An unpublished opinion of the North Carolina Court of Appeals does not constitute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.


               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                      No. COA15-20

                                  Filed: 4 August 2015

Mecklenburg County, No. 13 CVS 20158

DAVID W. THOMPSON, Plaintiff,

              v.

BANK OF AMERICA, N.A.; PRLRAP, INC.; NATIONWIDE TRUSTEE SERVICES,
INC.; BAC HOME LOANS SERVICING, LP; SAXON MORTGAGE SERVICES,
INC.; WENDY B. COLE and MATRESSA R. MORRIS, Defendants.


       Appeal by plaintiff from orders entered 12 June and 13 June 2014 by Judge

Richard D. Boner in Mecklenburg County Superior Court. Heard in the Court of

Appeals 21 May 2015.


       David W. Thompson, pro se, for plaintiff.

       Bradley Arant Boult Cummings LLP, by Brian M. Rowlson, for defendants
       Bank of America, N.A. and BAC Home Loans Servicing, LP.

       Nelson Mullins Riley & Scarborough LLP, by Julia B. Hartley and Ramona
       Farzan, for defendant Saxon Mortgage Services, Inc.


       INMAN, Judge.


       Plaintiff David Thompson appeals from the trial court’s orders dismissing with

prejudice plaintiff’s amended complaint. Defendants have filed a motion to dismiss

the appeal because: (1) the appeal is moot; (2) lack of jurisdiction; and (3) plaintiff’s

appeal is an impermissible collateral attack of the clerk’s foreclosure order.
                            THOMPSON V. BANK OF AMERICA

                                    Opinion of the Court



       After careful review, we grant defendants’ motion to dismiss in part and affirm

the trial court’s orders in part.

                       Factual and Procedural Background

       Relevant factual and procedural facts include the following: On 9 June 2010,

in 10 SP 2738, a foreclosure hearing was held before the Mecklenburg County

Assistant Clerk of Superior Court (“the Clerk”) regarding the subject property.

Plaintiff did not attend the hearing. The Clerk entered an order of foreclosure after

making all the necessary findings under N.C. Gen. Stat. § 45-21.16(d). Plaintiff did

not appeal the Clerk’s order of foreclosure.

       Eventually, after various postponements and following a notice of sale served

by mail on 26 May 2011 and attached as an exhibit to plaintiff’s complaint, the

substitute trustee sold the property at a foreclosure sale on 14 July 2011. At the

auction, the highest bidder was defendant Bank of America, N.A. (“BOA”). A copy of

the foreclosure sale report was filed in Superior Court on 14 July 2011. No upset bids

were filed, and plaintiff did not file a motion to enjoin the sale pursuant to N.C. Gen.

Stat. § 45-21.34.    On 9 August 2011, BOA filed a Final Report and Account of

Foreclosure Sale. No other pleadings were filed in 10 SP 2738.

       Beginning in July 2011, plaintiff alleges that he began receiving conflicting

information as to who held his home loan account. He claimed that he was informed

that defendant Saxon Mortgage Services (“Saxon”) had acquired the servicing of his



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                            THOMPSON V. BANK OF AMERICA

                                   Opinion of the Court



home loan from defendant BAC Home Loans Servicing (“BAC”) on 7 July 2011, just

a few days after BAC told him that his account had been transferred to its parent-

company, BOA. Until 11 July 2011, plaintiff contends that he received various form

letters and account statements from both BAC and Saxon but that none of the

correspondence indicated that the property was the subject of a foreclosure

proceeding.

        Although plaintiff claims that he did not receive any notice of the foreclosure

hearing before the Clerk, he admits that he received notice that his property was the

subject of a foreclosure proceeding as early as 5 July 2010 when he received a letter

from    defendant    Nationwide    Trustee     Services   (“Nationwide”)   (collectively,

Nationwide, Saxon, BAC, and BOA are referred to as “defendants”). In his complaint,

he also admits that he received notice of all the various postponements of the

foreclosure sale except for the notice of postponement dated 26 May 2011, which

indicated that the foreclosure sale had been set for 14 July, the date in which the

property was eventually sold at public auction. Notwithstanding his denial, plaintiff

attached a copy of this notice to his complaint. On or about 5 August 2011, plaintiff

claims that he learned that the property had been sold at auction. Plaintiff made

numerous phone calls to BOA, Nationwide, and Saxon after he was notified of the

sale.




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                           THOMPSON V. BANK OF AMERICA

                                  Opinion of the Court



      Plaintiff alleges that on 27 February 2012, he filed a civil case in Superior

Court, but that he took a voluntary dismissal without prejudice on 14 November 2012.

Neither of these documents is included in the record on appeal. Plaintiff also alleges

that on 14 November 2013, he recommenced his action, acting pro se. Again, a copy

of this 2013 complaint is not included in the record. The only evidence of record that

plaintiff recommenced a civil action is a copy of his amended complaint filed 25 March

2014 in Superior Court.

      In his amended complaint, plaintiff asserts that this is an action to “quit [sic]

title” and an action pursuant to section 45-21.34 to enjoin the foreclosure sale in 10

SP 2738. The amended complaint further seeks: (1) “to dismiss with prejudice the

Special Proceeding”; (2) “damages against the Defendants for the wrongs those

Defendants committed in connection with the Special Proceeding”; (3) compensatory,

punitive, and treble damages based on defendants’ “unfair and deceptive trade

practices”; and (4) punitive damages based on defendants “aggravated and

outrageous conduct.”

      The amended complaint does not include factual allegations supporting

plaintiff’s “claims for relief” but instead, primarily challenges the Clerk’s findings.

Specially, plaintiff claims that he did not receive notice of the hearing, the Clerk

misrepresented himself, he did not receive notice of the 14 July 2011 foreclosure sale,

and that defendants are not the real parties in interest to the foreclosure. The only



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                           THOMPSON V. BANK OF AMERICA

                                  Opinion of the Court



detailed factual allegations regarding the fraud and unfair and deceptive trade

practice (“UDTP”) “claims” are that: (1) the signatures on various pieces of

correspondence from defendants do not match; and (2) the “false and fraudulent”

foreclosure constitutes slander. However, plaintiff reiterates that this action is an

“Action in Equity separate and distinct from the issues which could have been raised

[at] the foreclosure hearing.”

      On 12 June 2014, Judge Richard D. Boner granted defendants’ motion to

dismiss plaintiff’s amended complaint based on Rules 12(b)(1) and (6). Plaintiff

appeals.

               Defendants’ Motion to Dismiss Plaintiff’s Appeal

      Defendants assert that plaintiff’s appeal should be dismissed because the

appeal is moot since the subject property was sold in July 2011, this Court does not

have jurisdiction to hear plaintiff’s appeal because he failed to appeal the Clerk’s

foreclosure order to Superior Court, and the underlying action was properly

dismissed by the trial court because it alleges facts and seeks relief properly alleged

only in a direct appeal from the Clerk’s foreclosure order. Prior to addressing whether

dismissal of the appeal is appropriate, we must determine what claims plaintiff

actually alleged in his complaint.     The claims asserted in plaintiff’s amended

complaint fall into three categories: (1) challenges to the Clerk’s findings in the




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                            THOMPSON V. BANK OF AMERICA

                                    Opinion of the Court



foreclosure order; (2) equitable claims brought pursuant to N.C. Gen. Stat. § 45-21.34

to enjoin the sale; and (3) various other claims for damages.

   I. Claims Challenging the Clerk’s Order of Foreclosure

      In a foreclosure under a power of sale, the Clerk may authorize a sale if he or

she finds the existence of six factors:

             (i) valid debt of which the party seeking to foreclose is the
             holder, (ii) default, (iii) right to foreclose under the
             instrument, (iv) notice to those entitled to such under
             subsection (b), (v) that the underlying mortgage debt is not
             a home loan as defined in G.S. 45-101(1b), or if the loan is
             a home loan under G.S. 45-101(1b), that the pre-foreclosure
             notice under G.S. 45-102 was provided in all material
             respects, and that the periods of time established by Article
             11 of this Chapter have elapsed, and (vi) that the sale is
             not barred by G.S. 45-21.12A.

N.C. Gen. Stat. § 45-21.16(d). A foreclosure proceeding is limited to those six factors,

so equitable defenses and arguments are irrelevant in such action. N.C. Gen. Stat.

§ 45-21.16(d1) provides that a party may appeal the Clerk’s order of foreclosure for a

de novo trial within 10 days after the order is entered. However, if the party fails to

perfect an appeal from the Clerk’s order, “the [C]lerk's order is binding and plaintiffs

are estopped from arguing those same issues in [another] case.” Phil Mech. Const.

Co. v. Haywood, 72 N.C. App. 318, 322, 325 S.E.2d 1, 3 (1985). Any subsequent action

attempting to challenge a foreclosure based upon those issues should be dismissed

based on the doctrine of res judicata. Id.




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                            THOMPSON V. BANK OF AMERICA

                                   Opinion of the Court



        A great deal of plaintiff’s amended complaint challenges the sufficiency of the

evidence showing that defendants were the holder of the debt and that plaintiff

received proper notice of the hearing. However, plaintiff failed to appeal the Clerk’s

order which found both that BOA was the holder of the note and that plaintiff

received proper notice of the hearing. Consequently, as in Phil Mechanic, plaintiff’s

amended complaint is an attempt to collaterally attack the Clerk’s order.

Accordingly, we allow defendants’ motion to dismiss with regard to plaintiff’s claims

challenging the section 14-21.16(d) findings made by the Clerk.

   II. Plaintiff’s N.C. Gen. Stat. § 45-21.34 Claims in Equity

        In his amended complaint, plaintiff notes that “this is an Action in Equity” and

requests that the trial court grant various types of equitable relief, including a

preliminary injunction and a temporary restraining order. We agree with defendants’

contention that this appeal is moot because the subject property was sold in July

2011.    While the property owner may file a separate action to enjoin a foreclosure

sale upon, among other reasons, any equitable ground which the court may deem

sufficient pursuant to N.C. Gen. Stat. § 45-21.34, see In re Foreclosure by Foster, __

N.C. App. __, __, 768 S.E.2d 870, 873 (2015), the action and prayer for injunctive relief

must be filed, heard, and decided before the rights of the parties to the foreclosure

sale become fixed. See Goad v. Chase Home Fin., LLC, 208 N.C. App. 259, 262, 704

S.E.2d 1, 3 (2010). Generally, the parties’ rights become fixed on the date by which



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                            THOMPSON V. BANK OF AMERICA

                                   Opinion of the Court



an upset bid must be filed, i.e., within 10 days after the report of sale or last upset

bid was filed. Id. at 263, 704 S.E.2d at 4. Any attempt to enjoin the sale after this

time is “subject to dismissal[.]” Id. at 264, 704 S.E.2d at 5.

      Here, even if we were to assume that plaintiff’s initial complaint, which is not

included in the record on appeal, attempted to enjoin the sale, it was not filed until

27 February 2012, seven months after the rights of the parties to the foreclosure sale

became fixed.    The parties’ rights were fixed on 24 July 2011, ten days after the

report of sale was filed, no upset bid having been filed. Therefore, we also allow

defendants’ motion to dismiss as to any claims for equitable relief in plaintiff’s

amended complaint as they are moot. See id.

   III.         Plaintiff’s Remaining Claims

      Plaintiff asserted other causes of action that would survive defendants’ motion

to dismiss because they do not fall within either the scope of N.C. Gen. Stat. § 45-

21.16(d1)—challenges to the Clerk’s findings—or N.C. Gen. Stat. § 45-21.3—

equitable claims. We agree that some of plaintiff’s causes of action fall outside the

scope of the relevant statutes. Accordingly, we address those claims below.

                                Standard of Review

      “This Court reviews the trial court’s denial of a motion to dismiss de novo.”

State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). “The standard of

review of an order granting a 12(b)(6) motion is whether the complaint states a claim



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                           THOMPSON V. BANK OF AMERICA

                                  Opinion of the Court



for which relief can be granted under some legal theory when the complaint is

liberally construed and all the allegations included therein are taken as true.” Burgin

v. Owen, 181 N.C. App. 511, 512, 640 S.E.2d 427, 428 (2007).

                                      Analysis

      In his amended complaint, plaintiff asserted a nonspecified claim for “damages

against the Defendants for the wrongs committed by those Defendants in connection

with the Special Proceeding,” a claim for punitive damages for defendants’

“aggravated and outrageous conduct,” and a UDTP claim. Even construing those

claims liberally, see id., they are not sufficiently pled to provide the substantive

elements of a legally recognized claim for which relief may be granted. See Booher v.

Frue, 86 N.C. App. 390, 392-93, 358 S.E.2d 127, 128 (1987).

      Plaintiff’s vague claim for damages based on defendants’ “wrongs” fails to state

any facts with particularity describing the circumstances of the alleged “wrongs” or

the amount of damages claimed. The conclusory statement that he suffered damages

without providing any underlying information “is insufficient to inform defendants of

the scope of his claim.” Skinner v. Reynolds, __ N.C. App. __, __, 764 S.E.2d 652, 658

(2014). Thus, the trial court did not err in dismissing this claim pursuant to Rule

12(b)(6). See id.

      Next, with regard to his claim for unfair and deceptive trade practices, plaintiff

alleges that defendants “constantly misled and lied” to him regarding his attempts



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                                THOMPSON V. BANK OF AMERICA

                                        Opinion of the Court



to modify his loan and that the signatures on various notices and correspondence

from defendants do not match.1

       “In order to establish a prima facie claim for unfair trade practices, a plaintiff

must show: (1) [the] defendant committed an unfair or deceptive act or practice, (2)

the action in question was in or affecting commerce, and (3) the act proximately

caused injury to the plaintiff.” Bumpers v. Cmty. Bank of N. Virginia, 367 N.C. 81,

88, 747 S.E.2d 220, 226 (2013).           “An act or practice is unfair if it “is immoral,

unethical, oppressive, unscrupulous, or substantially injurious to consumers” and an

act “is deceptive if it has the capacity or tendency to deceive.” Bob Timberlake

Collection, Inc. v. Edwards, 176 N.C. App. 33, 41, 626 S.E.2d 315, 322-23 (2006)

(internal quotation marks and citations omitted).

       Here, plaintiff failed to plead with sufficient particularity what alleged conduct

of defendants rose to the level of an unfair and deceptive trade practice in violation

of N.C. Gen. Stat. § 75-1.1 or how those acts proximately resulted in the foreclosure.

Specifically, other than his claim that certain signatures do not match, plaintiff’s

amended complaint is devoid of any support showing these acts were immoral or

substantially injurious or that they directly brought about the foreclosure.

Consequently, we affirm the trial court’s order dismissing plaintiff’s UDTP claim.


       1  Although plaintiff did allege that the Clerk’s order was “procured by [f]raud,” that claims
constitutes an impermissible attack on the Clerk’s order which is subject to dismissal for the reasons
explained in Section I above. Accordingly, we do not consider this allegation when determining the
sufficiency of plaintiff’s pleading with regard to his UDTP claim.

                                               - 10 -
                            THOMPSON V. BANK OF AMERICA

                                    Opinion of the Court



       Finally, plaintiff’s claims for punitive damages also fail to state a claim for

which relief may be granted. “[A] claim for punitive damages is not a stand-alone

claim.” Funderburk v. JPMorgan Chase Bank, N.A., No. __ N.C. App. __, __, __ S.E.2d

__, __ (COA14-1258) (June 16, 2015). In an action involving a foreclosure, if a

plaintiff’s claims for compensatory damages fail, the punitive damage claim fails as

well. Id. Here, since plaintiff’s claims for unspecified “damages” and UDTP are not

sufficiently pled to survive defendants’ Rule 12(b)(6) motion at trial, his punitive

damage claim also fails.

                                      Conclusion

       For the foregoing reasons, we allow defendants’ motion to dismiss plaintiff’s

appeal with regard to plaintiff’s claims collaterally attacking the Clerk’s order and

plaintiff’s equitable claims that fall within the scope of section 45-21.34.    As to

plaintiff’s remaining claims for compensatory and punitive damages, we affirm the

trial court’s order of dismissal.


       DISMISSED IN PART; AFFIRMED IN PART.

       Judges STROUD and MCCULLOUGH concur.

       Report per Rule 30(e).




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