STATE OF NORTH CAROLINA COUNTY OF GASTON In the matter of the foreclosure of a Deed of Trust executed by _____ _.

______ and _____ _. ______ in the original amount of $000,000.00 dated __________ 00, 0000 and recorded in Book ____ at Page ____ in the Gaston County Public Registry, North Carolina Substitute Trustee: Grady Ingle or Elizabeth Ells

IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION BEFORE THE CLERK 08 SP ___

MOTION TO SET ASIDE A PROCEEDING AS VOID N.C.G.S. 1A-1, Rule 60(b)(4)

NOW COMES, ___________________ (Movant), in the above captioned matter pursuant to Rule 60(b)(4) of the North

Carolina Rules of Civil Procedure and moves to set aside that voluntary dismissal filed herein on ___ __, 0000 as void, and in support thereof states:
1.

On

_______

__,

0000,

Grady

Ingle,

Substitute

Trustee (hereinafter Trustee), initiated the above captioned foreclosure by filing a Notice of Hearing with the Gaston County Clerk.
2.

A hearing before the Clerk was held on ___ __, 0000.

That same day, the Clerk entered an order allowing the Trustee to proceed to foreclosure sale. The clerks order was a final judgment in that it left nothing to be judicially determined.

Indeed,

the

Clerk

characterized

her

order

as

such

in

concluding that the trustee is hereby authorized to proceed with foreclosure of the deed of trust in the manner prescribed by law. A true copy of that order is attached hereto as Exhibit A and incorporated by reference.
3.

After

the

clerk for on

entered

final the

judgment Trustee

on filed

the a the a

Trustees voluntary purported

petition dismissal voluntary

foreclosure, ___ __, 0000. of

Discussed no legal

infra,

dismissal

is

efficacy,

nullity. A true copy of that dismissal is attached hereto as Exhibit B and incorporated by reference.
4.

The

General

Assembly

has

provided

specific

procedures for conducting a power of sale foreclosure. Among those are provisions governing foreclosures after the clerk has entered its decision. If 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. N.C. Gen. Stat. 1-301.1.1

Further, the clerks order is a final judgment and remains in effect until it is . . . replaced by an order or judgment of a judge. Id. A notice of appeal de novo neither stays nor
1

Here, Movant had until ___ __, 0000 to file an appeal; however, that right was cut off by the Trustees voluntary dismissal filed on ___ __, 0000.
2

renders

the

clerks

order

moot.

There

is

absolutely

no

provision granting the trustee the authority to voluntarily dismiss this action after the clerk had entered her decision.
5.

In all actuality, the Trustee seeks to set aside the

Clerks order by the use or attempted use of a voluntary dismissal for which he has no authority. The usual method for seeking relief is by filing a motion under Rule 60(b) of the North Carolina Rules of Civil Procedure. Nonetheless, other means may be sufficient. Nomenclature is unimportant, moving papers that are mislabeled in other ways may be treated as motions under Rule 60(b) when relief would be proper under that rule. 7 J. Moore & J. Lucas, Moore's Federal Practice 60.18[8], at 60-139 (2d ed. 1983). Although Rule 60 says that the court is to act on motion, it does not deprive the court of the power to act in the interest of justice in an unusual case where its attention has been directed to the necessity for relief by means other than a motion. Taylor v. Triangle Porsche-Audi, Inc., 27 N.C. App. 711, 717, 220 S.E.2d 806, 811 (1975), cert. denied, 289 N.C. 619, 223 S.E.2d 396 (1976). In the event this Court as properly a motion characterizes to set the Trustees clerks

voluntary

dismissal

aside

the

order, Movant opposes any and all relief sought.

6.

Undeniably, a voluntary dismissal is proper only

when made prior to the entry of final judgment. Wood v. Wood, 37 N.C. App. 570, 574-75, 246 S.E.2d 549, 552 (1978), revd on other grounds, 297 N.C. 1, 252 S.E.2d 799 (1979). After final judgment, any correction, modification, amendment, or setting aside of the judgment can be done only by the court. Id. at 575, 246 S.E.2d at 552. In the case at bar, the Trustees notice of voluntary dismissal came after the clerk entered final judgment on the Trustees petition for foreclosure. The Trustees purported voluntary dismissal was, therefore, of no legal efficacy. Id. Void, a nullity, invalid from the outset.
7.

Discussed supra, extensive research has failed to

disclose any rule, statute, or case which grants a trustee or mortgagee the right to take a voluntary dismissal, whether with or without prejudice, after the clerk has reached a final decision. For very good reason. It would render the clerks role in Chapter 45 proceedings ministerial and its decisions meaningless. It is not permissible to allow a party to

successfully attack a final judgment by the use or attempted use of a voluntary dismissal. As discussed, any correction, modification, amendment, or setting aside of a judgment can be done only by the court. Id.

8.

Our Court has explicitly recognized the right to

invoke Rule 60 in a foreclosure action. In re Foreclosure of Lien by Ridgeloch Homeowners Ass'n, 182 N.C. App. 464, 469, 642 S.E.2d 532, 536 (2007) (affirming the Clerks order

setting aside a foreclosure judgment pursuant to Rule 60). In Bradley v. Bradley, the Court specifically approved of the use of a Rule 60(b)(4) motion to challenge whether a party had the authority to voluntarily dismiss an action without prejudice. Bradley v. Bradley, 206 N.C. App. 249, 252, 254, 697 S.E.2d 422, 426 (2010).
9.

In Bradley, the Court wrote: A voluntary dismissal

can be considered a proceeding allowing relief under Rule 60(b). Id; (quoting Carter v. Clowers, 102 N.C. App. 247, 252-53, 401 S.E.2d 662, 665 (1991). Rule 60(b)(4) allows for relief from a judgment, order, or proceeding when it is void. Id. In the context of Rule 60(b)(4), a judgment, order, or proceeding is void only when the issuing court has no

jurisdiction over the parties or subject matter in question or has no authority to render the judgment entered. Id; (quoting Chandak v. Electronic Interconnect Corp., 144 N.C. App. 258, 262, 550 S.E.2d 25, 28 (2001)) (emphasis added).
10.

In order for the trial court to properly vacate the

Trustees voluntary dismissal pursuant to Rule 60(b)(4), the

5

Trustee cannot have had the authority to voluntary dismiss his. . . . .claim[s] for relief. Id. Because the Trustee lacked the authority to dismiss this action after the clerk had entered her decision, this Court is empowered to vacate that dismissal as void pursuant to Rule 60(b)(4) of the North Carolina Rules of Civil Procedure.
11.

The purpose of Rule 60(b) is to strike a proper

balance between the conflicting principles of finality and relief from unjust judgments, orders or proceedings. Carter at 254, 401 S.E.2d at 666. Procedural actions that prevent

litigants from having the opportunity to dispose of their case on the merits are not favored. Id.
12.

Although Rule 60(b) contains the requirement that

all motions made pursuant thereto be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order, or proceeding was entered or taken. The requirement is not enforceable with respect to motions made pursuant to Rule 60(b)(4), because a void judgment, order or proceeding is a legal nullity which may be attacked at any time. Allred v. Tucci, 85 N.C. App. 138, 141, 354 S.E.2d 291, 294 (1987). WHEREFORE, Movant moves the Court as follows:

1. North

For an Order, as contemplated under Rule 60 of the Carolina Rules of Civil Procedure, to declare that

voluntary dismissal filed on ___ __, 0000 to be void; 2. For an Order, alternatively, denying the Trustees

motion to set aside the Clerks order; 3. For an Order, permitting Movant to proceed with her

appeal of the Clerks order entered on ___ __, 0000; 4. For an Order, awarding Movant reasonable attorney

fees and cost related to this matter; and 5. For such other and further relief as the Court may

seem just and proper.

Respectfully submitted this the 8th day of July, 2013.

_________________________________