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Arbitration – Real Property – Mortgages – Foreclosure – Power of Sale

In re Foreclosure by Carter (Lawyers Weekly No. 12-07-0257, 9 pp.) (Robert C. Hunter, J.) Appealed from New Hanover County Superior Court. (Russell J. Lanier Jr., J.) N.C. App.

Holding: Even though the parties’ note and deed of trust included arbitration provisions, when the substitute trustee commenced foreclosure proceedings under the deed of trust’s power of sale, both the clerk of court’s and the superior court’s scope of review was limited to issues related to the six findings required by G.S. § 45-21.16. Respondents’ argument concerning their right to arbitration was not pertinent to the six required findings; consequently, the superior court properly refused to rule on respondents’ motion to stay the foreclosure proceedings and compel arbitration.

Respondents’ appeal is dismissed.

Respondents should have raised their right to arbitrate in a motion to enjoin under G.S. § 45-21.34, which grants the trial court authority to issue a stay and enforce the arbitration agreement set out in the deed of trust. Respondents’ arbitration motion constituted a “matter” that could be properly raised in a motion to enjoin pursuant to § 45-21.34. Thus, respondents chose the wrong statutory vehicle to assert their arbitration motion.


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