In re Miller
In re Miller
Opinion of the Court
Eugene Miller assigns error to the admission of testimony by the trustee regarding a letter about Eugene Miller’s role in an earlier foreclosure sale of the same property. He claims the letter was not authenticated and the testimony was irrelevant. He also assigns error on the grounds of relevance to the admission of testimony from the trustee concerning the procedural history of the foreclosure. This evidence was clearly admissible; however, the findings based on this evidence were not essential to the trial judge’s conclusions or judgment, and thus there is no possibility of prejudicial error.
Eugene Miller contends that various findings of fact made by the trial judge are not supported by the evidence, and that the trial judge’s order must be vacated and the cause remanded. We disagree for the following reasons:
G.S. 45-21.27(a) provides that an upset bid is an advanced, increased, or raised bid offering to purchase real property in an amount exceeding by a certain percentage the price at which the property previously sold, where the increased amount is deposited with the clerk, and where the deposit is made within ten days of the report of foreclosure sale required by G.S. 45-21.26 and 45-21.29(e). Whenever an upset bid is submitted, together with a compliance bond if one is required, G.S. 45-21.29(a) requires the clerk to order a resale. The provisions regarding compliance bonds are set forth in G.S. 45-21.27(b):
The clerk of the superior court may require the person submitting an upset bid also to deposit a cash bond, or, in lieu thereof at the option of the bidder, a surety bond, approved by the clerk. The amount of such bond shall not exceed the amount of the upset bid less the amount of the required deposit.
On 6 December 1983 the clerk ordered that any upset bid be secured by a G.S. 45-21.27(b) compliance bond in the amount of the upset bid less the amount of the required deposit.
The undisputed evidence shows that the bonds first presented by John A. Miller and accepted by the clerk apparently complied with the clerk’s order since they totaled $100,000. However, competent evidence also shows, in support of the trial judge’s pertinent findings, that John A. Miller misrepresented his assets and liabilities in an affidavit used to support his surety bond. Indeed, Eugene Miller never excepted to the findings that John A. Miller swore to liabilities of $2,300 when he had outstanding judgments against him far in excess of that amount. Nor did he except to the finding that in July of 1983 he completed an affidavit of indigency which listed $80,000 in liabilities, compared to the $2,300 he listed in December 1983.
In light of all the evidence and findings that John A. Miller had misrepresented his security for the compliance bond, the
The clerk of the superior court shall make all such orders as may be just and necessary to safeguard the interests of all parties, and shall have authority to fix and determine all necessary procedural details with respect to resales in all instances in which this Article fails to make definite provision as to such procedure.
The superior court judge likewise acquired authority to set aside the approval of John A. Miller’s surety bond pursuant to G.S. 1-276 when Eugene Miller appealed the controversy to him.
Without a valid compliance bond, the upset bid had no effect and the clerk was not required to order a resale. G.S. 45-21.29(a). Since the bond and hence the upset bid were properly declared void, the trial judge properly concluded that Eugene Miller had not filed an upset bid within the time required by law. The record indicates that the ten day period of G.S. 45-21.27(a) for filing an upset bid elapsed without a valid bid being filed. It was thus appropriate to order confirmation of the resale to Lexington State Bank. G.S. 45-21.29(h).
Affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.