establish negotiation from Mortgage Lenders to Emax. Consequently, Petitioner has failed to establish it is the holder of the Note, and the trial court did not err in dismissing Petitioners summary foreclosure proceedings against Respondent. For the foregoing reasons, the trial courts order is

Affirmed.

Judges THIGPEN and McCULLOUGH concur.

[1] Since rights sought to be enforced under [the provisions of the North Carolina General Statutes governing foreclosure pursuant to a power of sale] are instituted by filing notice instead of a complaint and summons and

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DENISE.SUBRAMANIAMHighlight

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are prosecuted without regular pleadings, they are properly characterized as `special proceedings. Id. at 321, 325 S.E.2d at 2-3.

[2] The North Carolina Legislature added a fifth consideration, which expired 31 October 2010, requiring the clerk to determine whether the underlying mortgage debt was a subprime home loan, and, if it was a subprime loan, whether written notice of the foreclosure proceedings was provided at least 45 days prior to filing notice of the foreclosure hearing with the superior court. See N.C. Gen. Stat. 45-102 (2009); In re Simpson, ___ N.C. App. ___, ___, 711 S.E.2d 165, 169 (2011) (citing N.C. Gen. Stat. 45-21.16 (2009)).

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Exhibit A - Page 1 of 2

EXHIBIT B

NO COA10-361

NORTH CAROLINA COURT OF APPEALS

Filed 3 May 2011

IM THE MATTER OF THE FORECLOSURE BY'

DAVID A SIMPSON, P C , SUBSTITUTETRUSTEE, OF A DEED OF TRUST EXECUTEDBY REX T GILBERT, JR AMD DAMIELA LGILBERT, HUSBAND AMD WIPE, DATED MAY5, 2006 AMD RECORDED OM MAY 10, 2006,IM BOOK 219 AT PAGE 53 OF THE HYDECOUNTY PUBLIC REGISTRY

Hyde CountyMo 09 SP 09

Appeal by Respondents from order entered 18 August 2009 by Judge

Marvin K Blount, III zn Hyde County Superior Court Heard zn theCourt of Appeals 12 October 2010

Katherzne 8 Parker-Lowe, for respondent-appellants.

The Law Offzce of John 7 Bengamzn, Zr , P.A. , by John 7Ben7amzn, Zr. and James 22. AThzte for petztzoner-appellee.

HUNTER, JR , Robert M , Judge

Respondents Rex T Gz.lbert, Jx and his wife Daniela L Gilbert,

appeal from the trial court's Order authorizing David A Szmpson,

P C , as Substitute Trustee, to proceed with foreclosure under a

power of sale in the Deed of Trust recorded zn Book 219 at Page 53

in the Hyde County Register of Deeds We reverse

I. Factual and Procedural HistoryOn 5 Nay 2006, Respondent Rex T Gilbert, Zr executed an

adjustable rate note ("the Note" ) to refinance an existing mortgage

on his home According to the terms of the Mote, Nr Gilbert promi. sed

to pay a principal amount of $525, 000 00 plus interest to First

National Bank of Arizona The Mote was secured by a Deed of Trust,

executed by Mr Gilbert and his wi. fe, Daniela L Gilbert, on real

property located at 134 Nest End Road, Ocracoke, North Carolina The

Deed of Trust identified First National Bank of Arizona as the lender

and Matthew J Ragaller of Casey, Grimsley & Ragaller, PLLC as thetrustee

The record reveals that, during 2008, Respondents ceased making

payments on the Note and made an unsuccessful attempt to negotiate

a modification of the loan On 9 March 2009, a Substitution of

Trustee was recorded in the Hyde County Regi. ster of Deeds, which

purports to remove Matthew Ragaller as the trustee of the Deed of

Trust and appoint his successor, David A Simpson, P C ("Substi. tute

Trustees) The Suhstrtutron of Trustee rdentrfred Deutsohe Bank

Trust Company Americas as Trustee for Residential Accredit Loans,

Inc Series 2006-QA6 ("Petiti.oner" ) as the holder of the Mote and

the lien created by the Deed of Trust

On 12 Narch 2009, the Substi. tute Trustee commenced this acti.on

by filing a Notice of Hearing on Foreclosure of Deed of Trust with

the Hyde County Clerk of Superior Court pursuant to secti.on 45-21 16

of our General Statutes M C Gen Stat 5 45-21 16 (2009) The

Mot, i.ce of Heax'ing stated, "the current holder of the foregoing Deed

of Trust, and of the debt secured. thereby, is Deutsche Bank Trust

Company Americas as Trustee for Residential Accredit Loans, Inc

Series 2006-QA6

In a letter dated 5 April 2009, Mr Gilbert purported to exercise

hi. s right to rescind the loan txansaction he entered into wi. th the

original lender, First National Bank of Axi. zona, pursuant to the

federal Truth in Lending Act, 15 U S C 5 1635 As justi. fi.cati.on

for his purported resci. ssion, Gi.lbert alleged that the Truth in

Lending Disclosure Statement provided by First National Bank of

Arizona failed to accurately pxovi. de all required materi. al

disclosures including, inter alia, the correct annual percentage

rate and payment schedule The Substitute Txustee responded with

a letter from GMAC ResCap, in which it denied any materi. al disclosureerrors were made and xefused to rescind the loan transaction

The foreclosure hearing was held on 2 June 2009 befoxe the Clerk

of Superior Court of Hyde County The Honorable Sharon G Sadler

entered an Order on 17 June 2009, pexmitting the Substi. tute Trustee

to proceed with the foreclosure In the Order, the Clerk

specifically found, inter a2.za, that Petitioner was the holdex of

the Mote and Deed of Trust that i.t sought to foreclose and the Note

eve. denced a valj d debt owed by Mr Qj.lbert Respondents appealed

the Order to superj or court

The matter came on for a de novo hearjng on 18 August 2009 before

the Honorable Marvj. n K Blount, III, xn Hyde County Super j or CourtDurj. ng the hearj. ng, the trj.al court admj. tted j.nto evj.dence a

certj. fxed copy of the Mote and the Deed of Trust and two affxdavj. ts

attestjng to the valjdj. ty of Qj.lbert's indebtedness pursuant to the

Mote, and that Deutsche Bank Trust Company Amerjcas as Trustee for

Reszdentzal Accredit. t Loans, Inc Serj es 2006-QA6 j.s the current ownerand holder of the Note Addxtxonally, Petj.tj.oner introduced the

orj.gjnal Mote and Allonge for the trz. al court's j.nspectzon

Revj.ewzng the record before thxs Court, the Allonge contains

a serves of j.ndorsements eve. dencxng the alleged assignments of the

Mote, as follows

PAY TO THE ORDER OFFj.rst Nato. onal Bank of NevadaWITHOUT RECOURSE BY

[Sj.gnature]%MY HAWKIMS, ASSISTANT VICE PRESIDENTFIRST NATIONAL BANK OF ARIZONA

Pay to the order ofRESIDENTIAL FUNDIMQ CORPORATIONWithout RecourseFIRST NATIONAL BANK OF NEVADABy [Sjgnature]Deutsche Bank Matj. onal TrustCompany, F/K/A Bankers TrustCompany of Californj. a, M Aas Custodj an as Attorney xn Fact

[Illegible Name and Titlel

PAY TO THE ORDER OFDeutsche Bank Trust Company Americas as TrusteeWITHOUT RECOURSEResidential Funding CorporationBY [Signature]Judy Faber, Vice President

Respondents made two arguments at the hearing Fi.rst,

Respondents argued that the debt evidenced by the Mote no longer

existed, as Nr Gilbert had rescinded the transacti. on for the loan

with First National Bank of Arizona Petitioner objected to

Respondents' resci. ssion argument as being a defense in equity and,

as such, inadmi. ssible in a proceeding held pursuant to M C Gen Stat

5 45-21 16 The trial court agreed and refused to let Respondents'

expert witness testify as to alleged material errors in the Truth

in Lending Disclosure Statement, which Mr Gilbert alleged permitted

him the right to rescind the loan Second, Respondents argued. that

Peti. tioner had not produced suffici. ent evi. dence to establish that

Deutsche Bank Trust Company Americas as Trustee for Residenti. al

Accredi. t Loans, Inc Series 2006-QA6 was the holder of the MoteBased on the preceding evidence, the trial court entered an

order on 18 August 2009 in which it found, izzt:er a2ia Mr Gilbertexecuted the Mote and, with his wife, executed a Deed of Trust in

favor of Fi.rst National Bank of Arizona, secured by the real property

described in the Deed of Trust, a valid debt exists and is owed by

DeniseHighlight

Gilbert't to Petitioner, Gilbert is in default under the Note and Deed

of Trust, proper notice of the foreclosure hearing was given to all

parties as required by N C Gen Stat 5 45-21 16, Petitioner was

the current holder of the Note and the Deed of Trust The trial court

concluded as a matter of law that the requirements of N C Gen Stat

45-21 16 had been satisfied Based on these findings and

conclusion of law, the trial court authorized the Substitute Trustee

to proceed with the foreclosure Respondents timely entered notice

of appeal

II AnalysisA party seeking permission from the clerk of court to proceed

with a foreclosure pursuant to a power of sale contained in a deed

of trust must prove the following statutory req'uirements (1) the

party seeking foreclosure is the holder of a valid debt, (2) default

on the debt by the debtor, (3) the deed of trust provides the right

to foreclose, (4) proper notice was given to those parties entitled

to notice pursuant to section 45-21 16(b) N C Gen Stat

45-21 16 (d) (2009) The General Assembly added a fif th requirement,which expired 31 October 2010 "that the underlying mortgage debt

is not a subprime loan, " or, if it is a subprime loan, "that thepre-foreclosure notice under G S 45-102 was provided in all material

respects, and that the periods of time established by Article 11 of

this Chapter have elapsed[ ]" Id. The role of the clerk of court

z.s limited to making a determz. natz. on on the matters speci. fz.ed by

section 45-21 16(d) See Nosier ex r'el. . Szmon v Druzd IIzlls IazzdCo , Inc. , 199 M C App 293, 295-96, 681 S E 2d 456, 458 (2009)

If the clerk's order is appealed to superior court, that court's dezzovo bearzng is lzmz. ted to making a determznatzon. on the same z.ssues

as the clerk of court See zd.

The trial court's order authorizing the foreclosure to proceed

was a final judgment of the superior court, therefore, thz. s Court

bas jurisdz. ctz.on to hear tbe instant appeal M C Gen Stat

7A-27(b) (2009) Our standard of revz. ew for thz. s appeal, where tbe

trz. al court sat wz. thout a jury, z.s "'whether competent evz. dence

exists to support the trial court's findings of fact and whether the

conclusions reached were proper in light of the fz.ndz. ngs '" In reAdams, M C App , , 693 S E 2d 705, 708 (2010) (quoting In

re Foreclosure of Azalea Garden Bd. 6 Care, inc , 140 M C App 45,

50, 535 S E 2d 388, 392 (2000) )

We note the trial court classifz. ed multiple conclusions of law

as "fzndzngs of fact " We have previously recognized " tt] be

classi. fi.cation of a determination as either a findz. ng of fact or a

conclusion of law is admittedly di. ffz.cult " Zn xe IIelms, 127 M C

App 505, 510, 491 S E 2d 672, 675 (1997) Generally, "any

determinatz. on requiring the exercise of judgment or tbe applicatz. on

of legal prznciples i.s more properly classified a conclusion of law "

Zd. (cztations omztted) Any determznatzon made by "'logzcal

reasonzng from the evzdentzaxy facts, '" however, "zs more properlyclasszfzed a fzndzng of fact " Zd. (quotzng guzck v. guzck, 305 M C

446, 452, 290 S E 2d 653, 657-58 (1982) ) When thzs Court, determines

that fzndzngs of fact and conclusxons of law have been mzslabeled

by the trzal couxt, we may reclasszfy them, whexe necessary, befoxe

applyzng our standard of revzew 1W. C. State Bar v. Key, 189 M C

App 80, 88, 658 S E 2d 493, 499 (2008) (cztzng I'zz re He2ms, 127 M C

App at 510, 491 S E 2d at 675)

Lookzng to the txz.al court's Order, we conclude that the

followzng "fzndzngs of fact" are determinatzons that requzred the

applzcatzon of legal prznczples and are more approprzately

classzfzed as concluszons of law a valzd debt exzsts and zs owed

to Deutsche Bank Trust Company Amerzcas as Trustee for Reszdentzal

Accx'edzt Loans, Inc Serzes 2006-QA6, proper notxce was gzven to and

recezved by all paxtz. es as requzred by M C Gen Stat 5 45-21 16

and the Rules of Czvzl Procedure, Deutsche Bank Trust Company

Amexzcas as Trustee for Reszdentzal Accredz. t Loans, Inc Serzes2006-QA6 zs the current owner and holder of the Mote and Deed of Trust

See Zn re Watts, 38 M C App 90, 92, 247 S E 2d 427, 428 (1978)

(notzng upon the appeal of a M C Gen Stat 5 45-21 16 speczal

proceedzng the trzal court's conc2. uszons oS 2.aw zncluded the

exzstence of a valzd debt, the rzght to foreclose under the deed of

trust, and proper notice to the mortgagors), see a2so Conno22y v.

Potts, 63 M C App 547, 549, 306 S E 2d 123, 124 (1983) (same) In

light of this reclassification of the trial court's findings of fact

and conclusions of law, we turn to the issues raised on appeal

1. Rescission of the Loan TransactionRespondents raise several arguments alleging the trial court

erred by refusing to consider their defense to the foreclosure

action, that the debt Peti. tioner sought to foreclose was not a valid

debt a required element under the statute for foreclosure by powerof sale See M C Qen Stat 5 45-21 16(d)(i) (requiring, inter

a2ia, that the clerk of court must determine that a valid debt

exists) Respondents contend the debt is not valid because Nr

Gilbert rescinded the transaction by which he obtained the loan from

First Mational Bank of Arizona pursuant to the federal Truth in

Lending Act ("TILA"), 15 U S C gg 1601-1667f, and the Federal

Reserve Board's Regulation Z, 12 C F R 5 226 1- 58 We conclude

the trial court did not err

The admissibility of evidence in the tri.al court is based upon

that court' s sound discretion and may be disturbed on appeal only

upon a finding that the decision was based on an abuse of discretion

Sibyls v. Mayo, 162 M C App 549, 561, 591 S H 2d 905, 913 (2004)

Here, we conclude the trial court properly refused to consider

Respondents' evidence of rescission Resci.ssion under the TILA is

an equitable remedy See Am. Nor tg. Network, Inc. v. Slzel ton, 486

F 3d 815, 819 (4th Cir 2007) ("' [A] lthough the right to rescind[under the TILA] i.s [statutory], it remains an. equz. table doctrinesubject to equz. table considerati. ons '" (quoting Brown v. Nat~lPermanent Fed Sav. Z Ioan Ass'n, 683 P 2d 444, 447 (D C Cir 1982) )

Whi. le legal defenses to a foreclosure under a power of sale are

properly rai. sed in a hearing held pursuant to secti.on 45-21 16,

equz. table defenses are not Alatts, 38 H' C App at 94, 247 S E 2d

at 429 As we have previously stated, a hearing under section

45-21 16 is "not intended to settle all matters in controversy

between mortgagor and mortgagee, nor was it designed to provide asecond procedure for invoking equz. table relief " Zd. A party

seeking to rai. se an equitable defense may do so in a separate civi. laction brought in superior court under secti.on 45-21 34 Zd. , I CGen Stat 0 45-21 34 (2009) (stating that a party with a legal or

ec(uz. table interest in the subject property may apply to a superior

court judge to enjoin a sale of the property upon legal or equitable

grounds) Accordingly, the trial court properly concludedRespondents' argument that Mr Gilbert had rescinded the loan

transacti. on, invali. ding the debt Peti. tioner sought to foreclose, was

an equitable defense and not properly before the trial courtRespondents' argument i.s without merit

1 During the pendency of this action, the Gi.lberts filed a

2. Evidence that Petitioner was the Ownex and. Holdexof Mr. Gilbert's Promissory Note

Respondents also argue the 'trial court erred in. ordering the

foreclosure to proceed, as Petitioner did not prove that it was theholder of the Mote with the right to foreclose under the instrument

as requz. red by section. 45-21 16(d)(i) and (iii) We agreeA "foreclosure under a power of sale is not favored in the law

and its exercise will be watched with jealousy " In re Foreclosure

of Goforth Props. i Inc, 334 M C 369, 37S, 432 S E 2d 855, 859 (1993)(citations and internal quotation marks omitted) That the party

seeking to foreclose on a promissory note is the holder of said note

is an. essential element of the action and the debtor is "entitled

to demand strict proof of this element " I&2.es v. Myers, 38 M C

App 525, 528, 248 S E 2d 385, 388 (1978)

For the trial court to find sufficient evidence that Petitioner

is the holder of a valid debt in accordance with section 45-21 16(d),

"this Court has determined that the following two questions must be

separate action against Deutsche Bank Trust Company Americas,Residential Funding, LLC, GMAC Mortgage, LLC, and David A Simpson,P C to litigate, inter alia, their TILA claim in Hyde County SuperiorCourt The defendants removed the action to federal court SeeGz, lbezt v' Deutsche Bank Trust Co. Americas, slip op at 1,4 09-CV-181-D, 2010 WL 2696763 (E D M C t'uly 7, 2010),reconsideration denied, 2010 WL 4320460 (E D M C Oct 19, 2010)Because the Gilberts' claim was filed more than three years afterthe loan transaction was completed, the federal trial court dismissedthe action for failure to state a claim upon which relief could begranted Id at , slip op at 5

answered in tbe affirmative (1) 'is there suffici. ent competentevidence of a valid debt~', and (2) 'is there suffici. ent competentevidence that [the party seeking to foreclose is] the holder[ ] of

tbe notes [that evidence that debt] ~'" Adams, N C App at

693 S E 2d at 709 (quoting In re Cooke, 37 M C App 575, 579, 246

S E 2d 801, 804-05 (1978)), see M C Gen Stat % 45-21 16(d) (2009)

(in order for the foreclosure to proceed, the clerk of court must

find. , znter a2.za, tbe existence of a "valid debt of which the party

seekzng to foreclose zs the holder, " and a "right to foreclose under

the instrument" securing the debt) (emphasis added)

Establishing that a party i.s tbe bolder of the note is essenti. al

to protect tbe debtor from the threat of multiple judgments on tbe

same note

If such proof were not required, the plaznti. ffcould negotiate tbe instrument to a third partywho would become a holder zn due course, bringa suit upon the note in her own name and obtaina judgment in ber favor Requiring proofthat tbe plaintiff is the bolder of tbe note attbe tzme of ber suit reduces tbe possibility ofsuch an inequitable occurrence

Izles, 38 M C App at 527, 248 S E 2d at 387

We have previously determined that the defini. tion of "holder"

under the Uni. form Commercial Code ("UCC"), as adopted by North

Carolina, controls the meaning of tbe term as it used zn secti.on45-21 16 of our General Statutes for foreclosure acti.ons under a

power of sale See Connolly, 63 M C App at 550, 306 S H 2d at 125,

Adams, M C App at , 693 S E 2d at 709 Oux Genexal Statutes

define the "holder" of an instxument as "[tjhe pexson in possessionof a. negoti. able instxument that i.s payable either to bearer or to

an identifi. ed person that is the person. in possession " N C Gen

Stat 5 25-1-201(b) (21) (2009), Econo-Travel Motor Hotel Corp. v'

Taylor, 301 M C 200, 203, 271 S E 2d 54, 57 (1980) Furthermore,

a "'[p]erson. ' means an indivi. dual, corporati. on, business trust,

estate, trust or any other legal or commercial entity " N C

Gen Stat h 25-1-201 (b) (27) (2009)

As addressed above, we conclude the trial court properly found

that a valid debt existed The remaining i.ssue before this Court

is whether there was competent evidence that Petiti. oner was the

holder of the Mote that evidences Nr Gi.lbert's debt

In suppoxt of its argument that it provided competent evi. denceto support the txi.al court's findings, Petitioner fi.rst points to

its production of the original Mote wi. th the Allonge at the de novo

hearing, as well as its intxoduction into evi. dence true and accurate

copies of the Mote and Allonge Petitioner asserts this evidence

"plainly evidences the transfers" of the Note to Petitioner Ne

cannot agxee

Under the UCC, as adopted by Moxth Carolina, "[ajn instrument

is txansfexred when it is delivered by a person other than its issuer

for the purpose of giving to the person receiving delivery the right

to enforce the instrument " M C Gen Stat 5 25-3-203(a) (2009)

Production of an original note at trial does not, in itself, establi. sh

that the note was transferred to the party presenting the note with

the purpose of giving that party the right to enforce the instrument,

as demonstrated zn ConnoZZy, 63 M C App at 551, 306 S E 2d at 125,

and Smathers v. Bmathers, 34 M C App 724, 726, 239 S E 2d 637, 638

(1977) (holding that despite evidence of voluntary transfer of

promissory notes and the plaintiff's possession thereof, the

plaintiff was not the holder of the note under the UCC as the notes

were not drawn. , issued, or indorsed to her, to bearer, or in blank

"[T]he plaint'. ff testified to some of the circumstances under which

she obtained possession of the notes, but the trial court made no

findings of fact wi. th respect thereto ")

In CoxznoZZy, determining who had possession of the note became

the critical question for the foreclosure proceeding 63 M C Appat 551, 306 S H 2d at 125 Several years prior to the foreclosure

proceedings at issue in CoznoZZy, the petitioners obtained a loan

from a bank and pledged as collateral a promissory note that was

payable to the petitioners by assigning and delivering the note to

the bank Id at 549, 306 S H 2d at 124 After obtaining their

loan, the petitioners sought to foreclose on the promissory note and

deed of trust, which was in the bank's possession, but were denied

at the special proceeding before the clerk of court Xd at 548,

306 S E 2d at 124 Tbe petj tj.oners appealed the decxsxon to super&or

court Xd. Dura. ng tbe de novo bearding, the petj. tj.oners testz. fj.ed

their loan to the bank bad been paj.d, but "they had left tbe [] note

at the bank, for securj. ty purposes " Zd at 551, 306 S E 2d at 125

The petj. txoners, however, "introduced tbe orjgj.nals of tbe note and

deed. of trust" durj. ng the hearj. ng 1d. Tbe trz. al court found the

bank was jn possessj. on of the note and concluded, as a matter of law,

tbe petxtj. oners were not tbe holders of the note at the j.nstxtutxon

of tbe foreclosure proceedings, the foreclosure was agar. n denj ed

Connolly, 63 M C App at 550, 306 S E 2d at 124-25 On appeal, tbj.s

Court concluded that despite the fact that the party seekj.ng

foreclosure jntroduced tbe orjgj.nal note at the tjme of the de novo

hearjng, the trz. al court's fxndjngs of fact dz. d not address whether

the pets. tj.oners were xn possess'. on of the note at the time of the

trial, tbe trial court's judgment was vacated and remanded Zd at

551, 306 S E 2d at 125-26

Sjmj.larly, bere, the trial court's fj.ndxngs of fact do not

address who bad possessjon of Mr Gj lbert's note at the tame of the

de novo bearding Wz. thout a determxnatj. on of wbo bas pbysj cal

possessj. on of the Mote, the trj.al court cannot determz. ne, under the

UCC, the entity that xs the holder of the Mote See M C Gen Stat

25-1-201(b) (21) (defxnxng "bolder" as "the person zn possession

of a negotiable instrument that is payable either to bearer or to

an identified person that is the person zn possession") (emphasis

added), Connolly, 63 N C App at 550, 306 S H 2d at 125 ("It is thefact of possession which is significant in determining whether a

person is a holder, and the ahsence of possession defeats that

status ") (emphasis added) Accordingly, the trial court's

findings of fact do not support the conclusion of law that Petitioner

is the holder of Nr Gilbert's note

Assuming arguendo that production of the Mote was evidence of

a transfer of the Note pursuant to the UCC and that Petitioner was

zn possession of the Mote, this is not sufficient evidence that

Petitioner is the "holder" of the Mote As di. scussed zn detail

below, the Mote was not indorsed to Petitioner or to bearer, a

prerequisite to confer upon Petitioner the status of holder under

the UCC See M C Gen Stat 5 25-1-201(b)(21) (requiring that, to

be a holder, a person must be in possession of the note payable to

bearer or to the person in possession of the note) " ' [Nj ere

possession' of a, note by a party to whom the note has neither been

indorsed nor made payable 'does not suffice to prove ownership or

holder status '" Adams, M C App at , 693 S E 2d at 710(quoting Econo-Travel Motor Hotel Corp. , 301 M C at 203, 271 S E 2d

at 57)

Petiti. oner acknowledges that following the signing of the Mote

by Mr Gilbert, the Mote was sequentially assigned to several

entities, as indi. cated by the seri. es of indorsements on the Allonge,

reprinted above Respondents argue these indorsements present two

problems First, Respondents state that Petitioner did not provide

any evidence to establi. sh that Deutsche Bank Mati. onal Trust Company

had the authority, as the attorney-in-fact for Fi.rst Mati. onal Bank

of Nevada, to assign the Note to Resi.dential Funding Corporation in

the second assignment Respondents make no argument and ci.te noauthority to establi. shthat such evi. dence is needed Therefore,we do not address the merits of thi s alleged error and deem itabandoned See M C R App P 28 (6) (2011) ("Issues not presented

in a party's bri. ef, or in support of whi. ch no reason or argument i.s

stated, wi. ll be taken as abandoned ")Second, Respondents argue Petitioner has not offered suffi. cient

evidence that Deutsche Bank Trust Company Americas as Trustee for

Residential Accredit Loans, Inc Series 2006-QA6 was the holder of

the Mote and, thus, the party enti. tied to proceed with the foreclosure

actj.on Ne agree

Respondents note the third and final assignment on the Allonge

was made to "Deutsche Bank Trust Company Americas as Trustee, " whi. ch

is not the party asserting a security interest in Respondents'

property, thi. s action was brought by Deutsche Bank Trust Company

Americas as Trustee for Residential Accredit Loans, Inc Seri.es

2006-QA6, tbe enti. ty the trial court found to be the owner and holder

of the Mote Section 3-110 of tbe UCC, as codified in our Genexal

Statutes, states in pertinent part

For the purpose of determining the holder of aninstxument, the following rules apply

(2) If an instxument is payable to (i) a trust,an estate, oz a person described as trustee orrepresentative of a txust or estate, theinstrument is payab2e to the trustee, tberepresentative, ox a successor of either,whether or not tbe beneficiary ox estate is alsonamed

M C Gen Stat 5 25-3-110 (c) (2009) (emphasis added)

Additionally, the official comments to this section of the UCC state,

zn part, "This provi. sion merely determines who can deal with an

instxument as a holdex It does not determine ownership of theinstrument or its proceeds " I'd 5 25-3-110, Official Comment. 3

In the present case, tbe Mote is clearly indoxsed "PAY TO THE

ORDER OF Deutsche Bank Tx'ust Company Americas as Trustee " Thus,

pursuant to section 25-3-110(c) (2), the Note is payable to Deutsche

Bank Trust Company Americas as Trustee See Zd Because tbe

indorsement does not identi fy Petitioner and zs not indorsed in blank

or to bearer, i.t cannot be competent evidence that Peti. tioner is theholder of the Note See M C Gen Stat 5 25-1-201(b) (21) (defining

"holder" as "[t]he person in possession of a negotiable instrumentthat is payable either to bearer or to an identified person that isthe person zn possession"), Econo-Travel Motor Hotel Corp. , 301 M C

at 204, 271 S H 2d at 57 (concluding that where the defendants

produced a copy of the note indorsed to an entity other than the

plaintiff, the "defendants established that plaintiff was not the

owner or holder of the note")

In addition to the Mote and Allonge, Petitioner points to two

affidavits provided by two GNAC Mortgage employees as further

evidence that the trial court's findings are based on suffi. cient

competent evi. dence Again, we disagree

The first affidavit is an Affidavit of Indebtedness by Jeffrey

Stephan ("Stephan" ) ' In his affidavit, Stephan averred, inter

2 This Court finds troubling that GNAC Mortgage, LLC wasrecently found to have submitted a false affidavit by Signing OfficerJeffrey Stephan zn a motion for summary judgment against a mortgagorin the United States District Court of Maine Judge John H Rich,III concluded that GNAC Mortgage submitted Stephan' s false affidavitin bad faith and levi. ed sanctions against GNAC Mortgage, stating

[T]he attestation to the Stephan affidavit wasnot, in fact, true, that is, Stephan did not knowpersonally that all of the facts stated in theaffidavit were true GNAC [Nortgage] wason notice that the conduct at issue here wasunacceptable to the courts, which rely on swornaffidavits as admissible evidence in connection.with motions for summary judgment In 2006, anidentical jurat signed under i.denti. calcircumstances resulted in the imposition. ofsanctions against GNAC [Mortgage] in Florida

-20-

aZia, he was a limited signing officer for GMAC Mortgage, the

sub-servicer of Mr Gilbert's loan, and as such, was "familiar with

tbe books and records of [GNAC Mortgage1, specifically payments made

pursuant to the Mote and Deed of Trust " Accordingly, Stephan

testifi. ed as to the principal amount of Mr Gilbert's loan and to

his history of loan payments Stephan further testi. fied that after

the Mote and Deed of Trust were executed they were "delivered" to

the original lender, Pi.rst Mational Bank of Arizona, tbe original

lender then "assigned and transferred all of its right, title andinterest" to First National Bank of Nevada, which, in turn, assigned

all its rights, title, and interest in the instruments to ResidentialFunding Corporation The final assignment to which Stephan averred

is an assignment and securitizati. on of the Mote and Deed of Trust

from Residential Funding Corporation to "Deutsche Bank Trust Company

Americas as Trustee " Stephan then makes the conclusory statement,

"Deutsche Bank Trust Company Americas as Trustee for Residential

Accredit Loans, Inc Series 2006-QA6 is the current owner and bolder

of the Mote and Deed of Trust described herein

Whether Deutsche Bank Trust Company Americas as Trustee for

Residential Accredit Loans, Inc Series 2006-QA6 is the owner and

holder of the Mote and Deed of Trust is a legal conclusion that is

Zames v. V S. Bank Mat. Ass~n, 272 P R D 47, 48 (D Me 2011)

to be detexmined by a court of law on the basis of factual allegations

As such, we disregard Stephan's conclusion as to the identity of the

"owner and holder" of the instruments See Lemon v Combs, 164 M C

App 615, 622, 596 S H 2d 344, 349 (2004) {"'Statements in affidavits

as to opinion, belief, or conclusions of law are of no effect

(cLuoting 3 Am Jur 2d, Affidavits 5 13 (2002))), see a2so Speedway

Motorsports Inter Ltd. v Bronwen Energy Trading, Ltd. , M C App

n 2, S 8 2d , n 2, slip op at 12 n 2, Mo 09-1451

(Feb 15, 2011) {rejecting a party's contention that this Court must

accept as true all statements found xn the affidavits in the xecord,

stating, "our standard of review does not req'uvre that we accept a

witness' chaxacterxzatxon of what 'the facts' mean") While Stephan

referred to a Pooling and Servicing Agxeement ("PSA") that allegedly

governs the secuxxtxzation of the Note to Deutsche Bank Trust Company

Americas as Trustee, the PSA was not included xn the recoxd and will

not be considered by this Court See M C R App P 9(a) (2011)

{"In appeals fx'om the trial division of the General Court of Justice,review is solely upon the record on appeal, the verbatim transcript

of proceedings, xf one is designated, and any other items filed

pursuant to this Rule 9 ") The record, xs void of any evidence the

Mote was assigned and securitized to a trust

We also note that Stephan alleged no facts as to who possesses

Mr Gilbert's note, other than his averment that the Note was

"delivered" to the original lender, First National Bank of Arizona

Stephan referred to a statement made by counsel for GNAC Mortgage

that the original Mote "would be brought to the foreclosure hearing, "

but he did not provide any facts from which the trial court could

determine who has possession of the Mote As demonstrated by

Conno22y, discussed above, production of a note at trial is not

conclusive evidence of possession 63 M C App at 551, 306 S E 2d

at 125 Thus, we conclude Stephan's affidavit is not competent

evidence to support the trial court's conclusion that Deutsche BankTrust Company Americas as Trustee fox Residential Accredit Loans,

Inc Series 2006-QA6 is the owner and holder of Nr Gilbert's note

Petitioner also provided the affidavit of Scott Zeitz

("Zeitz"), who alleged in his affidavit to be a litigation analyst

for GMAC Plortgage Zeitz's basis for his affidavit testimony is that

he works with "the documents that relate to account histories and

account balances of particular loans" and that he is familiar with

Mr Gilbert's account Accordingly, Zeitz testified to the details

of Mr Gilbert's loan and the terms of the Note Zeitz's affidavit,

substantially similar to the affidavit of Jeffrey Stephan, also

averred to the transfer of the Mote and Deed of Trust through the

series of entities indicated on the Allonge, stating in part

Residential Funding Corporation sold, assigned.and transferred all of its right, title andinterest in and to the Mote and Deed. of Trust

-23-

to Deutsche Bank Trust Company Americas asTrustee for Residential Accredzt Loans, IncSeries 2006 QA6 Thzs zs ref1ected on theAllonge to tlze Note, a true and accurate copyof wlzzclz zs attaclzed and incorporated hereto asEXHIBIT 5 (Emphasis added )

This statement is factually zncorrect, the Allonge in the record

contains no indorsement to Deutsche Bank Trust Company Americas as

Trustee for Residential Accredit Loans, Inc Ser zes 2006-QA6 Zeztz

further stated that "Deutsche Bank Trust Company Amerz. cas as Trustee

for Residential Accredit Loans, Inc Series 2006-QA6 is tbe current

owner and holder of the Note and Deed of Trust " This statement is

a legal conclusion postured as an allegation. of fact and as such will

not be considered by this Court See Lemon, 164 M C App at 622,

596 S E 2d at 349

Unlzke Jeffrey Stephan, Zeitz stated that Deutsche Bank Trust

Company Americas as Trustee for Resz.dential Accredit Loans, Inc

Series 2006-QA6 "has possession. of the orzginal Mote and Deed. of

Trust " We note, however, that "[wl hen an affiant makes a conclusion

of fact, z t must appear that the af f iant had an opportunity to observeand dzd observe matters about which he or she testifies " Lemon,

164 N C App at 622, 596 S E 2d at 348-49 (c(uoting 3 Am Jur 2d

Affzdav'zts 5 13) (znternal quotation marks omitted) Moreover,

[tj he personal knowledge of facts asserted. znan affidavit is not presumed from a merepositive averment of facts but rather the courtshould be shown how the affiant knew or could

have known. such facts and zf there zs no evz. dencefrom which an znference of personal knowledgecan be drawn, then zt zs presumed that such doesnot exzst

Xd. at 622-23, 596 S E 2d at 349 (quotzng 3 Am Jur 2d Affzdavzts

5 14, czted wztl2 approval. zn Currztuck Assoczates Reszdentzal 5''sizz@

v' tIol2owell, 170 M C App 399, 403-04, 612 S 8 2d 386, 389 (2005))

Thus, wbzle Zeztz concluded as fact that Deutsche Bank Trust Company

Amerz. cas as Trustee for Reszdentzal Accredzt Loans, Inc Serves

2006-QA6 bas possesszon of the Mote, hz. s affzdavzt provides no basz. s

upon which we can conclude he had personal knowledge of this alleged

fact Because of these defzczencz. es, we conclude that nez. ther the

affzdavzt of Jeffrey Stephan nor tbe affzdavzt of Scott Zeztz zs

competent evzdence to support tbe trzal court' s fzndzng that Deutsche

Bank Trust Company Amerzcas as Trustee for Reszdentzal Accredzt

Loans, Inc Serzes 2006-QA6 zs tbe owner and holder of Nr Gzlbert's

note

XIl. Conclusion

We conclude tbe record zs lackzng of competent evzdence

suffzczent to support that Petztzoner zs tbe owner and holder of Nr

Gzlbert's note and deed of trust The trz. al court, erred zn

permzttzng tbe Substztute Trustee to proceed wztb foreclosure

proceedzngs and zts order zs

-25-

Reversed

Judges MCGEE and BEASLEY concur

Exhibit A - Page 1 of 2

EXHIBIT C

Exhibit A - Page 2 of 2

Judy-Faber-EXHIBIT-A.pdfJudy-Faber-Exhibit-A.pdfUS Bank is not the Note Holder North Carolina: Bass vs. US Bank