An unpublished opinion of the North Carolina Court of Appeals does not constitute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. 13-1453
                       NORTH CAROLINA COURT OF APPEALS

                               Filed: 15 July 2014


In the Matter of the Foreclosure
of The Deed of Trust from Edward
J. Harty and Margaret L. Harty,

                          Grantors,                 Union County
                                                    No. 12 SP 1003
Recorded in Book 1890, Page 170
Of the Union County Public
Registry, Trustee Services of
Carolina, LLC, Substitute Trustee.


      Appeal by respondents from order entered 12 June 2013 by

Judge W. David Lee in Union County Superior Court. Heard in the

Court of Appeals 5 May 2014.


      K&L Gates       LLP,    by   John        H.    Capitano,   for    petitioner-
      appellee.

      Clark, Giffin & McCollum, by Joe P. McCollum, Jr., for
      respondent-appellants.


      STEELMAN, Judge.

      The trial court’s finding that respondents had defaulted on

their   loan    was   supported      by       competent    evidence.    The    record

reflects    the   appointment      of     a    substitute    trustee,    the   trial

court’s order identifies the holder of the note, and respondents

failed to preserve for appellate review the court’s admission of
                                       -2-
evidence of a power of attorney held by New York Mellon. The

trial court did not err by allowing the foreclosure to proceed.

                   I. Factual and Procedural History

      On 13 August 2002 Edward J. Harty and his wife, Margaret L.

Harty, (respondents) executed a note and deed of trust in favor

of GreenPoint Mortgage in the amount of $177,800.00. This is the

second appeal to this Court arising from respondents’ failure to

make payments due under the note and deed of trust. See Harty v.

Underhill, 211 N.C. App. 546, 547, 710 S.E.2d 327, 329 (2011)

(Harty I). Respondents became delinquent on their loan payments

in   2003,   and   on   1   December    2003   respondents   and   GreenPoint

entered into a forbearance agreement which provided in relevant

part that:


             The above-referenced mortgage is in default
             due to the non-payment of the required
             monthly   mortgage   payments.    The total
             mortgage arrears, as calculated through
             December 11, 2003, are $8,617.16.

             GreenPoint is willing to extend to you the
             opportunity to repay the mortgage arrears in
             accordance with the terms and conditions set
             forth herein. It is expressly understood
             that   in    consideration    of   GreenPoint
             extending any forbearance for a period of
             time, it is necessary that you comply in all
             respects   with  the   following  terms   and
             conditions:

                                       . . .
                    -3-
4. Completion of Agreement. Assuming       all
payments required to be tendered herein    are
made on time and no other charges          are
incurred, subject to this agreement,       the
mortgage loan will be brought current      and
any foreclosure action commenced against   you
will be discontinued.

5. Schedule of Payments. GreenPoint will
provide you with a Schedule of payments[.] .
. . It is your obligation to tender timely
and full payment in accordance with the
terms and conditions of this Agreement. . .
.

6. Manner of Payment. ALL PAYMENTS REQUIRED
TO   BE   TENDERED  UNDER   THE   TERMS AND
CONDITIONS OF THIS AGREEMENT MUST BE IN THE
FORM OF CERTIFIED OR BANK CHECKS OR MONEY
ORDERS ONLY. PERSONAL CHECKS, CORPORATE
CHECKS AND CASH WILL NOT BE ACCEPTED.

7. Effect of Default under Agreement. IF YOU
DEFAULT UNDER THE TERMS OF THIS AGREEMENT,
THIS AGREEMENT WILL BE TERMINATED WITHOUT
NOTICE TO YOU AND ANY FORECLOSURE ACTION
THAT MAY HAVE BEEN COMMENCED AGAINST YOU
WILL RESUME. ANY PAYMENT MADE AFTER DEFAULT
WILL BE RETURNED TO YOU.

8. Due Dates for Monthly Payments. ALL
MONTHLY   PAYMENTS   REQUIRED    UNDER  THIS
AGREEMENT ARE DUE ON THE FIRST DAY OF EACH
MONTH. GREENPOINT RESERVES THE RIGHT TO
REJECT ANY PAYMENT AND DECLARE A DEFAULT
UNDER THIS AGREEMENT IF (1) PAYMENT IS NOT
RECEIVED BY GREENPOINT BY THE 16TH DAY OF
THE MONTH WHEN THE PAYMENT IS DUE OR (2) THE
PAYMENT IS LESS THAN THE FULL AMOUNT OF THE
PAYMENT REQUIRED UNDER THIS AGREEMENT.

                   . . .

10. Changes to Monthly Mortgage Payment.
Your monthly mortgage payment may change
during the term of this Agreement based on a
                                  -4-
          number of factors[.] . . . You hereby agree
          to make such adjustments in the payments
          when notified . . . or be deemed in default
          hereof, even if such notification of an
          adjustment occurs after the last payment . .
          . under this Agreement. You must contact
          GreenPoint prior to the last payment under
          this Agreement to inquire if any additional
          amounts   must   be   tendered   for  yearly
          adjustment of the mortgage payments.

                                 . . .

          12.   Effect  of   Forbearance  on   existing
          Foreclosure Action. THIS AGREEMENT DOES NOT
          DISCONTINUE    ANY    EXISTING    FORECLOSURE
          PROCEEDING THAT HAS BEEN COMMENCED WITH
          RESPECT TO THIS MORTGAGE. THIS AGREEMENT
          MERELY SUSPENDS SUCH PROCEEDING AND YOUR
          FAILURE TO COMPLY WITH THIS AGREEMENT WILL
          RESULT IN THE FORECLOSURE PROCEEDING BEING
          RESUMED FROM THE APPROPRIATE STAGE. . . .

          13. Waiver of Notice of Default. YOU HEREBY
          WAIVE ANY FURTHER NOTICE OF DEFAULT UNDER
          THE MORTGAGE OR THIS AGREEMENT THEREBY
          PERMITTING   GREENPOINT    TO  RESUME   ANY
          FORECLOSURE PROCEEDING UPON THE OCCURRENCE
          OF A DEFAULT WITHOUT NOTICE.

                                 . . .

          16. Time of the Essence. TIME IS OF THE
          ESSENCE WITH RESPECT TO ALL DATES SET FORTH
          HEREIN.

(all caps and underlining in original). “Plaintiffs1 executed the

Forbearance   Agreement,   and   Greenpoint   conditionally   suspended

foreclosure proceedings based upon plaintiffs’ regular monthly
1
  Because Harty I arose in the context of a lawsuit seeking to
enjoin foreclosure, rather than a foreclosure proceeding,
respondents and petitioner are referred to in Harty I as
plaintiffs and defendant respectively.
                                            -5-
payments and payments toward the arrears. . . . Approximately

four months after plaintiffs executed the Forbearance Agreement

with Greenpoint, plaintiffs’ deed of trust was transferred from

Greenpoint to Countrywide, subject to the Forbearance Agreement.

.    .    .   Plaintiffs    were    still    required    to   make   their   monthly

payments by the sixteenth day of each month to comply with the

time-is-of-the-essence clause.” Harty I, 211 N.C. App. at 547,

710 S.E.2d at 329.

          It is undisputed that respondents’ December 2004 payment

was not made until February 2005, placing respondents in default

under the terms of the Forbearance Agreement. In January 2005,

Countrywide         notified     respondents      that   the    mortgage     was   in

default. “Since the Forbearance Agreement permitted defendants

to       resume    foreclosure     proceedings    without      notice,    defendants

initiated          foreclosure     proceedings     by    reporting       plaintiffs’

default       to    the   trustees.   The     trustees    initiated      foreclosure

proceedings against plaintiffs in June 2005.” Harty I at 548,

710 S.E.2d at 329. “On 5 July 2007, the Clerk of Court of Union

County” entered an order “finding that the substitute trustee

could proceed to foreclosure under the terms of plaintiffs’ deed

of trust.” Id.

          Respondents appealed the Clerk’s order to Superior Court;

the record contains no indication that this appeal was pursued.
                                          -6-
Countrywide Home Loans became part of Bank of America pursuant

to a merger in July 2007. “[O]n 23 July 2007, plaintiffs filed a

complaint   against      defendants       in        Union   County     Superior     Court.

Plaintiffs alleged defendants’                 actions constituted unfair and

deceptive       practices      (‘UDP’)     and       tortious       interference      with

contract, and asserted equitable challenges to the foreclosure

under N.C. Gen. Stat. § 45-21.34.” “On 10 July 2009, defendants

filed a motion for summary judgment, alleging, inter alia, that

plaintiffs failed to forecast evidence necessary to establish

claims for UDP, tortious interference with contract, and N.C.

Gen.    Stat.     §   45-21.34.      .    .     .    [T]he     trial      court    granted

defendants’ motion for summary judgment and dismissed all claims

against defendants with prejudice on 26 October 2009.” Harty I

at 548, 710 S.E.2d at 330.

       Respondents      appealed     to       this    Court,    which      affirmed      the

trial   court’s       orders    in   Harty      I,     filed    3   May    2011.    On    25

November 2011, Bank of America                  sent respondents           a Notice of

Intent to Accelerate, informing                     them that their loan was in

serious default for failure to make payments, that a payment of

$88,787.23 was required to bring the loan current, and that if

the default were not cured by 25 December 2011, “the mortgage

payments will be accelerated with the full amount . . . due and

payable in full, and foreclosure proceedings will be initiated
                                             -7-
at that time.” Respondents had made no payments since February

2005, and they failed to make any payments after receiving the

Notice of Intent to Accelerate.

     On 30 November 2011 Bank of America assigned the note and

deed of trust to Bank of New York Mellon as trustee. Bank of

America held a power of attorney authorizing it to act on behalf

of Bank of New York Mellon. On 9 January 2012 Bank of America

sent respondents a notice of the                        updated payoff amount, and

provided respondents with information about means by which they

might    avoid     foreclosure,        including         loan      modification          or    the

involvement of an agency               approved by            the U.S. Department of

Housing and Urban Development. The record contains no evidence

that respondents           sought to avail themselves of any of these

mechanisms       to    avoid    foreclosure.            On    29     June    2012        Trustee

Services      of      Carolina,       LLC,    (petitioner)           was     appointed         as

substitute trustee. On 10 July 2012 the trustee filed a notice

of foreclosure hearing. After conducting a hearing, the Union

County    Clerk       of   Court      entered      an    order       on     25   March        2013

dismissing the petition for foreclosure. Petitioner appealed to

Superior Court and the trial court conducted a hearing on 20 May

2013.    On   12      June     2013    the    trial          judge    entered       an     order

authorizing petitioner to proceed with the foreclosure sale.

     Respondents appeal.
                                         -8-
                          II. Standard of Review

    “Under     N.C.G.S.      §    45-21.16(d),         four    elements    must     be

established    before   the      clerk    of   superior       court    authorizes    a

mortgagee or trustee to proceed with foreclosure by power of

sale:   ‘(i)   [a]   valid       debt    of    which    the    party    seeking     to

foreclose is the holder, (ii) default, (iii) right to foreclose

under the instrument, [and] (iv) notice to those entitled to

such[.]’ N.C.G.S. § 45-21.16(d) (2011).” In re Foreclosure of

Bass, 366 N.C. 464, 467, 738 S.E.2d 173, 175 (2013).

           The clerk’s findings are appealable to the
           superior court for a hearing de novo;
           however, the superior court’s authority is
           similarly limited to determining whether the
           criteria enumerated in N.C. Gen. Stat. § 45—
           21.16(d) have been satisfied. The superior
           court “has no equitable jurisdiction and
           cannot enjoin foreclosure upon any ground
           other than the ones stated in [N.C. Gen.
           Stat. § ] 45—21.16.”

In re Foreclosure of a [Deed of] Trust by Raynor, __ N.C. App.

__, __, 748 S.E.2d 579, 583 (2013) (citing Mosler v. Druid Hills

Land Co., 199 N.C. App. 293, 295—96, 681 S.E.2d 456, 458 (2009),

and quoting In re Foreclosure of a Deed of Trust, 55 N.C. App.

68, 71—72, 284 S.E.2d 553, 555 (1981)).

    “‘The applicable standard of review on appeal where, as

here, the trial court sits without a jury, is whether competent

evidence exists to support the trial court’s findings of fact

and whether the conclusions reached were proper in light of the
                                    -9-
findings. Competent evidence is evidence that a reasonable mind

might accept as adequate to support the finding.’ ‘Conclusions

of law drawn by the trial court from its findings of fact are

reviewable de novo on appeal.’” In re Manning, __ N.C. App. __,

__, 747 S.E.2d 286, 289 (2013) (quoting In re Foreclosure of

Adams, 204 N.C. App. 318, 320-21, 693 S.E.2d 705, 708 (2010)

(internal quotation omitted), and Bass, 366 N.C. at 467, 738

S.E.2d at 175 (internal citation omitted). In addition:

         A trial judge “passes upon the credibility
         of the witnesses and the weight to be given
         their    testimony   and    the    reasonable
         inferences to be drawn therefrom.” . . .
         “The trial court must itself determine what
         pertinent facts are actually established by
         the evidence before it, and it is not for an
         appellate court to determine de novo the
         weight and credibility to be given to
         evidence disclosed by the record on appeal.”

Phelps v. Phelps, 337 N.C. 344, 357, 446 S.E.2d 17, 25 (1994)

(quoting Knutton v. Cofield, 273 N.C. 355, 359, 160 S.E.2d 29,

33 (1968), and Coble v. Coble, 300 N.C. 708, 712-13, 268 S.E.2d

185, 189 (1980)).

                       III. Finding of Default

    Respondents     argue   first   that    the   trial   court   erred   in

finding that “the deed of trust was in default at the time of

the notice of foreclosure” on the grounds that this finding “is

unsupported by the evidence.” Respondents contend that there was

“insufficient   evidence    to   support”   the   trial   court’s   finding
                                  -10-
that they had failed to make payments in accordance with the

terms of the note. We disagree.

    Respondents   assert   that    in    its   January   2005   notice   of

default, petitioner failed to properly credit them for certain

payments made in the fall of 2004. However, respondents do not

challenge the undisputed evidence establishing that:

         1. On 13 August 2002 respondents obtained a
         loan from GreenPoint Mortgage Funding, Inc.,
         in the amount of $177,800.00. The terms of
         this loan required respondents to make
         monthly mortgage payments.

         2. Respondents defaulted on their loan
         payments, and on 1 December 2003 GreenPoint
         and respondents executed a forebearance
         agreement   stating    terms   under    which
         respondents might bring their loan current.

         3. The forbearance agreement stated that it
         was “expressly understood” that, in order to
         remedy    the   default,    respondents    were
         required to “comply in all respects” with
         the terms and conditions of the forbearance
         agreement. These terms included in relevant
         part requirements that:
         (a) payments were due no later than the 16th
         of each month;
         (b) time was of the essence regarding the
         payment dates;
         (c) payments would only be accepted in the
         form of certified or bank checks or money
         orders; cash and personal checks would not
         be accepted;
         (d)   petitioner   reserved   “the   right   to
         reject” any payments that were late or
         incomplete, and;
         (e) respondents’ failure to comply with the
         terms of the forbearance agreement would
         result in termination of the agreement
         without notice to respondents.
                                 -11-


           4. During the time period covered by the
           forbearance agreement respondents (a) made
           payments by personal check; (b) made at
           least one payment that was not for the full
           amount due; and (c) failed to make a payment
           for December 2004 until February 2005.

    This undisputed evidence establishes as a matter of law

that by January 2005 respondents were in default under the terms

of the forbearance agreement. Moreover, it is equally undisputed

that respondents have made no payments on their mortgage loan

since   February   2005,   despite   being   notified   repeatedly   that

their loan was in default. In addition, respondents admit that

they failed to make any payments in response to the November

2011 Notice of Intent to Accelerate or the January 2012 notice

from petitioner. Respondents do not dispute the validity of the

original loan, or the fact that at the time the trial court

entered its order allowing foreclosure to proceed, respondents

had made no payments towards their mortgage loan for more than

eight years. We hold that this evidence amply supported the

trial court’s finding on the issue of default.

    In urging us to reach a contrary conclusion, respondents

first contend that the trial court should have made findings

concerning the forbearance agreement. Appellants assert that the

“forbearance agreement provided that if the payments were made,

then the mortgage loan would be brought current.” Respondents
                                       -12-
fail    to   acknowledge      that   the   forbearance       agreement   expressly

provides that (1) time is of the essence with regard to dates

set out in the agreement; (2) payments are due on the first of

each month and no later than the 16th of the month; (3) default

will    result   in    the    termination     of    the   agreement,     and;     (4)

respondents      waive       any   further    notice      of    default.     It   is

undisputed that the payment due on 1 December 2004 was not made

until    February     2005,    resulting     in    default     under   the   express

terms of the agreement.

       Respondents also argue that the fact that petitioner did

not return the payment submitted in February 2005 “would seem to

indicate that the bank at that time did not consider them to be

in default,” an argument rejected by this Court in Harty I:

             According     to     defendants’      evidence,
             plaintiffs were put on notice at the time of
             the execution of the contract that failure
             to comply with the dates could lead to an
             automatic     initiation     of     foreclosure
             proceedings.   There   is  no    dispute   that
             plaintiffs’     payments    were     repeatedly
             received after the sixteenth day of the
             month in which they were due, at least one
             of the monthly payments was for less than
             the amount due, and the payment due in
             December 2004 was not made until 25 February
             2005.   Plaintiffs   argue    that   defendants
             waived the time-is-of-the-essence clause and
             any irregularities in plaintiffs’ payments
             by accepting payments after the sixteenth
             day of the month in which the payments were
             due. . . . However, the contract in the
             instant case provided a waiver of notice of
             default   and    provided   that    foreclosure
                                    -13-
           proceedings could resume upon the occurrence
           of default without any additional notice.

Harty I at 553, 710 S.E.2d at 332-33.

    Respondents also assert that a statement by petitioner’s

counsel   during   the   hearing,    indicating   that   petitioner   was

foreclosing on the principal amount of the loan and did not

consider respondents to be in default with regards to interest

payments, establishes that they were not in default at the time

petitioner   first   initiated      foreclosure   proceedings.   It    is

axiomatic that “[s]tatements by an attorney are not considered

evidence.” In re D.L., A. L., 166 N.C. App. 574, 582, 603 S.E.2d

376, 382 (2004) (citing State v. Haislip, 79 N.C. App. 656, 658,

339 S.E.2d 832, 834 (1986)).

    Respondents also place emphasis on their contention that

they had a dispute with petitioner in 2005 concerning the basis

and amount of fees imposed by petitioner in addition to the

payments made under the Forbearance Agreement. Respondents cite

no authority for the proposition that a 2005 dispute over late

fees or other charges excused them from making any payments for

the following 8 years. Moreover, regardless of the status of

respondents’ loan in early 2005, it is undisputed that they have

made no payments since then and failed to cure the default when

notified in November 2011. We hold that the trial court did not
                                        -14-
err   by   finding    that    respondents      defaulted    on    their   mortgage

obligation.

                   IV. Appointment of Substitute Trustee

      Respondents      argue    next    that    the   trial      court    erred   by

finding that the substitute trustee had been “duly designated

and empowered by the terms of the deed of trust to foreclose.”

Respondents contend that “[n]owhere in the record is there any

record     or    indication    that    the   holder   has     appointed     Trustee

Services of Carolina, LLC as substitute Trustee in this matter.”

We disagree.

      Respondents’ argument, that there is no evidence in the

record establishing the appointment of the substitute trustee,

differs from the argument that they presented to the trial court

during the hearing on this matter:

                [RESPONDENTS’ COUNSEL]: Judge, the first
                question I have is whether or not the
                Substitute Trustee in this matter has been
                duly appointed. And I have a certified copy
                of the appointment of Substitute Trustee. .
                . . And the question I raise is on the
                notarization line, Bank of New York Mellon
                through their attorney-in-fact, Bank of
                America. It has the name of Joshua Temple,
                Assistant Vice President apparently out of
                Dallas, Texas. But there is nothing to show
                – there’s no document that I have seen that
                has been - where we have been furnished a
                Statement of Attorney-in-Fact of where this
                is recorded in any way to make this a valid
                appointment. We don’t have an Attorney-in-
                Fact document. (emphasis added).
                              -15-
                             . . .

         THE COURT: Mr. McCollum, I’m not sure I’m
         following what your concern is.

         [RESPONDENTS’ COUNSEL]: My concern is that
         nothing is in the record to show at this
         point that there is an Attorney-in-Fact
         relationship; he signs as Attorney-in-Fact.
         But we don’t have either the Power of
         Attorney or anything - normally what I have
         observed is, it’s   recorded in somewhere in
         the book and page records. But we have no
         evidence   that  they   are   in  fact,  uh,
         Attorney-in-Fact or this person was --

                             . . .

         THE   COURT:  You’re   not  questioning   the
         authority of Joshua Temple to act on behalf
         of Bank of America. You’re questioning the –

         [RESPONDENTS’    COUNSEL]:   Well,    there’s
         nothing to show that he can.

         THE COURT: Okay. The underlying instrument
         that would authorize him to act?

         [RESPONDENTS’ COUNSEL]: That’s correct.

                             . . .

         THE COURT: I’m not sure – I think if I
         understand your argument, Mr. McCollum, the
         declaration of someone that they are an
         agent for someone else doesn’t make them the
         agent.

         [RESPONDENTS’ COUNSEL]: No, sir.

    The transcript makes it clear that, at the trial level,

respondents challenged only the documentation establishing that

the person purporting to act on behalf of the holder of the note
                                        -16-
had been properly appointed. Respondents did not dispute that

the substitute trustee had been appointed and, in fact, provided

the trial court with the document setting out the appointment of

a substitute trustee. “‘[Respondent] may not swap horses after

trial in order to obtain a thoroughbred upon appeal.’” State v.

Bell, 359 N.C. 1, 31, 603 S.E.2d 93, 114 (2004) (quoting State

v.   Benson,   323    N.C.   318,   322,      372   S.E.2d    517,   519   (1988)).

Respondents have not preserved this issue for review. Bell, 359

N.C. at 31, 603 S.E.2d at 114 (“Defendant did not object to the

sufficiency      of   the    evidence    to    support       the   pecuniary   gain

aggravating circumstance at trial and has not preserved this

issue for appellate review. N.C. R. App. P. 10(b)(1).”).

       Moreover, contrary to respondents’ contention, the record

does   contain    the   recorded    appointment        of     substitute    trustee

(Book 5766 at page 400 of the Union County Public Registry),

which was submitted to this Court under Rule 9(b)(5) of the

Rules of Appellate Procedure. This argument lacks merit.

                  V. Finding Concerning Holder of Note

       Respondents argue next that the trial court “did not find

as a fact that the Bank of New York Mellon is the holder of the

note and deed of trust.” Respondents do not dispute that the

bank is the holder, but argue only that the court failed to make

a finding to this effect. We do not agree.
                                  -17-
    In its order, the trial court found that respondents had

“executed to the order of GreenPoint Mortgage Funding, Inc. that

certain promissory note dated August 13, 2002 in the original

principal   amount   of   $177,800.00,   evidencing   a   valid   debt   of

which the party seeking to foreclose is the current holder.”

(emphasis added). It is undisputed that “the party seeking to

foreclose” is The Bank of New York Mellon. We hold that the

trial court adequately identified the holder of the note:

            Respondents’ final argument is that the
            order of the trial court “does not comply
            with the requirements of the foreclosure
            statute.” Respondents argue that there was
            not a proper finding that Robert Carpenter
            and Edith Carpenter were holders of a valid
            debt. In his order, the judge referred to
            Robert Carpenter and Edith Carpenter as
            holders when he stated that “the holders of
            the Note” presented evidence of ownership. .
            . . In any event, the intent of the trial
            court is plain, and we will not reverse the
            trial court for harmless error.

In re Cooke, 37 N.C. App. 575, 580, 246 S.E.2d 801, 805 (1978).

    This argument lacks merit.

              VI. Conclusion of Law Regarding Default

    Respondents argue next that the trial court erred in its

conclusion that there was a default under the promissory note.

No new argument is advanced. Instead, respondents simply adopt

their argument regarding the court’s finding of a default. For

the reasons discussed in regards to that argument, in Section
                                       -18-
III   of   this   opinion,   we    hold   that      this   argument     is   without

merit.

           VII. Admission of Evidence of Power of Attorney

      Respondents    argue     next    that    the    trial     court   “erred      in

considering over objection the power of attorney of New York

Mellon”    that   “purported      to   allow   [Bank       of   America]     to   sign

papers     concerning   foreclosures          and    related      matters.”       This

argument lacks merit.

      The appointment of Trustee Services of Carolina, LLC, as

substitute trustee was executed by The Bank of New York Mellon

through its attorney in fact, the Bank of America. At trial,

respondents challenged the documentation establishing that Bank

of America had been designated as attorney in fact for Bank of

New York Mellon. The trial court agreed to allow petitioner to

submit the pertinent document after the hearing, a procedure to

which respondents did not object.

      On appeal, respondents do not challenge the authority of

Bank of America to appoint a substitute trustee on behalf of

Bank of New York Mellon. Instead, their argument is narrowly

focused on the trial court’s “consideration” of the document

setting out the attorney in fact relationship between the two

banks, which we interpret this as a challenge to the admission

of the power of attorney document. Respondents contend that this
                                         -19-
document was “over objection,” an assertion based on an email in

which respondents’ counsel wrote that he “would like to express

[his] objection to the document[.]” We conclude that respondents

have not preserved this issue for our review.

    Rule 10(a)(1) or our Rules of Appellate Procedure provides

that “to preserve an issue for appellate review, a party must

have presented to the trial court a timely request, objection,

or motion, stating the specific grounds for the ruling the party

desired    the    court    to    make   if   the      specific   grounds     were   not

apparent    from     the     context.      It    is    also   necessary      for    the

complaining party to obtain a ruling upon the party's request,

objection, or motion.”

    Assuming, arguendo, that counsel’s statement in an email

constituted      a   valid      objection,      respondents      did   not   obtain   a

ruling on the objection. Moreover, on appeal respondents fail to

advance any legal basis for the objection or any argument as to

why the document was not admissible. This argument is dismissed.

             VIII. Order Allowing Foreclosure to Proceed

    Finally, respondents argue that the trial court “erred in

entering    the      order      allowing     the      foreclosure      to    proceed.”

Respondents rely upon their other arguments, and assert that

they “have shown through testimony and law that there was not
                                    -20-
competent evidence to support the judgment and order in this

case.” For the reasons discussed above, we disagree.

    Respondents   also    suggest    that   the   trial   court   erred   by

failing to determine the amount owed, and argue that respondents

“cannot make payment if it cannot be determined how much that

payment should be.” However, “determination of the amount owed

on a debt is beyond the scope of the hearing under G.S. 45-

21.16[.]” In re Foreclosure of Burgess, 47 N.C. App. 599, 604,

267 S.E.2d 915, 918 (1980).

    For the reasons discussed above, we conclude that the trial

court’s order should be

    AFFIRMED.

    Chief Judge MARTIN and Judge DILLON concur.

    Report per Rule 30(e).
