The Court of Appeals has issued another opinion in the long line of borrower foreclosure appeals defeated by subject matter jurisdiction. In In re Foster (No. COA14-108) issued on February 17, the Court affirmed the trial court’s ruling that a borrower’s motion to enjoin a lender from future foreclosure efforts was improperly postured for consideration before the trial court and appropriately dismissed.
In power of sale foreclosure proceedings, the court’s jurisdiction is limited to making the findings prescribed under N.C. Gen. Stat. § 45-21.16—i.e., valid debt, default, right to foreclose, and notice to necessary parties. Any attempt to enjoin a foreclosure is properly raised in a separate proceeding. Despite this limitation, it is not uncommon for borrowers to treat foreclosure hearings as open forums, seeking to stay or enjoin the lender’s efforts for various justifications. In the case of pro se borrowers, this is not surprising since there is often a limited understanding, if any, of the law underlying the procedure. Borrowers’ attorneys, however, will sometimes strategically seek out of scope relief to avoid the costs of a separate proceeding and posting the mandatory bond required by N.C. Gen. Stat. § 45-21.34.
In In re Foster, the borrower sought injunctive relief against the lender, which the trial court appropriately denied given its limited jurisdiction. The Court of Appeals affirmed, confirming again that the proper means to enjoin a foreclosure is by bringing a separate action pursuant to N.C. Gen. Stat. § 45-21.34.