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NOW COMES, ___________________ (Movant), in the above

captioned matter pursuant to Rule 60(b)(4) of the North

Carolina Rules of Civil Procedure and moves to set aside that

voluntary dismissal filed herein on ___ __, 0000 as void, and

in support thereof states:

1. On _______ __, 0000, Grady Ingle, Substitute

Trustee (hereinafter Trustee), initiated the above captioned

foreclosure by filing a Notice of Hearing with the Gaston

County Clerk.

2. A hearing before the Clerk was held on ___ __, 0000.

That same day, the Clerk entered an order allowing the Trustee

to proceed to foreclosure sale. The clerks order was a final

judgment in that it left nothing to be judicially determined.

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION COUNTY OF GASTON BEFORE THE CLERK 08 SP ___

In the matter of the foreclosure of a Deed of Trust executed by _____ _. ______ and _____ _. ______ in the original amount of $000,000.00 dated __________ 00, 0000 and recorded in Book ____ at Page ____ in the Gaston County Public Registry, North Carolina

Substitute Trustee: Grady Ingle or Elizabeth Ells

MOTION TO SET ASIDE A PROCEEDING AS VOID N.C.G.S. 1A-1, Rule 60(b)(4)

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Indeed, the Clerk characterized her order as such in

concluding that the trustee is hereby authorized to proceed

with foreclosure of the deed of trust in the manner prescribed

by law. A true copy of that order is attached hereto as

Exhibit A and incorporated by reference.

3. After the clerk entered a final judgment on the

Trustees petition for foreclosure, the Trustee filed a

voluntary dismissal on ___ __, 0000. Discussed infra, the

purported voluntary dismissal is of no legal efficacy, a

nullity. A true copy of that dismissal is attached hereto as

Exhibit B and incorporated by reference.

4. The General Assembly has provided specific

procedures for conducting a power of sale foreclosure. Among

those are provisions governing foreclosures after the clerk

has entered its decision. If a party aggrieved by an order or

judgment entered by the clerk may, within 10 days of entry of

the order or judgment, appeal to the appropriate court for a

trial or hearing de novo. N.C. Gen. Stat. 1-301.1.1

Further, the clerks order is a final judgment and remains in

effect until it is . . . replaced by an order or judgment of a

judge. Id. A notice of appeal de novo neither stays nor

1 Here, Movant had until ___ __, 0000 to file an appeal; however, that right was cut off by the Trustees voluntary dismissal filed on ___ __, 0000.

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renders the clerks order moot. There is absolutely no

provision granting the trustee the authority to voluntarily

dismiss this action after the clerk had entered her decision.

5. In all actuality, the Trustee seeks to set aside the

Clerks order by the use or attempted use of a voluntary

dismissal for which he has no authority. The usual method for

seeking relief is by filing a motion under Rule 60(b) of the

North Carolina Rules of Civil Procedure. Nonetheless, other

means may be sufficient. Nomenclature is unimportant, moving

papers that are mislabeled in other ways may be treated as

motions under Rule 60(b) when relief would be proper under

that rule. 7 J. Moore & J. Lucas, Moore's Federal Practice

60.18[8], at 60-139 (2d ed. 1983). Although Rule 60 says that

the court is to act on motion, it does not deprive the court

of the power to act in the interest of justice in an unusual

case where its attention has been directed to the necessity

for relief by means other than a motion. Taylor v. Triangle

Porsche-Audi, Inc., 27 N.C. App. 711, 717, 220 S.E.2d 806, 811

(1975), cert. denied, 289 N.C. 619, 223 S.E.2d 396 (1976). In

the event this Court properly characterizes the Trustees

voluntary dismissal as a motion to set aside the clerks

order, Movant opposes any and all relief sought.

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6. Undeniably, a voluntary dismissal is proper only

when made prior to the entry of final judgment. Wood v. Wood,

37 N.C. App. 570, 574-75, 246 S.E.2d 549, 552 (1978), revd on

other grounds, 297 N.C. 1, 252 S.E.2d 799 (1979). After final

judgment, any correction, modification, amendment, or setting

aside of the judgment can be done only by the court. Id. at

575, 246 S.E.2d at 552. In the case at bar, the Trustees

notice of voluntary dismissal came after the clerk entered

final judgment on the Trustees petition for foreclosure. The

Trustees purported voluntary dismissal was, therefore, of no

legal efficacy. Id. Void, a nullity, invalid from the outset.

7. Discussed supra, extensive research has failed to

disclose any rule, statute, or case which grants a trustee or

mortgagee the right to take a voluntary dismissal, whether

with or without prejudice, after the clerk has reached a final

decision. For very good reason. It would render the clerks

role in Chapter 45 proceedings ministerial and its decisions

meaningless. It is not permissible to allow a party to

successfully attack a final judgment by the use or attempted

use of a voluntary dismissal. As discussed, any correction,

modification, amendment, or setting aside of a judgment can be

done only by the court. Id.

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8. Our Court has explicitly recognized the right to

invoke Rule 60 in a foreclosure action. In re Foreclosure of

Lien by Ridgeloch Homeowners Ass'n, 182 N.C. App. 464, 469,

642 S.E.2d 532, 536 (2007) (affirming the Clerks order

setting aside a foreclosure judgment pursuant to Rule 60). In

Bradley v. Bradley, the Court specifically approved of the use

of a Rule 60(b)(4) motion to challenge whether a party had the

authority to voluntarily dismiss an action without prejudice.

Bradley v. Bradley, 206 N.C. App. 249, 252, 254, 697 S.E.2d

422, 426 (2010).

9. In Bradley, the Court wrote: A voluntary dismissal

can be considered a proceeding allowing relief under Rule

60(b). Id; (quoting Carter v. Clowers, 102 N.C. App. 247,

252-53, 401 S.E.2d 662, 665 (1991). Rule 60(b)(4) allows for

relief from a judgment, order, or proceeding when it is void.

Id. In the context of Rule 60(b)(4), a judgment, order, or

proceeding is void only when the issuing court has no

jurisdiction over the parties or subject matter in question or

has no authority to render the judgment entered. Id; (quoting

Chandak v. Electronic Interconnect Corp., 144 N.C. App. 258,

262, 550 S.E.2d 25, 28 (2001)) (emphasis added).

10. In order for the trial court to properly vacate the

Trustees voluntary dismissal pursuant to Rule 60(b)(4), the

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Trustee cannot have had the authority to voluntary dismiss

his. . . . .claim[s] for relief. Id. Because the Trustee

lacked the authority to dismiss this action after the clerk

had entered her decision, this Court is empowered to vacate

that dismissal as void pursuant to Rule 60(b)(4) of the North

Carolina Rules of Civil Procedure.

11. The purpose of Rule 60(b) is to strike a proper

balance between the conflicting principles of finality and

relief from unjust judgments, orders or proceedings. Carter at

254, 401 S.E.2d at 666. Procedural actions that prevent

litigants from having the opportunity to dispose of their case

on the merits are not favored. Id.

12. Although Rule 60(b) contains the requirement that

all motions made pursuant thereto be made within a reasonable

time, and for reasons (1), (2) and (3) not more than one year

after the judgment, order, or proceeding was entered or taken.

The requirement is not enforceable with respect to motions

made pursuant to Rule 60(b)(4), because a void judgment, order

or proceeding is a legal nullity which may be attacked at any

time. Allred v. Tucci, 85 N.C. App. 138, 141, 354 S.E.2d 291,

294 (1987).

WHEREFORE, Movant moves the Court as follows:

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1. For an Order, as contemplated under Rule 60 of the

North Carolina Rules of Civil Procedure, to declare that

voluntary dismissal filed on ___ __, 0000 to be void;

2. For an Order, alternatively, denying the Trustees

motion to set aside the Clerks order;

3. For an Order, permitting Movant to proceed with her

appeal of the Clerks order entered on ___ __, 0000;

4. For an Order, awarding Movant reasonable attorney

fees and cost related to this matter; and

5. For such other and further relief as the Court may

seem just and proper.

Respectfully submitted this the 8th day of July, 2013.

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