concurring in part and dissenting in part.
I fully concur in issue II of the majority opinion upholding the trial court’s dismissal of plaintiffs non-client third-party malpractice claim; however, I dissent as to the majority’s holding regarding plaintiff’s ability to collaterally attack an order that he claims was void for lack of notice.
Defendants initially argue in their briefs to this Court that plaintiff’s complaint must fail in its entirety because plaintiff’s claims turn on the procedures involved in the sheriff’s sale and the setting aside of the clerk’s confirmation order and that this order cannot be collaterally attacked. In support of their position, defendants point to Questor Corp. v. DuBose, 46 N.C. App. 612, 614, 265 S.E.2d 501, 503 (1980), in which this Court held the plaintiffs could not collaterally attack an execution sale and the clerk’s subsequent judgment of confirmation because the only avenue available to the plaintiffs was by either motion in the cause or direct appeal. For the reasons set out below, I believe Questor is distinguishable and does not control this case. .
A collateral attack is one in which a plaintiff is not entitled to the relief demanded in the complaint unless the judgment in another action is found to be invalid. Watson v. Watson, 49 N.C. App. 58, 61, 270 S.E.2d 542, 544 (1980). “A void judgment may be attacked directly or collaterally by any party adversely affected thereby.” Edwards v. Brown’s Cabinets, 63 N.C. App. 524, 529, 305 S.E.2d 765, 769 (1983). Hence, a “collateral attack in an independent or subsequent action is a permissible means of seeking relief from a judgment or order which is void on its face for lack of jurisdiction.” Watson v. Ben Griffin Realty and Auction, 128 N.C. App. 61, 63, 493 S.E.2d 331, 333 (1997); see Stroupe v. Stroupe, 301 N.C. 656, 661, 273 S.E.2d 434, 438 (1981). If the judgment, however, is merely irregular, i.e. voidable, it can only be attacked by a direct appeal or motion in the cause. See Daniels v. Montgomery Mut. Ins. Co., 320 N.C. 669, 360 S.E.2d 772 (1987); Edwards, 63 N.C. App. at 529-30, 305 S.E.2d at 769 (“[w]here the defect complained of is contrary to the course and practice of the court but is non-jurisdictional, the judgment is irregular and is voidable, but not void[, and s]uch a judgment is binding on the parties until corrected or vacated ... by a motion in the cause”).
*407The plaintiffs in Questor sought to have the execution sale set aside because the defendants “did not pay their bid in cash.” Questor, 46 N.C. App. at 614, 265 S.E.2d at 503. This alleged defect is not jurisdictional in nature. See Edwards, 63 N.C. App. at 529-30, 305 S.E.2d at 769. As the Questor confirmation order was therefore voidable at best, this Court properly concluded the plaintiffs were barred from collaterally attacking it. On the other hand, plaintiff in the case sub judice based his complaint in part on the absence of any notice to him of the sheriffs sale. Plaintiff states in his complaint that he never received such notice, and the record contains an affidavit by the Clerk of Superior Court indicating a lack of notice to plaintiff. “[0]ur [cjourts have held that ‘[n]otice and an opportunity to be heard are prerequisites of jurisdiction . . . , and jurisdiction is a prerequisite of a valid judgment.’ ” Inland Greens HOA v. Dallas Harris Real Estate-Constr., 127 N.C. App. 610, 613, 492 S.E.2d 359, 361 (1997) (quoting Commissioners of Roxboro v. Bumpass, 233 N.C. 190, 195, 63 S.E.2d 144, 147 (1951)). Consequently, as the clerk’s confirmation order would be void absent notice to plaintiff, plaintiff was entitled to attack the order either directly, via appeal or motion in the cause, or, as he chose, indirectly, via collateral attack. See Stroupe, 301 N.C. at 661, 273 S.E.2d at 438; Edwards, 63 N.C. App. at 529-30, 305 S.E.2d at 769.
The majority opinion argues that because the district court had both personal and subject matter jurisdiction to enter the initial judgment in favor of N.C. Forest in 89 CVD 1966 and the clerk of the superior court possesses the general statutory authority to enter a confirmation of sale, the confirmation order in this case cannot be collaterally attacked as void. This argument ignores that due process requires the issuance of a notice of sale to a judgment debtor before his property can be offered for sale. See N.C.G.S. § 1-339.54 (2001). Without this procedural step, the clerk did not have the authority in this case to issue a confirmation order consummating the sale. See N.C.G.S. § 1-339.67 (2001). I would further note that the factual bases of the cases cited by the majority are distinguishable, see Henderson County v. Osteen, 292 N.C. 692, 702-03, 235 S.E.2d 166, 173 (1977) (where the debtor did have notice, and the court consequently acquired jurisdiction, but the debtor subsequently died and the administrator of the estate did not receive additional notice of the tax sale); Edwards, 63 N.C. App. at 527-28, 305 S.E.2d at 768 (where the reason for attacking the judgment was on voidable grounds), and the holdings in Williams v. Dunn, 163 N.C. 206, 212, 79 S.E. 512, 514 (1913), Bank v. Gardner, 218 N.C. 584, 586, 11 S.E.2d 872, 872 (1940), *408and Walston v. Applewhite & Co., 237 N.C. 419, 424, 75 S.E.2d 138, 142 (1953) are based on an unsubstantiated statement that the notice requirement in section 1-339.54 is merely directory and not mandatory. Such a premise, however, is contrary to the express language of the statute. See N.C.G.S. § 1-339.54 (mandating notice to judgment debtor).
Thus, to the extent the trial court’s order dismissing plaintiffs action was based on plaintiffs engagement of a collateral attack on the confirmation order, it should be reversed.