Opinion
No. COA14–498.
2014-12-2
In the Matter of the Foreclosure of a Deed of Trust executed by Courtney M. POWELL aka Courtney Powell (Present Record Owner(s): Courtney M. Powell) in the Original amount of $107,813.00 dated November 12, 2008, recorded in Book 6092, Page 635, Durham County Registry Substitute Trustee Services, Inc., Substitute Trustee.
The Law Office of Benjamin D. Busch, PLLC, by Benjamin D. Busch, for appellant.Hutchens Law Firm, by Hilton T. Hutchens, Jr. and Natasha M. Barone, for appellee.
Affirmed.
Dillon, J., concurred in result by separate opinion.
Appeal by Courtney M. Powell from order entered 20 November 2013 by Judge Paul C. Ridgeway in Durham County Superior Court. Heard in the Court of Appeals 7 October 2014. The Law Office of Benjamin D. Busch, PLLC, by Benjamin D. Busch, for appellant. Hutchens Law Firm, by Hilton T. Hutchens, Jr. and Natasha M. Barone, for appellee.
ROBERT C. HUNTER, Judge.
Courtney M. Powell (“appellant”) appeals from the trial court's order denying her motion to set aside a foreclosure sale of her residence. Appellant contends that the trial court abused its discretion in denying her motion because Substitute Trustee Services, Inc. (“STS”) failed to exercise due diligence before attempting to serve appellant by posting notice of the hearing for foreclosure on her door. Therefore, appellant argues that she was never properly served with notice of the hearing for foreclosure, and the order entered in the foreclosure proceeding is void.
After careful review, we affirm the trial court's order.
orDILLON, Judge, concurring in the result.
I concur in the result reached by the majority that the trial court did not err in denying Appellant's motion to set aside the foreclosure order. However, I disagree with the majority that Rule 4(j1) of the North Carolina Rules of Civil Procedure is conjunctive, and not disjunctive.
Rule 4(j1) states that a party may be served by publication when that party “cannot with due diligence be served by personal delivery, registered or certified mail, or by a designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2)[.]” N.C. Gen.Stat. § 1A–1, Rule 4(j1) (2013) (emphasis added). I agree with the majority that “[a] statute's words should be given their natural and ordinary meaning[.]” Grassy Creek Neighborhood Alliance, Inc. v. City of Winston–Salem, 142 N.C.App. 290, 297, 542 S.E.2d 296, 301 (2001). I also agree with the majority that the word “or” in a list typically requires an interpretation that the list is to be read in the disjunctive. See id. However, when the list is preceded by the word “not” or “cannot,” the context may require that the list be read in the conjunctive. For example, if a father tells his daughter that she is not allowed to go to the movies or to the football game, the parent has effectively told the child that she is not allowed to do either activity; that is, she may not go to the movies and she may not go to the football game. However, if the father tells his daughter that she is not allowed to go to the movies and to the football game, the parent has only stated that she may not do both activities, but that she could do one or the other. In the field of logic, the “not ... or” construct is governed by a principle known as DeMorgan's Law, which provides, in part, that the negation of a disjunction is the conjunction of the negatives; that is, “not (A or B)” is the same as “not A and not B.” Accordingly, applying DeMorgan's Law, I believe the plain language of Rule 4(j1) requires a showing that a party may only be served by publication where it is shown that the party cannot with due diligence be served by any of the listed methods, not just one of them. See State v. Martin, –––N.C.App. ––––, 762 S.E.2d 1, 2014 WL 2507920, at *5, 2014 N.C.App. LEXIS 591, at *12–13 (2014) (unpublished decision) (applying DeMorgan's Law in construing the former version of N.C. Gen.Stat. § 14–112.2).
I believe that Barnes v. Wells, cited by the majority, is not controlling. In Barnes, we were construing a prior version of Rule 4 which was not written in the “not ... or” construct, but rather used the word “or” by itself, providing that a party may be served by publication where “there has been a diligent but unsuccessful attempt to serve the party under either Paragraph A [personal service] or Paragraph B [registered or certified mail] or under Paragraphs A and B of this subsection.” 165 N.C.App. 575, 582, 599 S.E.2d 585, 590 (2004) (construing N.C. Gen.Stat. § 1A–1, Rule 4(j)(9)(1979)). Accordingly, I believe that under the current version of Rule 4, a party may be served by publication where the party cannot with due diligence be served by any of the following: (1) personal delivery, (2) registered or certified mail, (3) a designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2).
Even though I believe the word “or” in Rule 4(j1) is to be read in the conjunctive, I do not believe the Rule requires that a party must actually attempt to serve the opposing party in all three ways before utilizing service by publication. Rather, the Rule only requires that a party must show that the opposing party “cannot with due diligence be served” by any of the three methods. In the present case, the substitute trustee attempted to serve Appellant by personal service at her home through the Sheriff's office and by certified mail. Based on the foregoing, where the appellant has refused to claim a certified letter, I believe that it is proper to conclude that the appellant could not with due diligence have been served by UPS or FedEx or another method authorized pursuant to 26 U.S.C. § 7502(f)(2). In a case cited by the majority, we have held that a party “is not required to jump through every hoop later suggested by a defendant in order to meet the requirement of ‘due diligence.’ This is particularly true when there is no indication in the record that any of the steps would have been fruitful.” Jones v. Wallis, 211 N.C.App. 353, 359, 712 S.E.2d 180, 185 (2011). Accordingly, I agree with the majority that the trial court did not err in denying Appellant's motion to set aside the foreclosure order.