An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-483
                       NORTH CAROLINA COURT OF APPEALS
                               Filed:   18 March 2014
MELISSA JOY FRIEDMAN,
     Plaintiff

                                                                 Iredell County
      v.
                                                                 No. 12 CVS 1812

BANK OF AMERICA, N.A. AS SUCCESSOR BY MERGER
TO BAC HOME LOANS SERVICING, LP f/k/a
COUNTRYWIDE HOME LOANS SERVICING, INC.; LISA
S. CAMPBELL, SUBSTITUTE TRUSTEE,
     Defendants


      Appeal by plaintiff from order entered 8 October 2012 by

Judge Mark E. Klass in Iredell County Superior Court.                     Heard in

the Court of Appeals 10 October 2013.

      Law Office of James W. Surane, PLLC, by James W. Surane,
      for Plaintiff.

      The Law Office of John T. Benjamin, Jr., P.A., by John T.
      Benjamin, Jr., and James R. White, for Defendants.

      ERVIN, Judge.

      Plaintiff      Melissa     Joy    Friedman    appeals     from    an    order

dismissing various claims that she asserted against Defendants

Bank of America, N.A., as successor to BAC Home Loans Servicing,

L/P., f/k/a Countrywide Home Loans Servicing, Inc., and Lisa S.

Campbell.       On   appeal,    Plaintiff     argues    that    she    had   stated

viable claims for         intentional or negligent misrepresentation,
                                         -2-
intentional       or   negligent       infliction     of    emotional     distress,

unfair   debt     collection,     unclean      hands,   punitive       damages,   and

violation of the Real Estate Settlement Procedures Act of 1974

in her second amended complaint and that the trial court erred

by dismissing that pleading.                 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 2001, Plaintiff purchased a tract of property located in

Mooresville,         having     financed       this     transaction       using    a

$536,250.00 loan procured from Approved Federal Savings Bank.

As   part    of   these      credit    arrangements,       Plaintiff    executed   a

promissory note and deed of trust in favor of Approved Federal,

with Neil W. Phelan having been designated as trustee under that

deed of trust.         On 26 December 2001, Approved Federal’s interest

in the note and deed of trust was assigned to Bank of New York.

On 13 December 2002, James P. Bonner was substituted for Mr.

Phelan as the trustee under the deed of trust.                     On 14 January

2003, Mr. Bonner            filed a petition seeking to foreclose upon

Plaintiff’s property           and served a notice          of hearing in that

proceeding upon Plaintiff.              As a result of the fact that Mr.

Bonner      failed     to     appear    at     the    scheduled    hearing,       the
                                               -3-
foreclosure        proceeding           was        involuntarily          dismissed         with

prejudice on 28 April 2003.

       On 31 July 2003, another notice of foreclosure was served

upon Plaintiff.         On 15 January 2004, the Clerk of Superior Court

of Iredell County entered an order determining that Bank of New

York was the holder of the note, that Plaintiff was in default

under    the    note    and      deed   of     trust,       and    that   Mr.     Bonner,     as

substitute trustee, was entitled to foreclose upon Plaintiff’s

property.       Although no explanation for this fact appears in the

record,    it    is     clear      that      no    foreclosure          sale     relating    to

Plaintiff’s      property        occurred         following       the    entry    of   the   15

January 2004 order.

       In September of 2009, BAC, a Bank of America subsidiary

which    claimed       to   be    the   holder       of     the    note    that     Plaintiff

executed in favor of Approved Federal, appointed Ms. Campbell as

substitute trustee under the deed of trust.                             On 6 October 2009,

Ms.     Campbell       served      a    notice       of      foreclosure         hearing     on

Plaintiff.       On 15 March 2010, Ms. Campbell sent Plaintiff a

notice of rights indicating that she, as substitute trustee, had

been    requested      to   initiate         foreclosure          proceedings      under     the

deed of trust that Plaintiff had executed in favor of Approved

Federal and informing Plaintiff of her rights as required by

statute.        Although         Ms.    Campbell          voluntarily      dismissed       this

foreclosure      proceeding        on     19      March    2010,    she    served      another
                                       -4-
notice of hearing on the same date naming BAC as the holder of

the note      and scheduling the foreclosure hearing            for 17 June

2010.1     At the foreclosure hearing, an affidavit executed by a

BAC employee asserted that BAC held the note that Plaintiff had

executed in favor of Approved Federal.               On 19 August 2010, the

Clerk    of    Superior     Court   entered   an     order   authorizing      Ms.

Campbell      to   proceed     with     the   foreclosure      based     on     a

determination that the “debtors have shown no valid legal reason

why foreclosure should not commence.”              A notice that Plaintiff’s

property would be sold as a result of the foreclosure proceeding

was filed on 15 June 2012.

                            B. Procedural History

     On 26 July 2012, Plaintiff filed a complaint against BAC

and Ms. Campbell in which she sought to recover compensatory and

punitive damages, to have the order authorizing the sale of her

property set aside, and to obtain the issuance of temporary,

preliminary, and permanent injunctive relief precluding the sale

of her property.      On that same day, the trial court temporarily

restrained the sale of Plaintiff’s property.             On 20 August 2012,

Ms. Campbell filed a responsive pleading in which she denied the

material      allegations    of     Plaintiff’s    complaint   and     asserted

various affirmative defenses.             On 5     September 2012,     Bank of


     1
      BAC’s   parent   company,   Bank    of   America,   assumed
responsibility for servicing Plaintiff’s loan on 1 July 2011.
                                                  -5-
America, acting in its capacity as successor to BAC, filed a

responsive        pleading         in    which     it    sought   to    have          Plaintiff’s

complaint dismissed on the grounds that Plaintiff had failed to

name    Bank     of   America           as   a   party   defendant      or       to    cause    the

issuance of a summons directed to Bank of America and on the

grounds that Plaintiff’s complaint failed to state a claim for

relief,        denied        the        material        allegations         of        Plaintiff’s

complaint, and asserted various affirmative defenses.

       On or about 6 September 2012, Plaintiff filed an amended

complaint against BAC and Ms. Campbell in which she sought to

recover compensatory and punitive damages, to have the order

authorizing the sale of her property set aside, and to obtain

the issuance of temporary, preliminary, and permanent injunctive

relief precluding the sale of her property.                                 On 12 September

2012, Plaintiff took a voluntary dismissal without prejudice of

her claim against BAC.

       On   21    September         2012,        Plaintiff    filed     a    second       amended

complaint        against      Bank       of      America,    in   its   capacity          as    the

successor        to   BAC,    and        Ms.     Campbell    in   which      she       sought    to

recover compensatory and punitive damages, to have the order

authorizing the sale of her property set aside, and to obtain

the issuance of temporary, preliminary, and permanent injunctive

relief precluding the sale of her property.                                 On 27 September

2012,    Defendants          filed       a     responsive    pleading        in       which    they
                                            -6-
sought to have Plaintiff’s second amended complaint dismissed on

the grounds that Plaintiff had failed to state a claim for which

relief    could   be    granted,         denied   the   material    allegations    of

Plaintiff’s       complaint,         and     asserted      various     affirmative

defenses.

     After    holding        a    hearing    on   27    September    2012   for   the

purpose of considering Plaintiff’s request for the issuance of a

preliminary injunction and Defendants’ request for the dismissal

of Plaintiff’s second amended complaint, the trial court entered

orders on 8 October 2012 granting Defendants’ dismissal motion

and denying Plaintiff’s motion for the issuance of a preliminary

injunction.       Plaintiff noted an appeal to this Court from the

trial court’s dismissal order.2

                       II. Substantive Legal Analysis
                                 A. Standard of Review

     “A motion to dismiss under N.C. Gen. Stat. § 1A-1, Rule

12(b)(6) for failure to state a claim upon which relief may be

granted     tests      the       legal     sufficiency     of   the    complaint.”

Signature Dev., LLC v. Sandler Commer. at Union, L.L.C., 207

N.C. App. 576, 582, 701 S.E.2d 300, 305 (2010), appeal dismissed




     2
      Consistently with her notice of appeal, Plaintiff has
refrained from challenging the denial of her request for the
issuance of a preliminary injunction in the brief that she has
filed with this Court on appeal.
                                 -7-
as moot, 365 N.C. 211, 710 S.E.2d 28, disc. review denied, 365

N.C. 211, 710 S.E.2d 333 (2011).

             In ruling on the motion, “the allegations of
             the complaint must be viewed as admitted,
             and on that basis the court must determine
             as a matter of law whether the allegations
             state a claim for which relief may be
             granted.”   Stanback v. Stanback, 297 N.C.
             181, 185, 254 S.E.2d 611, 615 (1979).
             Dismissal is proper “(1) when the complaint
             on its face reveals that no law supports
             plaintiff's claim; (2) when the complaint
             reveals on its face that some fact essential
             to plaintiff's claim is missing; and (3)
             when some fact disclosed in the complaint
             defeats the plaintiff’s claim.”      Schloss
             Outdoor Advertising Co. v. Charlotte, 50
             N.C. App. 150, 152, 272 S.E.2d 920, 922
             (1980).

Id.       In the course of engaging in the required analysis, the

plaintiff’s complaint should be liberally construed.        Dixon v.

Stuart, 85 N.C. App. 338, 340, 354 S.E.2d 757, 758 (1987).         A

trial court’s decision to grant a dismissal motion is subject to

de novo review by this Court.          Leary v. N.C. Forest Prods.,

Inc., 157 N.C. App. 396, 400, 580 S.E.2d 1, 4, aff’d, 357 N.C.

567, 597 S.E.2d 673 (2003).      We will now utilize this standard

of review in considering the validity of Plaintiff’s challenges

to the trial court’s order.3


      3
      As a general proposition, we note that Plaintiff’s
complaint consists of little more than a generalized recitation
of the elements of the claims that she wishes to assert couched
in the language of the applicable legal principles unaccompanied
by any significant factual overlay. In view of the fact that a
proper analysis of the sufficiency of an affirmative pleading
                                     -8-
                   B. Analysis of Plaintiff’s Claims
                      1. False Representation Claims

    In the course of challenging the trial court’s dismissal

order,    Plaintiff     contends    that   the    trial    court       erred   by

dismissing   her      intentional   and    negligent      misrepresentation,

unfair and deceptive practice,4 and intentional and negligent

infliction of emotional distress claims set out in her complaint

on the grounds that        her allegation that       Defendants had made

certain   material     misrepresentations    to   the     Clerk   of    Superior

Court in the course of the foreclosure proceeding sufficed to

preclude the entry of an order dismissing those claims.                        In

necessarily focuses on whether the pleading “gives sufficient
notice of the events or transactions which produced the claim to
enable the adverse party to understand the nature of it and the
basis for it, to file a responsive pleading, and—by using the
rules provided for obtaining pretrial discovery—to get any
additional information that he may need to prepare for trial,”
Sutton v. Duke, 277 N.C. 94, 104, 176 S.E.2d 161, 167 (1970),
and the fact that a defendant cannot understand the basis for
the plaintiff’s claim based solely upon a mere generalized
recitation   of   the   elements   of  the   plaintiff’s   claim
unaccompanied by any description of the facts upon which that
claim rests, litigants should avoid filing complaints or other
pleadings seeking affirmative relief that consist of little more
than a list of the elements of the claim that the litigant
wishes to assert.
    4
      Plaintiff’s unfair and deceptive practice claim hinges on
the assertion that Defendants violated N.C. Gen. Stat. § 75-54,
which prohibits any effort to collect a debt through the use of
“any fraudulent, deceptive or misleading representation,” by
falsely representing in the foreclosure proceeding that BAC was
the current note holder, a fact which, according to Plaintiff,
entitled her to the relief authorized by N.C. Gen. Stat. § 75-
16.
                                  -9-
support of this contention, Plaintiff claims that, even though

BAC represented that it was the holder of Plaintiff’s note in

the   foreclosure   proceeding,    she   had   demonstrated   in     her

complaint, including the attached documents, that Bank of New

York had been the holder of Plaintiff’s note and that BAC had

failed to provide any documentary support for its claim to have

subsequently become the holder of the note in question.            We do

not find Plaintiff’s argument persuasive.5

      As we have previously stated:

          Under the doctrine of collateral estoppel,
          or issue preclusion, a final judgment on the
          merits   prevents  relitigation   of   issues
          actually litigated and necessary to the
          outcome of the prior action in a later suit
          involving   a  different  cause   of   action
          between the parties or their privies.       A
          party   asserting  collateral   estoppel   is
          required to show that the earlier suit
          resulted in a final judgment on the merits,
          that the issue in question was identical to
          an issue actually litigated and necessary to
          the judgment, and that both the party
          asserting collateral estoppel and the party
          against whom collateral estoppel is asserted


      5
      After the record on appeal was filed with this Court,
Defendants filed a motion seeking to have this case dismissed on
the grounds that, to the extent that Plaintiff’s claims rested
on actions that occurred during the litigation of the underlying
foreclosure proceeding, those claims had been rendered moot by
the fact that the foreclosure proceeding had been completed.
Although we might agree with Defendants’ contention in the event
that Plaintiff was attempting to recover the property that she
lost through the foreclosure process, Plaintiff is now seeking
to recover damages rather than to regain possession of her
property. As a result, Defendants’ motion to dismiss this case
on mootness grounds should be, and hereby is, denied.
                                    -10-
           were either parties to the earlier suit or
           were in privity with the parties.

Williams v. Peabody, __ N.C. App. __, __, 719 S.E.2d 88, 93

(2011) (citations and quotation marks omitted) (quoting State ex

rel. Tucker v. Frinzi, 344 N.C. 411, 414, 474 S.E.2d 127, 128

(1996)).   According to N.C. Gen. Stat. § 45-21.16(d), the Clerk

of Superior Court must determine, in the course of addressing a

foreclosure    proceeding,   that    the    person     or    entity    on   whose

behalf the foreclosure proceeding has been brought is the holder

of the note.     Moreover, the documents attached to Plaintiff’s

complaint indicate     that the Clerk of Superior Court did,                   in

fact, determine that BAC held Plaintiff’s note.                 As a result,

the issue of whether BAC was the holder of Plaintiff’s note was

“actually litigated and necessary to the outcome of the prior

action,” Williams, __ N.C. App. at __, 719 S.E.2d at 93, and

cannot be relitigated in this civil action.                  Thus, since the

complaint alleges facts that preclude Plaintiff from asserting

that BAC had falsely represented itself to be the note holder,

the   claims   that   Plaintiff     has    attempted    to    assert    against

Defendants based upon that contention are barred by the doctrine

of collateral estoppel.

      In addition,    a number of the claims            that Plaintiff has

asserted in reliance upon the contention that Defendants falsely

represented that BAC held the note that Plaintiff had executed
                                                 -11-
in favor of Approved Federal were subject to dismissal for other

reasons as well.                 For example, Plaintiff failed to allege any

facts describing the allegedly false representation upon which

she   predicates           her    claim     that    Defendants        violated     N.C.   Gen.

Stat.      §    75-54,       a     deficiency       that      provides     an     independent

justification          for       the      dismissal      of    Plaintiff’s       unfair    and

deceptive practices claim.                   In addition, Plaintiff’s intentional

and   negligent        infliction           of    emotional         distress     claims   were

properly       dismissed          given    Plaintiff’s        failure    to     allege    facts

tending        to    show        that     she    had     sustained      severe     emotional

distress.           E.g., Holloway v. Wachovia Bank & Trust Co., N.A.,

339   N.C.      338,    351,       452     S.E.2d   233,      240    (1994)     (noting   that

severe emotional distress is an essential element of a claim for

intentional infliction of emotional distress); Williams v. HomEq

Servicing Corp., 184 N.C. App. 413, 419, 646 S.E.2d 381, 385

(2007) (quoting Johnson v. Ruark Obstetrics, 327 N.C. 283, 304,

395     S.E.2d       85,     97     (1990))       (stating      that     severe    emotional

distress is an element of a negligent infliction of emotional

distress        claim,       with        examples       of    such    distress      including

“‘neurosis, psychosis, chronic depression, phobia, or any other

type of severe and disabling emotional or mental condition which

may   be       generally         recognized       and    diagnosed       by     professionals

trained to do so’”).                As a result, the trial court did not err

by      dismissing               Plaintiff’s           intentional        and       negligent
                                         -12-
misrepresentation,          unfair      and     deceptive       practices,      and

intentional    and     negligent        infliction     of     emotional   distress

claims for failure to state a claim upon which relief can be

granted.

                                2. Unclean Hands

    Secondly, Plaintiff asserts that the trial court erred by

dismissing her “unclean hands” claim.                      In essence, Plaintiff

contends that she adequately alleged an “unclean hands” claim

based on the assertion that Defendants’ conduct violated the

provisions of a consent judgment to which Bank of America was

subject.      Once    again,     we    conclude     that    Plaintiff’s   argument

lacks merit.

    Although Plaintiff treats Defendants’                    “unclean hands” as

sufficient    to     support    an    affirmative     claim    for   relief,    this

assumption    rests     upon    a     fundamental    misunderstanding      of   the

relevant legal doctrine.              According to well-established North

Carolina     law,     the      “unclean    hands”      doctrine,      instead     of

supporting the assertion of “an equitable claim,” provides an

equitable defense to an affirmative claim asserted by a person

who or an entity which has allegedly acted in an “unclean” or

inequitable manner.            E.g., Roberts v. Madison Cnty. Realtors

Ass'n, 344 N.C. 394, 399, 474 S.E.2d 783, 787 (1996) (holding

that, “[w]hen equitable relief is sought, courts claim the power

to grant, deny, limit, or shape that relief as a matter of
                                    -13-
discretion . . . normally invoked by considering an equitable

defense, such as unclean hands”); Elliott v. Enka-Candler Fire &

Rescue Dep’t, Inc., 213 N.C. App. 160, 162, 713 S.E.2d 132, 134

(2011) (noting that the “defendant filed an answer and asserted

several affirmative defenses, including unclean hands”).                  As a

result, given that the “unclean hands” doctrine provides the

basis for the assertion of an equitable defense rather than an

equitable claim, the trial court properly dismissed Plaintiff’s

“unclean hands” claim.

                                   3. RESPA

       Thirdly, Plaintiff contends that the trial court erred by

dismissing the claim that she asserted pursuant to RESPA, which

has been codified at 12 U.S.C. § 2601, et. seq.                  According to

Plaintiff’s complaint, BAC violated RESPA by failing to respond

to certain written requests for information and by failing to

notify Plaintiff in a timely manner that Plaintiff’s loan had

been    transferred.      We   do     not       find   Plaintiff’s   argument

persuasive.

        a. Failure to Respond to Qualifying Written Request

       According to 12 U.S.C. § 2605(e)(2)(C), a loan servicer

that    receives   a   qualified    written       request   is   required   to

“provide    the    borrower    with         a    written    explanation     or

clarification” within thirty days of the date of receipt “after

conducting an investigation.”         Although a plaintiff who is able
                                             -14-
to show that a violation of 12 U.S.C. § 2605(e)(2)(C) occurred

is    entitled        to    assert     a   claim    against      the    offending   loan

servicer, we do not believe that Plaintiff has pled sufficient

facts to establish that a violation of the relevant statutory

provision       actually       occurred.         Simply   put,     although   Plaintiff

alleged that “BAC/BOA failed to respond in a proper and timely

way”       to   her        written    requests      pursuant       to    12   U.S.C.    §

2605(e)(2)(C)(i), she failed to make any allegations concerning

the    dates    upon       which     the   requests    were   made,     the   nature   of

Plaintiff’s requests, or the dates upon which BAC responded to

Plaintiff’s       requests.           In   the     absence    of   such    allegations,

Defendants have no ability to identify the facts that form the

basis for Plaintiff’s contention that an alleged violation of 12

U.S.C. § 2605(e)(2)(C) occurred.6                     Davis v. Bowens, 2012 U.S.

Dist. LEXIS 101402 at *20, 2012 WL 2999766 at *6 (M.D.N.C. July
       6
      The complete absence of any factual allegations concerning
the dates upon which Plaintiff’s requests were made and upon
which    Defendant  responded   to   Plaintiff’s   requests   is
particularly significant given that, until July, 2010, a loan
servicer had 60 days within which to respond to a qualifying
request, Pub. L. No. 101-625, § 941(e)(2)(C)(1), 104 Stat. 4079,
4409, and that, after July 2010, the statutorily required
response time was reduced to 30 days. Pub. L. No. 111-203, §§ 4
& 1463(c)(2), 124 Stat. 1376, 1390, 2184.    As a result of the
fact that Plaintiff’s complaint makes many references to actions
that occurred in 2010 and the fact that Plaintiff has provided
no factual allegations concerning the date upon which the
alleged violation of 12 U.S.C. § 2605(e)(2)(c) occurred, we are
simply unable to determine whether Plaintiff has actually
alleged that Defendants failed to respond to any qualifying
written requests that she may have submitted to them in a timely
manner.
                                         -15-
23, 2012) (memorandum opinion and recommendation), adopted, 2012

U.S. Dist. LEXIS 136677, 2012 WL 4462184 (M.D.N.C. Sept. 25,

2012)   (holding     that,     since    the       “[p]laintiff     has     included       no

factual     matter      showing     that        his   alleged     written        demands”

constituted      qualified        written         requests,     those      claims      were

subject to dismissal).          As a result, Plaintiff’s complaint fails

to state a claim for relief predicated upon an alleged violation

of N.C. Gen. Stat. § 12 U.S.C. 2605(e)(2)(C).

               b. Failure to Provide Notice of Transfer

    According        to   12   U.S.C.      §§     2605(c)(1)    and     2605(c)(2)(A),

“[e]ach     transferee     servicer          to    whom   the    servicing        of     any

federally    related      mortgage      is    assigned,       sold,   or    transferred

shall   notify    the     borrower     of       any   such    assignment,        sale,    or

transfer” within fifteen days “after the effective date of the

transfer of the servicing of the mortgage loan (with respect to

which such notice is made),” subject to certain exceptions set

out in 12 U.S.C. §§ 2605(c)(2)(B) and 2605(c)(2)(C).                               In her

complaint, Plaintiff alleged that BAC “failed to send notice of

transfer of loan servicing to the Plaintiff within 15 days after

the effective date of transfer of the servicing of the mortgage

loan, in violation of 12 U.S.C. § 2605(c).”                             In her brief,

however,    Plaintiff      argues      that       Defendants     “did      not    provide

Plaintiff or the trial court with a notice of transfer of loan”

in a timely manner.            A cursory reading of 12 U.S.C. § 2605(c)
                                           -16-
establishes       that     any    claim    for     relief     under    that      statutory

subsection must relate to the transfer of responsibility for

servicing a loan rather than a transfer of the loan itself.                             For

that reason, the argument advanced in Plaintiff’s brief does not

provide any basis for overturning the decision that the trial

court actually made.              Viar v. N.C. Dept. of Transp., 359 N.C.

400, 402, 610 S.E.2d 360, 361 (2005)) (stating that “[i]t is not

the role of the appellate courts . . . to create an appeal for

an appellant”).          In addition, Plaintiff has completely failed to

allege any facts in support of her contention that Defendants

violated 12 U.S.C. § 2605(c), including the approximate date

upon which the alleged transfer of responsibility for servicing

Plaintiff’s       loan     occurred       and    the    identity      of   the   entities

involved     in   the      alleged    transfer.          In    the    absence     of   such

allegations, Defendants have been provided no meaningful notice

of    the   nature    of    the   claim     that       Plaintiff     has    attempted    to

assert      against     them     in   reliance      upon      12   U.S.C.    §    2605(c).

Davis, 2012 U.S. Dist. LEXIS 101402 at *16, 2012 WL 2999766 at

*5.    As a result, the trial court did not err by dismissing this

aspect of Plaintiff’s RESPA claim either.7


       7
      Although Plaintiff has also challenged the dismissal of her
punitive damages claim, any award of punitive damages is “only
[appropriate] if the claimant proves that the defendant is
liable for compensatory damages.”    N.C. Gen. Stat. § 1D-15(a).
In light of our decision to uphold the dismissal of the
substantive claims asserted in Plaintiff’s complaint, we need
                                        -17-
                                 C. Other Issues

       Finally, Plaintiff contends that the trial court erred by

failing to determine that the institution and maintenance of the

foreclosure proceeding that led to the loss of her property was

precluded by the doctrine of res judicata in light of the fact

that   a   prior   foreclosure     proceeding         had   been   dismissed       with

prejudice based upon the trustee’s failure                     to appear at the

foreclosure       hearing   and    by     allowing      the    same     counsel      to

represent both Ms. Campbell, in her capacity as trustee, and

Bank of America, in its capacity as lender and servicer, in the

present proceeding.         We do not believe that either of these

arguments provides any basis for overturning the trial court’s

dismissal order.

       Although    the   exact    nature       of    Plaintiff’s      res    judicata

argument is somewhat unclear, we understand her to be contending

that the trial court should have determined that the foreclosure

proceeding    in    which   she    lost   her       property   should       have   been

decided in her favor on res judicata grounds.                      Aside from the

fact that this claim was not asserted in Plaintiff’s complaint,

Plaintiff’s argument totally overlooks the fact that Plaintiff,

having failed to challenge the foreclosure order on the basis of

the res judicata argument upon which she now seeks to rely in


not address the dismissal of her punitive damages claim in any
detail in this opinion.
                                           -18-
the   manner   required      by     the    applicable       law,    is    bound       by    the

outcome in the underlying foreclosure proceeding.                             According to

well-established North Carolina law, the very doctrine of res

judicata    upon     which    Plaintiff       relies    “bars       every       ground      of

recovery or defense which was actually presented or which could

have been presented in the previous action.”                             Goins v. Cone

Mills Corp., 90 N.C. App. 90, 93, 367 S.E.2d 335, 336-37, disc.

rev. denied, 323 N.C. 173, 373 S.E.2d 108 (1988).                                 Although

Plaintiff could have raised the res judicata argument upon which

she now relies in the foreclosure proceeding, she refrained from

acting in that manner and has, instead, sought to raise that

claim in this civil action.               As a result, we have no hesitation

in concluding that Plaintiff’s res judicata claim is barred by

the very doctrine upon which Plaintiff now seeks to rely.

      In   addition,    although          Plaintiff    is    certainly         correct       in

pointing    out      that,    according        to     N.C.    Gen.       Stat.        §     45-

21.16(c)(7)(b), “the trustee [under a deed of trust] . . . is a

neutral    party      and,    while        holding     that        position       in        the

foreclosure proceeding may not advocate for the secured creditor

or for the debtor in the foreclosure proceeding,” we are unable

to    understand     why     this     principle       provides       any       basis        for

overturning    the    trial       court’s    dismissal       order       in    this       case.

Aside   from   the    fact    that    Plaintiff       does    not    appear       to       have

raised this issue in the trial court, Westminster Homes, Inc. v.
                                       -19-
Town of Cary Zoning Bd. of Adjustment, 354 N.C. 298, 309, 554

S.E.2d 634, 641 (2001) (holding that “issues and theories of a

case not raised below will not be considered on appeal”), or to

have alleged any claim on the basis of this alleged conflict of

interest     in    her    complaint,    we    see   no       indication   that    the

conflict of interest upon which Plaintiff relies occurred “[i]n

the instant case.”           Instead, having been named as parties in

Plaintiff’s complaint, Ms. Campbell and Bank of America retained

the same counsel to represent them in this subsequent civil

action.     Plaintiff has not pointed us to any authority tending

to   show   that    the   maintenance    of    such      a   joint   defense     in   a

subsequent civil action in any way violates N.C. Gen. Stat. §

45-21.16(c)(7)b, and we know of none.                 As a result, the final

arguments advanced in Plaintiff’s brief provide no basis for

overturning the trial court’s dismissal order.

                                III. Conclusion

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

none of Plaintiff’s challenges to the trial court’s dismissal

order have merit.          As a result, the trial court’s order should

be, and     hereby is, affirmed.8


      8
      On 19 June 2013, Defendants filed a motion seeking the
imposition of sanctions against Plaintiff on the grounds that
Plaintiff had failed to comply with the 24 May 2013 order of the
Court striking certain portions of the record on appeal as filed
and requiring Plaintiff to file an addendum to the     record on
appeal that contained several items that the parties had
                             -20-
    AFFIRMED.

    Judges ROBERT N. HUNTER, JR., and DAVIS concur.

    Report per Rule 30(e).




previously agreed should be included in that document on or
before 14 June 2013.   In response, Plaintiff asserted that she
had not received the order that she was alleged to have
violated, that she had only learned about it when she received
Defendants’ 19 June 2013 sanctions motion, and that she would
comply with the order in question immediately.     In light of
these filings, the Court entered an order on 5 July 2013
requiring Plaintiff to file the addendum on or before 15 July
2013, providing that Plaintiff’s appeal would be dismissed if
she failed to make the required filing, and referring the issue
of whether additional sanctions should be imposed to the panel
to which this case would be assigned for further consideration.
The addendum to the record referenced in the 24 May 2013 and 5
July 2013 orders was filed on 10 July 2013.    Although we find
Plaintiff’s failure to comply with the Court’s prior order
troubling, we conclude, in the exercise of our discretion, that
no additional sanctions should be imposed in this instance.
However, we admonish Plaintiff to remain informed about and to
scrupulously comply with her obligations in connection with the
course of the record settlement process in the future.     As a
result, Defendants’ sanctions motion should be, and hereby is,
denied.
