An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1254
                       NORTH CAROLINA COURT OF APPEALS
                             Filed:     19 August 2014
ESTATE OF ILA T. SCURLOCK,
     Plaintiff

                                                Durham County
      v.
                                                No. 12 CVS 5773

WELLS FARGO HOME MORTGAGE, INC. and
SHAPIRO & INGLE, LLP,
     Defendants


      Appeal by plaintiff from order entered 26 April 2013 by

Judge Orlando F. Hudson in Durham County Superior Court.                      Heard

in the Court of Appeals 19 March 2014.


      Russell, Goetcheus, & Associates,               by   Kathie    Russell    and
      Jennifer Probasco, for Plaintiff.

      Womble Carlyle Sandridge & Rice, LLP, by Kenneth                            B.
      Oettinger and Amanda G. Ray, for Wells Fargo Bank, N.A.

      Shapiro & Ingle, LLP, by Jason K. Purser, for Sharpiro &
      Ingle (no brief).


      ERVIN, Judge.


      Plaintiff Estate of Ila T. Scurlock appeals from an order

dismissing its complaint, in which the estate asserted numerous

claims arising from the alleged failure of Defendant Wells Fargo

Home Mortgage, Inc., to honor a loan modification alleged to
                                          -2-
have been previously in effect and Defendant’s alleged refusal

to   respond      to    Plaintiff’s      request    for    an      additional        loan

modification.           On    appeal,   Plaintiff   contends        that   the       trial

court erred by dismissing its complaint on the grounds that its

complaint properly asserted a request for equitable and other

relief    based        upon    “negligence,      negligent        misrepresentation,

breach of contract, violations of N.C. Gen. Stat. § 25-3-204 and

§ 45-21.16(d)(i), breach of [the] implied covenant of good faith

and fair dealing and violations of the North Carolina Secure and

Fair Enforcement Mortgage Licensing Act, as well as violations

of N.C. Gen. Stat. § 75 et seq.”                After careful consideration of

Plaintiff’s challenges to the trial court’s order in light of

the record and the applicable law, we conclude that the trial

court’s order should be affirmed.

                               I. Factual Background

                                A. Substantive Facts

     In 1998, Ila T. Scurlock executed a promissory note and

deed of trust in favor of Accredited Home Lenders, Inc., for the

purpose   of   securing        a   $61,530   loan   used     to    purchase      a    home

situated at 2406 Shirley Street in Durham.                   Ms. Scurlock’s note

was subsequently assigned to TMS Mortgage, Inc., and then to

Home Eq Loan Servicing.
                                       -3-
      Ms. Scurlock died on 30 March 2005.            She was survived by

two daughters, Deborah and Mabel Scurlock.              In her will, Ms.

Scurlock named Nikki S. Scurlock, Deborah Scurlock’s daughter

and Ms. Scurlock’s granddaughter, as her executor with the power

to, among other things, “pay [her] legally enforceable debts . .

. except for debt . . . secured by real . . . property which

[was] to be assumed by the recipient of such property.”                   Ms.

Scurlock devised the residue of her estate, which included “all

of   [her]   property   and   assets    not   specifically   bequeathed   or

otherwise required for the payment of any debts owed” and “all

[her] personal belongings,” to Deborah Scurlock1.

      Nikki Scurlock filed an application for the issuance of

letters testamentary and the admission of Ms. Scurlock’s will to

probate on 6 April 2005.          According to this application, Ms.

Scurlock owned real property having a value of $77,677 as of the

date of her death.        On the same date, the Clerk of Superior

Court issued letters testamentary to Nikki Scurlock and admitted

Ms. Scurlock’s will to probate.

      After Ms. Scurlock’s death, Home Eq allowed Plaintiff to

make payments on the obligation evidenced by the promissory note


      1
      As a result of the fact that Ms. Scurlock made no specific
bequests in her will, all of her property, including the real
property at issue in this case, passed to Deborah Scurlock under
the residuary clause quoted in the text.
                                               -4-
associated with the deed of trust that was applicable to the

Shirley Street property.                  In May 2010, Plaintiff               reached an

agreement     with    Home    Eq     to    add        approximately        $5,000    to     the

principal balance of the loan and reduce the required monthly

payments by eliminating tax and insurance escrow payments.                                 As a

result, Plaintiff made the payments required under the note and

deed of trust in the reduced amount specified in this agreement.

     In     August    of     2010,    Home           Eq    transferred      the     note     to

Defendant,2    which       “reneged”       on        the   prior    agreements       between

Plaintiff and Home Eq.          Instead, Defendant offered to enter into

a “temporary forbearance agreement” with Plaintiff that did not

reflect the reduced monthly payments established in the May 2010

agreement.       In    addition,           Defendant         failed    to     respond        to

Plaintiff’s written requests for a loan modification.

     At some point that is not clearly revealed in the record,

Defendant initiated foreclosure proceedings applicable to the

Shirley   Street     property.            On    26    October      2011,    the     Clerk    of

Superior Court of Durham County entered an order authorizing the

sale of the Shirley Street property.                        In its order, the Clerk

found as fact that (1) notice had been properly served upon all

parties entitled to receive it; (2) Defendant was the holder of

the note, which represented a valid debt; (3) the debtor was in
     2
      As the result of a subsequent merger, Wells Fargo Bank,
N.A., succeeded to the rights of Wells Fargo Home Mortgage, Inc.
                                                -5-
default; and (4) the deed of trust contained a power of sale.

No appeal was taken from the order authorizing the foreclosure

sale.

       On     3    January       2012,    Deborah       Scurlock      filed   a   bankruptcy

petition          in   which      she    listed       the   note   associated      with   the

Shirley Street property as one of her debts and acknowledged

that she was in default under this note.                           A motion filed by the

bankruptcy trustee seeking the dismissal of Deborah Scurlock’s

bankruptcy petition on 14 August 2012 was granted on 19 October

2012.         Prior         to   the    entry    of    this    dismissal      order,   Nikki

Scurlock successfully petitioned to have Ms. Scurlock’s estate

reopened for the purpose of “resolving the mortgage and deed,”

with       letters     testamentary        reflective         of   that   decision     having

been       issued      on    8   November       2012.3        After   Deborah     Scurlock’s

bankruptcy          petition       was    dismissed,        the    foreclosure     sale   was

rescheduled for 26 November 2012.

                                   B. Procedural History




       3
      A final accounting of the estate, which reflected a zero
balance, was filed on the same date.      The record does not
clearly reflect the date upon which Ms. Scurlock’s estate was
originally closed or the nature of the proceedings that took
place on that occasion.
                                            -6-
      On 26 November 2012, Plaintiff filed a complaint against

Defendant and Defendant Shapiro & Ingle, LLP,4 asserting claims

sounding in negligence, negligent misrepresentation, breach of

contract, violations of N.C. Gen. Stat. §§ 25-3-204 and 45-

21.16(d)(i), breach of an implied covenant of good faith and

fair dealing, violations of the North Carolina Secure and Fair

Enforcement Mortgage Licensing Act, and violations of N.C. Gen.

Stat. § 75 et seq.; alleging that Defendant was precluded from

foreclosing upon the Shirley Street property in light of its

decision    to     participate       in    the    Home   Affordable       Modification

Program;     and      seeking       compensatory         and   punitive       damages,

attorneys’ fees, and costs.               On that same day, Plaintiff filed a

motion     seeking        to    obtain     the    issuance     of    an    injunction

precluding the conducting of the scheduled foreclosure sale.5

      On 22 January 2013,             Shapiro & Ingle          filed a responsive

pleading in which it denied the material allegations contained

in   the   complaint,          asserted   various    affirmative      defenses,     and

sought     dismissal       of     Plaintiff’s      complaint    on    a    number   of

grounds.         On   8    February       2013,   Defendant     filed     a   separate
      4
       Although Plaintiff asserted that Defendant Shapiro & Ingle
served as substitute trustee under the deed of trust applicable
to the Shirley Street property, Defendant Shapiro & Ingle denied
that it was serving as substitute trustee at the time that the
foreclosure proceeding was commenced.
     5
       On 18 February 2013, Defendant consented to the entry of a
temporary restraining order precluding the conducting of the
foreclosure sale.
                                          -7-
dismissal motion in which it asserted, among other things, that

Plaintiff lacked standing to maintain the present action, that

Plaintiff had failed to join a necessary party, that Plaintiff’s

claims    were     barred    by     res      judicata       considerations,        that

Defendant did not owe any duty to Plaintiff to modify the loan,

and that no private right of action was available under the Home

Affordable Modification Program.                After holding a hearing on 11

April 2013 for the purpose of considering all pending motions,

the   trial      court    entered      an       order   dismissing       Plaintiff’s

complaint on 26 April 2013 for failure to state a claim upon

which relief could be granted.                  Plaintiff noted an appeal to

this Court from the trial court’s order.

                             II. Legal Analysis

      Although Plaintiff has advanced a number of challenges to

the trial court’s order in its brief, we need not address those

arguments     in   detail    given     our      determination     that    Plaintiff

lacked    standing   to     initiate      the     present    proceeding.       As    a

result,    we    conclude    that    the     trial      court   did   not    err    by

dismissing Plaintiff’s complaint.

      In order to establish that it has standing to bring a legal

action, a party must show:

            (1) ‘injury in fact’—an invasion of a
            legally protected interest that is (a)
            concrete and particularized and (b) actual
            or    imminent,    not    conjectural   or
                                        -8-
            hypothetical; (2) the injury is fairly
            traceable to the challenged action of the
            defendant; and (3) it is likely, as opposed
            to merely speculative, that the injury will
            be redressed by a favorable decision.

Neuse River Found. v. Smithfield Foods, Inc., 155 N.C. App. 110,

114, 574 S.E.2d 48, 52 (2002) (quoting Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 2136, 119 L.

Ed. 2d 351, 364 (1992)), disc. review denied, 356 N.C. 675, 577

S.E.2d 628 (2003).        “Standing most often turns on whether the

party has alleged ‘injury in fact’ in light of the applicable

statutes or caselaw.”           Id.     As a result of the fact that the

existence of standing is necessary in order for the judicial

system to have jurisdiction over a particular action, Munger v.

State, 202 N.C. App. 404, 409, 689 S.E.2d 230, 235 (2010), disc.

review improvidently granted, 365 N.C. 3, 705 S.E.2d 734 (2011),

the fact that this Court is required to determine the extent to

which    subject   matter   jurisdiction        exists   regardless    of    the

extent to which that issue was discussed in the court below or

addressed in the parties’ briefs, Whittaker v. Furniture Factory

Outlet   Shops,    145   N.C.    App.    169,   172,   550   S.E.2d   822,   824

(2001), and the fact that “matters outside the pleadings . . .

may be considered and weighed in determining the existence of

jurisdiction over the subject matter,” Tart v. Walker, 38 N.C.

App. 500, 502, 248 S.E.2d 736, 737 (1987) (citation omitted), we
                                     -9-
are   required    to    evaluate   the   extent   to   which   Plaintiff   has

standing to maintain this action regardless of the extent to

which the parties discussed this issue in their brief based upon

an examination of all relevant information.                In the course of

making this determination, “we view the allegations as true and

the supporting record in the light most favorable to the non-

moving party.”         Mangum v. Raleigh Bd. of Adjustment, 362 N.C.

640, 644, 660 S.E.2d 279, 283 (2008).                  After conducting the

required analysis, we conclude, given that all of Plaintiff’s

claims are predicated on the assumption that it had a legally

protected interest in the property and would suffer a legally

recognized injury in the event that the foreclosure proceeded6

and given the complete absence of any record or legal support

for either of those propositions, Plaintiff lacked standing to

maintain the present action.

      Pursuant to N.C. Gen. Stat. § 28A-15-2(b), “the title to

real property of a decedent devised under a valid probated will

becomes vested in the devisees and shall relate back to the

decedent’s death.”        As a result of the fact that Nikki Scurlock

sought    and    obtained    the   entry   of     an   order   admitting   Ms.
      6
      For example, the first claim alleged in Plaintiff’s
complaint asserts that Defendant “owed Plaintiff a duty of due
care while servicing Plaintiff’s loan.”     Similarly, Plaintiff
alleged in its complaint that Defendant’s actions caused “damage
to Plaintiffs by, among other things, causing Plaintiffs to lose
title to her home and her interest in its equity.”
                                           -10-
Scurlock’s will to probate on 6 April 2005, title to the Shirley

Street property vested in Deborah Scurlock on that date, with

her title relating back to the date of Ms. Scurlock’s death.

Although the Shirley Street property was potentially “available

for    the    discharge      of   debts     and     other       claims    against      [Ms.

Scurlock’s] estate,” N.C. Gen. Stat. § 28A-15-1(a), Plaintiff

never sought to have the property returned to the estate for

that purpose.          As a result, the real property that was the

subject of this action was never owned by or otherwise contained

in Ms. Scurlock’s estate.

       In     addition,      we     note     that,      although         Plaintiff      was

statutorily authorized to pay any debts owed by Ms. Scurlock at

the    time    of    her    death,    N.C.       Gen.     Stat.    §     28A-13-3(a)(29)

(authorizing the personal representative to “[p]ay or satisfy

the debts and claims against the decedent’s estate” in the order

and    manner    provided      by    law),       the    personal       representative’s

authority       in   this    respect       is     specifically         subject    to   any

“express limitations imposed in a will of the decedent.”                               N.C.

Gen.   Stat.     §   28A-13-3(a).           As    we    have      already    noted,     Ms.

Scurlock’s      will   authorized      the       estate    to     “pay    [her]   legally

enforceable debts . . . except for . . . debt secured by real

and/or personal property[,] which [was] to be assumed by the
                                             -11-
recipient         of     such   property.”7         Thus,     Ms.       Scurlock’s     will

specifically            provided     that    her    estate    was       not   to     assume

responsibility for any obligation arising from or relating to

her ownership of real property, with any such obligations to be

assumed instead by the individual to whom the property had been

devised.

       In light of the fact that the relevant tract of property

was never owned by Ms. Scurlock’s estate and the fact that Ms.

Scurlock’s         will    required    the    recipient      of    any    real     property

transferred under that instrument to assume responsibility for

any related debts, we are unable to understand how Plaintiff was

in any way injured by Defendant’s failure to honor agreements

that it had allegedly entered into with Defendant’s predecessors

or     to       respond    to      Plaintiff’s      request       for    an   additional

modification of the note and deed of trust applicable to the

Shirley Street property.                 Based upon the same logic, we are

unable to see how Plaintiff had the authority to negotiate any

sort       of    loan     modification       relating   to     the       Shirley     Street

property with Defendant or its predecessors that would be in any

way binding upon Defendant.                  As a result, given the absence of
       7
      Although the parties appear to have assumed at the hearing
held before the trial court that title to the property was
transferred to Deborah Scurlock while the necessity to pay the
obligation reflected in the note and deed of trust remained with
Plaintiff, that assumption is inconsistent with the provisions
of Ms. Scurlock’s will.
                                   -12-
any showing that the estate had any authority to act on Deborah

Scurlock’s behalf and the absence of any indication that the

estate, as compared to Deborah Scurlock, suffered any injury as

a   result    of   Defendant’s   conduct,   Plaintiff   is   simply   not

entitled to maintain any claim against Defendant stemming from

Defendant’s alleged refusal to honor prior agreements between

Plaintiff and Defendant’s predecessors and Defendant’s alleged

refusal to respond to Plaintiff’s request for an additional loan

modification.      As a result, since the record clearly establishes

that Plaintiff lacked standing to assert the claims set out in

the complaint against Defendant, we necessarily conclude that

the trial court did not err by dismissing Plaintiff’s complaint.

                            III. Conclusion

     Thus, for the reasons set forth above, we conclude that

Plaintiff lacked standing to initiate and maintain the present

action.      As a result, the trial court’s order should be, and

hereby is, affirmed.

     AFFIRMED.

     Judges GEER and STEPHENS concur.

     Report per Rule 30(e).
