An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-1247
                       NORTH CAROLINA COURT OF APPEALS

                               Filed: 15 July 2014




IN THE MATTER OF THE                          Swain County
FORECLOSURE OF THE DEED OF                    No. 09-SP-77
TRUST OF MARSHALL E. CORNBLUM
and MADELINE H. CORNBLUM,
husband and wife,
Grantors,

AS RECORDED IN BOOK 362, AT PAGE
776 OF THE SWAIN COUNTY PUBLIC
REGISTRY.

                        v.

WILLIAM RICHARD BOYD, JR.,
Substitute Trustee

SEE APPOINTMENT OF SUBSTITUTE
TRUSTEE AS RECORDED IN BOOK 379 AT
PAGE 775 OF THE SWAIN COUNTY
PUBLIC REGISTRY.

__________

IN THE MATTER OF THE                          Swain County
FORECLOSURE OF THE DEED OF                    No. 09-SP-78
TRUST OF MARSHALL E. CORNBLUM
and MADELINE H. CORNBLUM,
husband and wife,
Grantors,

AS RECORDED IN BOOK 332, AT PAGE
904 OF THE SWAIN COUNTY PUBLIC
REGISTRY.

                       v.
                                -2-


WILLIAM RICHARD BOYD, JR.,
Substitute Trustee

SEE APPOINTMENT OF SUBSTITUTE
TRUSTEE AS RECORDED IN BOOK 379 AT
PAGE 783 OF THE SWAIN COUNTY
PUBLIC REGISTRY.
__________

IN THE MATTER OF THE                  Swain County
FORECLOSURE OF THE DEED OF            No. 09-SP-79
TRUST OF MARSHALL E. CORNBLUM
and MADELINE H. CORNBLUM,
husband and wife,
Grantors,

AS RECORDED IN BOOK 329, AT PAGE
851 OF THE SWAIN COUNTY PUBLIC
REGISTRY.

                   v.

WILLIAM RICHARD BOYD, JR.,
Substitute Trustee

SEE APPOINTMENT OF SUBSTITUTE
TRUSTEE AS RECORDED IN BOOK 379 AT
PAGE 785 OF THE SWAIN COUNTY
PUBLIC REGISTRY.

__________

IN THE MATTER OF THE                  Swain County
FORECLOSURE OF THE DEED OF            No. 09-SP-80
TRUST OF MARSHALL E. CORNBLUM
and MADELINE H. CORNBLUM,
husband and wife,
Grantors,

AS RECORDED IN BOOK 339, AT PAGE
117 OF THE SWAIN COUNTY PUBLIC
REGISTRY.
                                -3-
                   v.

WILLIAM RICHARD BOYD, JR.,
Substitute Trustee

SEE APPOINTMENT OF SUBSTITUTE
TRUSTEE AS RECORDED IN BOOK 379 AT
PAGE 791 OF THE SWAIN COUNTY
PUBLIC REGISTRY.
__________

IN THE MATTER OF THE                  Swain County
FORECLOSURE OF THE DEED OF            No. 09-SP-81
TRUST OF MARSHALL E. CORNBLUM
and MADELINE H. CORNBLUM,
husband and wife,
Grantors,

AS RECORDED IN BOOK 328, AT PAGE
133 OF THE SWAIN COUNTY PUBLIC
REGISTRY.

                   v.

WILLIAM RICHARD BOYD, JR.,
Substitute Trustee

SEE APPOINTMENT OF SUBSTITUTE
TRUSTEE AS RECORDED IN BOOK 379 AT
PAGE 777 OF THE SWAIN COUNTY
PUBLIC REGISTRY.

__________

IN THE MATTER OF THE                  Swain County
FORECLOSURE OF THE DEED OF            No. 09-SP-82
TRUST OF MARSHALL E. CORNBLUM
and MADELINE H. CORNBLUM,
husband and wife,
Grantors,

AS RECORDED IN BOOK 326, AT PAGE
962 OF THE SWAIN COUNTY PUBLIC
REGISTRY.
                                -4-


                  v.

WILLIAM RICHARD BOYD, JR.,
Substitute Trustee

SEE APPOINTMENT OF SUBSTITUTE
TRUSTEE AS RECORDED IN BOOK 379 AT
PAGE 789 OF THE SWAIN COUNTY
PUBLIC REGISTRY.
__________

IN THE MATTER OF THE                  Swain County
FORECLOSURE OF THE DEED OF            No. 10-SP-01
TRUST OF MARSHALL E. CORNBLUM
and MADELINE H. CORNBLUM,
husband and wife,
Grantors,

AS RECORDED IN BOOK 336, AT PAGE
646 OF THE SWAIN COUNTY PUBLIC
REGISTRY.

                   v.

WILLIAM RICHARD BOYD, JR.,
Substitute Trustee

SEE APPOINTMENT OF SUBSTITUTE
TRUSTEE AS RECORDED IN BOOK 379 AT
PAGE 779 OF THE SWAIN COUNTY
PUBLIC REGISTRY.

__________

IN THE MATTER OF THE                  Swain County
FORECLOSURE OF THE DEED OF            No. 10-SP-02
TRUST OF MARSHALL E. CORNBLUM
and MADELINE H. CORNBLUM,
husband and wife,
Grantors,

AS RECORDED IN BOOK 346, AT PAGE
565 OF THE SWAIN COUNTY PUBLIC
                                -5-
REGISTRY.

                   v.

WILLIAM RICHARD BOYD, JR.,
Substitute Trustee

SEE APPOINTMENT OF SUBSTITUTE
TRUSTEE AS RECORDED IN BOOK 379 AT
PAGE 773 OF THE SWAIN COUNTY
PUBLIC REGISTRY.
__________

IN THE MATTER OF THE                  Swain County
FORECLOSURE OF THE DEED OF            No. 10-SP-06
TRUST OF MARSHALL E. CORNBLUM
and MADELINE H. CORNBLUM,
husband and wife,
Grantors,


AS RECORDED IN BOOK 346, AT PAGE
582 OF THE SWAIN COUNTY PUBLIC
REGISTRY.

                   v.

WILLIAM RICHARD BOYD, JR.,
Substitute Trustee

SEE APPOINTMENT OF SUBSTITUTE
TRUSTEE AS RECORDED IN BOOK 379 AT
PAGE 797 OF THE SWAIN COUNTY
PUBLIC REGISTRY.

__________

IN THE MATTER OF THE                  Jackson County
FORECLOSURE OF THE DEED OF            09-SP-451
LONGBRANCH PROPERTIES, L.L.C., a
North Carolina Limited Liability
Company,
Grantor,
                               -6-
AS RECORDED IN BOOK 1656, AT PAGE
50 OF THE JACKSON COUNTY PUBLIC
REGISTRY.

                  v.

WILLIAM RICHARD BOYD, JR.,
Substitute Trustee

SEE APPOINTMENT OF SUBSTITUTE
TRUSTEE AS RECORDED IN BOOK 1829
AT PAGE 270 OF THE JACKSON COUNTY
PUBLIC REGISTRY.
__________

IN THE MATTER OF THE                 Jackson County
FORECLOSURE OF THE DEED OF           09-SP-453
LONGBRANCH PROPERTIES, L.L.C., a
North Carolina Limited Liability
Company,
Grantor,

AS RECORDED IN BOOK 1603, AT PAGE
11 OF THE JACKSON COUNTY PUBLIC
REGISTRY.

                  v.

WILLIAM RICHARD BOYD, JR.,
Substitute Trustee

SEE APPOINTMENT OF SUBSTITUTE
TRUSTEE AS RECORDED IN BOOK 1829
AT PAGE 272 OF THE JACKSON COUNTY
PUBLIC REGISTRY.
__________

IN THE MATTER OF THE                 Jackson County
FORECLOSURE OF THE DEED OF           09-SP-454
LONGBRANCH PROPERTIES, L.L.C., a
North Carolina Limited Liability
Company,
Grantor,
                                  -7-
AS RECORDED IN BOOK 1667, AT PAGE
47 OF THE JACKSON COUNTY PUBLIC
REGISTRY.

                   v.

WILLIAM RICHARD BOYD, JR.,
Substitute Trustee

SEE APPOINTMENT OF SUBSTITUTE
TRUSTEE AS RECORDED IN BOOK 1829
AT PAGE 268 OF THE JACKSON COUNTY
PUBLIC REGISTRY.



    Appeal   by   Marshall   E.   Cornblum,   Madeline   H.   Cornblum,

Michael Cornblum, Carolyn Cornblum, and Longbranch Properties,

LLC, from order entered 6 May 2013 by Judge James U. Downs in

Swain County Superior Court.


    SHANAHAN LAW GROUP, PLLC, by Kieran J. Shanahan, Brandon S.
    Neuman, and John E. Branch III, for appellants.

    VAN WINKLE, BUCK, WALL, STARNES & DAVIS, P.A., by Lynn D.
    Moffa and Esther Manheimer, for appellees.



    ELMORE, Judge.


    After careful review, we hold that the trial court erred in

denying the appellants-mortgagors’ motion for order denying the

appellee-mortgagee’s motion to confirm the arbitration award.
                                        -8-
The trial court lacked subject matter jurisdiction to enter said

order.      Accordingly, we vacate the trial court’s order.

                                   I.        Background



       This case is now before this Court for the second time on

appeal.       See In re Cornblum, ___ N.C. App. ___, 727 S.E.2d 338

(2012), review denied, 366 N.C. 404, 734 S.E.2d 864 (2012), and

cert. denied, writ denied, 366 N.C. 404, 734 S.E.2d 865 (2012)

and review dismissed, 366 N.C. 404, 734 S.E.2d 866 (2012).                       In

In     re   Cornblum   (Cornblum       I),     the    mortgagors,     Marshall    E.

Cornblum,      Madeline     H.    Cornblum,        Michael     Cornblum,     Carolyn

Cornblum, and Longbranch Properties, LLC, (appellants) executed

thirteen promissory notes secured by deeds of trust on various

pieces of real property purchased and developed with the loans.

When    the    mortgagors    defaulted        on     their    obligations,    United

Community Bank (UCB), the mortgagee, commenced twelve separate

foreclosure actions in Swain and Jackson County Superior Courts

under N.C. Gen. Stat. § 45–21.16 (2011).                  Id. at ___, 727 S.E.2d

at 339.       Appellants demanded arbitration of all claims pursuant

to the arbitration agreement contained in each deed of trust.

Id.     When UCB refused to arbitrate, appellants filed motions to

compel      arbitration.         Id.     Judge        James    U.   Downs    granted
                                            -9-
appellants’       motions        to    compel           arbitration.                 While      the

arbitration       proceedings          were        pending,         UCB        assigned         the

promissory      notes,        guaranties,         and    deeds   of       trust       to     Asset

Holding Company 5, LLC (“AHC” and collectively, “appellees”).

AHC    was   joined      in    the    arbitration           proceedings         as    a    party-

claimant,       but   UCB      remained       a     party     for     the       purposes        of

appellants’ counterclaims.              Id. at ___, 727 S.E.2d at 340.                          On

20 September 2010, the arbitrator ruled in favor of appellees on

all claims and issued an arbitration award accordingly.                                   Id.    On

8     October    2010,    appellees       filed         a    motion       to    confirm         the

arbitration award in Swain County Superior Court.                               The superior

court granted appellees’ motion to confirm the arbitration award

and denied appellants’ motion to vacate the award.                             Id.

       Appellants appealed to this Court on the basis that the

superior court lacked subject matter jurisdiction to confirm the

arbitration award.             This Court agreed with appellants, holding

that “submitting this case to arbitration and confirming the

arbitration award fell outside of the superior court’s subject

matter jurisdiction.”            Id. at ___, 727 S.E.2d at 342.                        On 7 May

2012, the Court of Appeals filed its judgment reversing the

superior court’s order confirming the arbitration award on the
                                     -10-
basis    that    the     superior     court     lacked       subject    matter

jurisdiction.

    In March 2013, nearly one year after this Court rendered

its decision in Cornblum I, appellants, claiming that appellees’

motion   to   confirm    the   arbitration     award   was    still    pending

despite this Court’s decision in Cornblum I, filed a motion for

order denying the appellees’ motion to confirm the arbitration

award.   Judge   Downs   heard   appellants’    motion   and     subsequently

entered an order denying it.          Appellants submitted a notice of

appeal to this Court on 3 June 2013.          Again, we vacate the trial

court’s order.

                                    II. Analysis

    Appellants (now “the Cornblums”) argue that the trial court

erred in denying their motion for an order denying appellees’

motion to confirm the arbitration award.           Given the decision in

Cornblum I, the Cornblums aver that the trial court was required

to grant their motion, and, by failing to do so, the trial court

acted inconsistently or at a variance with this Court’s mandate

in Cornblum I.    We disagree.

    Whether an action taken by a superior court complies with a

mandate is a question of law reviewed de novo.                   McKinney v.

McKinney, ____ N.C. App. ____, ____, 745 S.E.2d 356, 358 (2013).
                                        -11-
“‘Under a de novo review, the court considers the matter anew

and freely substitutes its own judgment’ for that of the lower

tribunal.” State v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d

290, 294 (2008) (quoting In re Greens of Pine Glen, Ltd. P’ship,

356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)).

       “Jurisdiction [is] . . . the power to hear and to determine

a legal controversy; to inquire into the facts, apply the law,

and to render and enforce a judgment[.]”               State v. Daniels, ____

N.C.   App.     ____,   ____,     741   S.E.2d      354,   358   (2012),   appeal

dismissed, disc. review denied, 366 N.C. 565, 738 S.E.2d 389

(2013) (quoting High v. Pearce, 220 N.C. 266, 17 S.E.2d 108, 112

(1941)).      “Properly speaking, there can be no jurisdiction of

the person where there is none of the subject matter, although

the converse might indeed, and often does, occur.”                  Id. at ___,

741 S.E.2d at 359.              “Where there is no jurisdiction of the

subject matter the whole proceeding is void ab initio and may be

treated    as    a    nullity    anywhere,     at    any   time,   and   for   any

purpose.”       Id.

       On appeal, the Cornblums acknowledge that in Cornblum I,

this Court dismissed appellants’ action after holding that the

trial court lacked subject matter jurisdiction to confirm the

arbitration award.         Nonetheless, the Cornblums now pray this
                                             -12-
Court    to    reverse        the    trial     court’s      order     and      remand     with

instructions to grant their motion for order denying appellees’

motion    to    confirm        the    arbitration          award.        In    making     such

request, the Cornblums completely disregard the basis for this

Court’s       reversal    in        Cornblum    I—the       lack    of     subject      matter

jurisdiction.            To    the     extent       that    the     trial      court      acted

inconsistently or at variance with this Court’s mandate, it did

so by ruling on the Cornblums’ motion, not, as the Cornblums

contend, by denying it.                See     D&W, Inc. v. City of Charlotte,

268 N.C. 720, 722, 152 S.E.2d 199, 202 (1966) (holding that a

mandate from an appellate court is binding upon the trial court

and     “must     be      strictly           followed        without          variation     or

departure[,]” [and] “[n]o judgment other than that directed or

permitted by the appellate court may be entered”).                                The trial

court was bound by this Court’s decision in Cornblum I, and,

absent    subject      matter        jurisdiction,          it    lacked      authority     to

either grant or deny the Cornblums’ motion.                              On appeal, this

Court must vacate the trial court’s order.                         See State v. Felmet,

302 N.C. 173, 176, 273 S.E.2d 708, 711 (1981) (concluding that

where the trial court issues an order without the requisite

subject matter jurisdiction, “the appropriate action on the part

of the appellate court is to arrest judgment or vacate any order
                                     -13-
entered   without    authority”);     see   also   In    re   Foreclosure   of

Young, ____ N.C. App. ____, ____, 744 S.E.2d 476, 479 (2013)

(vacating an order where the trial court exceeded jurisdictional

scope in foreclosure hearing by making findings and conclusions

regarding an equitable estoppel defense).

                                  III. Conclusion

           The trial court, acting in direct contravention with

this   Court’s    holding   in   Cornblum   I,   erred   in   ruling   on   the

Cornblums’ motion for order denying appellees’ motion to confirm

the arbitration award.           The trial court lacked subject matter

jurisdiction to hear the matter.            As such, we vacate the trial

court’s 6 May 2013 order.

       Vacated.

       Judges McGEE and HUNTER, Robert C. concur.

       Report per Rule 30(e).
