Pannill Knitting Co. v. Golden Corral Corp.

ORR, Judge. Procedures for conducting foreclosure sales of parts or parcels of real property described in a deed of trust are set out in N.C.G.S. §§ 45-21.8 and 45-21.9. These statutes read as follows: § 45-21.8. Sale as a whole or in parts. (a) When the instrument pursuant to which a sale is to be held contains provisions with respect to whether the property therein described is to be sold as a whole or in parts, the terms of the instrument shall be complied with. (b) When the instrument contains no provisions with respect to whether the property therein described is to be sold as a whole or in parts, the person exercising the power of sale may, in his discretion, subject to the provisions of G.S. 45-21.9, sell the property as a whole or in such parts or parcels thereof as are separately described in the instrument, or [678] he may offer the property for sale by each method and sell the property by the method which produces the highest price. (c) This section does not affect the equitable principle of marshaling assets. (1949, c. 720, s. 1.) § 45-21.9. Amount to be sold when property sold in parts; sale of remainder if necessary. (a) When a person exercising a power of sale sells property in parts pursuant to G.S. 45-21.8 he shall sell as many of such separately described units and parcels as in his judgment seems necessary to satisfy the obligation secured by the instrument pursuant to which the sale is being made, and the costs and expenses of the sale. (b) If the proceeds of a sale of only a part of the property are insufficient to satisfy the obligation secured by the instrument pursuant to which the sale is made and the costs and expenses of the sale, the person authorized to exercise the power of sale may readvertise the unsold property and may sell as many additional units or parcels thereof as in his judgment seems necessary to satisfy the remainder of the secured obligation and the costs and expenses of the sale. As to any such sale, it shall not be necessary to comply with the provisions of G.S. 45-21.16 but the requirements of G.S. 45-21.17 relating to notices of sale shall be complied with. (c) When the entire obligation has been satisfied by a sale of only a part of the property with respect to which a power of sale exists, the lien on the part of the property not so sold is discharged. (d) The fact that more property is sold than is necessary to satisfy the obligation secured by the instrument pursuant to which the power of sale is exercised does not affect the validity of the title of any purchaser of property at any such sale. (1949, c. 720, s. 1; 1975, c. 492, s. 15.) In order for us to determine whether the trustee properly conducted the second foreclosure sale according to law the record must reflect: (1) whether the deed of trust foreclosed upon expressly authorized the trustee to sell the property in parcels upon [679] default, or (2) whether the property was actually described in separate parcels in the instrument. The record does not contain a copy of the deed of trust nor a stipulation by the parties as to its contents. Therefore, no evidence was presented upon which we could conclude that the second foreclosure violated any statutory provisions. “There is a presumption of law in favor of regularity in the exercise of the power of sale in a mortgage or deed of trust.” Edwards v. Hair, 215 N.C. 662, 664, 2 S.E. 2d 859, 860 (1939) (citations omitted). “Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Colony Hill Condominium I Assoc. v. Colony Co., 70 N.C. App. 390, 392, 320 S.E. 2d 273, 275 (1984), disc. rev. denied, 312 N.C. 796, 325 S.E. 2d 485 (1985) (citation omitted). On the record as it currently stands, we find no genuine issue of material fact. Plaintiff has failed to show that as a matter of law the substitute trustee conducted the second foreclosure sale improperly. We must conclude therefore that defendants are entitled to a judgment as a matter of law. We affirm the trial court’s order granting defendants summary judgment. Affirmed. Judge JOHNSON concurs. Judge Phillips dissents.