Griffin v. Roberts
Griffin v. Roberts
Opinion of the Court
Plaintiff brings forward two assignments of error. First, he contends the trial court erred by granting defendants’ motion to dismiss the complaint for failure to state a claim upon which relief can be granted. Second, plaintiff assigns error to the trial court’s refusal to set aside the judgment dismissing the complaint. Because plaintiff has not met the requirements to set aside a foreclosure sale under North Carolina case law, we affirm the trial court’s rulings.
In his complaint, plaintiff sets forth that the properties securing the deeds of trust were sold at public auction on 7 August 1985 and resold on 5 September 1985 and 7 October 1985, each resale following an upset bid. After the 7 October 1985 sale, plaintiff entered an upset bid on both parcels. The complaint alleges that on 5 November 1985 plaintiff was told by a deputy clerk of Superior Court of Duplin County that if he did not attend the scheduled 7 November resale his upset bids would be the opening bids and that if he was not the high bidder at the sale he would have ten days to enter new upset bids. Plaintiff did not attend the sale, and Hall and FHA were the high bidders. Plaintiffs brother-in-law telephoned the clerk’s office on 12 November 1985 and was told that plaintiff was the high bidder at the 7 November sale. On 14 November 1985, plaintiff personally called the clerk’s office and was given the same information. The complaint also alleges that on 18 November 1985, the last day to enter upset bids, both plaintiff and his brother-in-law were told by the clerk’s office that plaintiff was the high bidder. The next day, plaintiffs father-in-law went to an attorney who had been hired to finalize plaintiff s purchase of the property. After an inquiry, the attorney discovered that plaintiff was not the high bidder at the 7
On 15 July 1986, plaintiff instituted this action to set aside the sale and compel another sale. Plaintiff alleged the purchase price for both parcels was grossly inadequate. Roberts purchased parcel one for $16,500.00, and FHA purchased parcel two for $21,525.00. Plaintiff alleged the reasonable fair market value of parcel one was $40,000.00 and the reasonable fair market value of parcel two was $25,500.00. Plaintiff contends the inadequate purchase price and the misinformation from the clerk’s office combine to allow him to set aside the sale under Swindell v. Overton, 310 N.C. 707, 314 S.E. 2d 512 (1984). We disagree.
It is a well-established rule in North Carolina that “[ajllega-tions of inadequacy of the purchase price realized at a foreclosure sale which has in all other respects been duly and properly conducted in strict conformity with the power of sale will not be sufficient to upset a sale.” Swindell v. Overton, 310 N.C. at 713, 314 S.E. 2d at 516. To set aside the sale, the inadequacy of the purchase price must be coupled with some other irregularity in the sale. Hill v. Fertilizer Co., 210 N.C. 417, 187 S.E. 577 (1936); Roberson v. Matthews, 200 N.C. 241, 156 S.E. 496 (1931); Swindell v. Overton, supra.
[I]t is the materiality of the irregularity in such a sale, not mere inadequacy of the purchase price, which is determinative of a decision in equity to set the sale aside. Where an irregularity is first alleged, gross inadequacy of purchase price may then be considered on the question of the materiality of the irregularity.
Swindell v. Overton, 310 N.C. at 713, 314 S.E. 2d at 516.
Plaintiff has not shown an irregularity entitling him to set aside the sale. The alleged erroneous information from the clerk’s office does not amount to such an irregularity. See, e.g., Swindell v. Overtoil, supra (trustee sold as one parcel land held under two separate deeds of trust; held, trustee’s en masse sale of both tracts constitutes an irregularity sufficient for the court to consider setting aside sale); Foust v. Loan Asso., 233 N.C. 35, 62 S.E. 2d 521 (1950) (trustee erroneously reported that land valued between $5,500.00 and $6,000.00 was sold for $6,400.00 when it was
Plaintiffs assignments of error are overruled and the rulings of the trial court are affirmed.
Affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.