Please ensure Javascript is enabled for purposes of website accessibility
Home / Courts / N.C. Court of Appeals / Real Property – Mortgages – Foreclosure – Collateral Attack

Real Property – Mortgages – Foreclosure – Collateral Attack

Wilson v. SunTrust Bank (Lawyers Weekly No. 011-401-17, 21 pp.) (Valerie Zachary, J.) Appealed from Catawba County Superior Court (Gregory Hayes, J.) N.C. App.

Holding: Plaintiff alleges that the 2010 foreclosure on her house was the result of fraud; however, her allegations indicate intrinsic fraud, which can only be addressed by a motion under N.C. R. Civ. P. 60(b)(3), not a separate action.

We affirm the trial court’s grant of defendants’ motion to dismiss.

Plaintiff’s bare assertion that the trial court lacked jurisdiction is insufficient to overcome the presumption of regularity in the proceedings of our courts. The trial court did not err by denying plaintiff’s motion demanding that the trial court “show cause” that it had jurisdiction to preside over a hearing on defendants’ motions for dismissal of plaintiff’s claims.

The complaint alleges that defendants knowingly “perpetrated fraud upon the Clerk of the Court” by filing fraudulent and false documents whose veracity was in some way associated with the purported assignment of plaintiff’s loan to SunTrust Bank. Plaintiff alleges that these fraudulent documents were submitted so that defendants could obtain the Jan. 25, 2010, order of the clerk allowing the foreclosure to proceed.

Plaintiff also alleges that the documents filed in connection with the foreclosure sale, including the trustee’s deed recorded in February 2011, were false and fraudulent. Plaintiff claims “fraud upon the court” based upon allegations that the foreclosure on the note was obtained by means of defendants’ submission of false documents.

A decree will not be vacated merely because it was obtained by forged documents or perjured testimony. The reason of this rule is that there must be an end of litigation. When the alleged fraud complained of is intrinsic then it can only be the subject of a motion under Rule 60(b)(3).

The factual allegations of plaintiff’s complaint allege intrinsic fraud, which is not a claim or cause of action that may be the basis of an independent action, such as that filed by plaintiff. In addition, it is undisputed that plaintiff did not file a motion pursuant to Rule 60 seeking relief on the grounds of intrinsic fraud. The court did not err by ruling that plaintiff’s complaint based on “fraud upon the court” failed to state a claim upon which relief can be granted.

Even if plaintiff’s complaint could be construed to adequately state a claim for fraud, such a claim would be barred by the three-year statute of limitations. The complaint reveals that plaintiff discovered the alleged fraud by October 2010 at the latest, yet her complaint was not filed until 2016. As a result, the complaint does not state a valid claim for fraud.



Leave a Reply

Your email address will not be published. Required fields are marked *