UNPUBLISHED OPINION

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

INMAN, Judge.

M.G. Ferguson ("appellant"), as trustee for the Candy Tuft Trust, which is the current owner of the parcel of real property in Weaverville, N.C. ("the property") at issue in this case, appeals from an order authorizing foreclosure of the property under a power of sale. On appeal, appellant contends that: (1) the trial court erred by concluding that the substitute trustee appointed by noteholder Wells Fargo Bank, N.A. ("Wells Fargo") had the right to foreclose under a power of sale in the deed of trust; (2) the foreclosure proceeding was improper because it was initiated by a biased trustee; and (3) the trial court failed to articulate specific findings of fact and conclusions of law that would allow for meaningful appellate review.

After careful review, we affirm the trial court's order.

Background

In December 2007, Victoria and Gordon Clark executed a promissory note and a deed of trust with World Savings Bank, FSB to secure a loan for the purchase of the property. On 1 November 2009, World Savings Bank merged into Wells Fargo, causing Wells Fargo to become the holder of the promissory note.

In September 2011, the Clarks stopped making payments on their mortgage. They filed for bankruptcy on 23 November 2011. Wells Fargo appointed Grady Ingle ("Ingle") and Elizabeth Ells as substitute trustees to initiate foreclosure proceedings under the power of sale clause in the deed of trust. This clause provided that the borrowers "irrevocably grant and convey the Property to the Trustee . . . with a power of sale[.]" In December 2012, the Clarks conveyed the property to the Candy Tuft Trust.

In the initial foreclosure proceeding, the Assistant Clerk of Superior Court in Buncombe County entered an order denying the substitute trustees' attempt to foreclose on the property. The clerk's order concluded that Wells Fargo had not sufficiently proven that it was the holder of the promissory note. The substitute trustees appealed this ruling to Superior Court. After notice of appeal was filed, but before the de novo hearing in Superior Court, Wells Fargo appointed a new substitute trustee — Cornish Law, PLLC.

At the de novo hearing, Wells Fargo was represented by another attorney from Grady Ingle's law firm; Cornish Law, PLLC made no appearance. After hearing arguments from Wells Fargo and appellant, the trial court entered an order allowing the sale to proceed. It concluded that although the deed of trust contained some provisions that were "not in accordance with the usual practices for deeds of trust in North Carolina," it met all requirements for deeds of trust under North Carolina law and contained an explicitly stated power of sale. Appellant filed timely notice of appeal from the trial court's order.

I. Power of Sale

Appellant first contends that the deed of trust is ambiguous, and because it does not clearly state whether the trustee or lender has the right to initiate foreclosure under a power of sale, neither may do so. We disagree.

"The applicable standard of review on appeal where, as here, the trial court sits without a jury, is whether competent evidence exists to support the trial court's findings of fact and whether the conclusions reached were proper in light of the findings." In re Foreclosure of Azalea Garden Bd. & Care, Inc., 140 N.C. App. 45, 50, 535 S.E.2d 388, 392 (2000). "Competent evidence is evidence that a reasonable mind might accept as adequate to support the finding." Eley v. Mid/East Acceptance Corp. of N.C., 171 N.C. App. 368, 369, 614 S.E.2d 555, 558 (2005) (quotation marks omitted). We review the trial court's conclusions of law de novo. In re Foreclosure of Real Prop. Under Deed of Trust from Gray, ___ N.C. App. ___, ___, 741 S.E.2d 888, 889 (2013).

"[P]owers of sale are contractual, and ordinary rules of contract govern their interpretation." In re Foreclosure of Sutton Investments, Inc., 46 N.C. App. 654, 659, 266 S.E.2d 686, 689 (1980) (citation omitted). "Whenever a court is called upon to interpret a contract its primary purpose is to ascertain the intention of the parties at the moment of its execution." Lane v. Scarborough, 284 N.C. 407, 409-10, 200 S.E.2d 622, 624 (1973). "If the language of a contract is clear and only one reasonable interpretation exists, the courts must enforce the contract as written and cannot, under the guise of interpretation, rewrite the contract or impose [terms] on the parties not bargained for and found within the contract." Crider v. Jones Island Club, Inc., 147 N.C. App. 262, 266, 554 S.E.2d 863, 866 (2001) (alteration in original) (quotation marks omitted). Ambiguity exists where the contract's language is reasonably susceptible to either of the interpretations asserted by the parties. Glover v. First Union Nat'l Bank, 109 N.C. App. 451, 456, 428 S.E.2d 206, 209 (1993).

We are not persuaded by appellant's argument that the power of sale in this case is ambiguous. The following language is included under the provision of the deed of trust titled "Borrower's Transfer of Rights in the Property":

Appellant concedes in his brief that this language "can be interpreted to grant the power of sale to the trustee." Indeed, the plain and unambiguous statement that the borrowers "grant and convey the Property to the Trustee . . . with a power of sale" is not reasonably susceptible to multiple interpretations and fully supports the trial court's conclusion that the power of sale clause was legally effective as a reflection of the parties' intention to give the power of sale to the trustee. See Lane, 284 N.C. at 409-10, 200 S.E.2d at 624. This intention is further manifested in Paragraph 31 of the deed of trust, which provides that "[t]he Trustee shall be entitled to a commission of five percent (5%) of the gross proceeds of sale upon completed foreclosure under this Security Instrument. In the event foreclosure is commenced but not completed, Borrower shall pay all expenses incurred by Trustee and a partial commission based on the stage at which the foreclosure proceedings were terminated."

However, appellant contends that other provisions in the deed of trust, when read together, render the power of sale ambiguous. Specifically, appellant points to the following clauses which he argues muddy the interpretation of the deed of trust: (1) that the lender "shall acquire and sell the property"; (2) that the lender shall "take action" to have the property sold; and (3) the lender shall distribute the proceeds from the sale. While it is true that the various terms of a contract are to be harmoniously construed, and if possible, every word and provision should be given effect, Singleton v. Haywood Elec. Membership Corp., 357 N.C. 623, 629, 588 S.E.2d 871, 875 (2003), none of these provisions serve to frustrate the clear meaning of the explicitly stated power of sale.

The first two phrases work in harmony to describe the process by which the lender would direct the trustee to initiate the sale of the property. Under North Carolina law, a trustee "has no authority sua sponte to sell or demand possession or otherwise proceed to collect the debt. He can only act when authorized by the creditor." Gregg v. Williamson, 246 N.C. 356, 360, 98 S.E.2d 481, 485 (1957). The provision in question begins, "If, under paragraph 28, Lender shall acquire or sell the Property, Lender, prior to acquisition or sale of the Property, shall apply any Funds held by Lender at the time of acquisition or sale as a credit against the sums secured by this Security Instrument." Under Paragraph 28, the lender "may take action to have the Property sold under any applicable law." The phrase "may take action to have the Property sold" is consistent with the concept that Wells Fargo must authorize the trustee, which unambiguously holds the power of sale, to initiate the foreclosure proceedings. Nothing in these provisions allows for the lender to hold the power of sale, and therefore, these terms do not conflict with the explicitly stated power of sale granted to the trustee under section II of the deed of trust.

We also affirm the trial court's conclusion of law that the "irregularities" in the deed of trust do not render the power of sale unenforceable. Under the deed of trust, the "Lender will apply the proceeds from the sale of the Property" in a specified order. This provision appears to conflict with N.C. Gen. Stat. 45-21.31 (2013), which requires the person making the sale to apply the proceeds. Because the person with the power of sale under the deed of trust is the trustee, not the lender, section 45-21.31 would require the trustee to apply the proceeds of the sale, and the application of proceeds clause in the deed of trust would have no effect.1 This apparent conflict, however, is not fatal to the enforceability of the power of sale. Paragraph 15 of the deed of trust contains a severability clause, which provides that any terms of the contract to be found unenforceable shall not disturb the enforceability of other independent provisions. Our Courts have recognized the validity of severable contracts where the document is "in its nature and purpose susceptible of division and apportionment, having two or more parts, in respect to matters and things contemplated and embraced by it, not necessarily dependent upon each other, nor is it intended by the parties that they shall be." Kornegay v. Aspen Asset Grp., LLC, 204 N.C. App. 213, 226, 693 S.E.2d 723, 734 (2010) (quotation marks omitted). The power of sale and application of proceeds provisions, although related, are not interdependent. In the former, the borrowers are vesting the trustee with the power to initiate a sale, and in the latter, the entity that carries out the sale promises to apply proceeds in a certain order. Because these promises are not interdependent, they are severable, and the possibility that the application of proceeds clause is unenforceable does not require the court to throw out the explicit and unambiguous power of sale. See, e.g., id. at 227, 693 S.E.2d at 734; Turner v. Atl. Mortgage & Inv. Co., 32 N.C. App. 565, 567-68, 233 S.E.2d 80, 82 (1977).

Based on the foregoing, we affirm the trial court's conclusion of law that the deed of trust explicitly vests the power of sale with the trustee, not the lender, and that the deed of trust validly authorizes the trustee to carry out the sale of the property.

II. Trustee Bias

Appellant next contends that the foreclosure proceeding was improperly conducted because the trustee was biased in favor of Wells Fargo. However, appellant did not present this argument to the trial court and is raising it for the first time on appeal. Rule 10(a)(1) of the North Carolina Rules of Appellate Procedure provides that "[i]n order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make[.]" "[A] party's failure to properly preserve an issue for appellate review ordinarily justifies the appellate court's refusal to consider the issue on appeal." Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 195-96, 657 S.E.2d 361, 364 (2008). Appellant has not requested that we exercise our authority under Rule 2 to reach this issue, and we decline to do so on our own motion. See Steingress v. Steingress, 350 N.C. 64, 66, 511 S.E.2d 298, 299-300 (1999) (noting that Rule 2 should only be used in "exceptional circumstances"). Accordingly, we dismiss this argument for appellant's failure to preserve it for appellate review.

III. Sufficiency of the Order

Appellant's final argument is that the trial court's order lacks sufficient findings of fact and conclusions of law to allow meaningful appellate review. We disagree. The trial court's order contains ten findings of fact and five conclusions of law, all of which are detailed, thorough, and supported by the record and North Carolina law. Contrary to appellant's contention, the trial court was not required to list every term in the deed of trust that it found to be "irregular." See Kelly v. Kelly, ___ N.C. App. ___, ___, 747 S.E.2d 268, 276 (2013) ("[B]revity is not necessarily a bad thing; . . . The court is not required to find all facts supported by the evidence, but only sufficient material facts to support the judgment." (quotation marks omitted)). The irregular provision that it did identify — the assignment of proceeds clause — was relevant to its analysis regarding severability and the interpretation of the power of sale. Our review of the issues properly before us on appeal was not impeded by any lack of additional findings or conclusions. Accordingly, appellant's argument as to this issue is overruled.

Conclusion

For the foregoing reasons, we affirm the trial court's order allowing foreclosure to proceed.

AFFIRMED.

Judges ELMORE and GEER concur.

Report per Rule 30(e).