dissenting.
For the reasons set forth herein, I must respectfully dissent.
The majority opinion addresses two lines of conflicting authority from this Court regarding the discretion, if any, the clerk of court and the superior court possess to approve or deny the attorney’s fees charged by trustees in a foreclosure proceeding. In re Foreclosure of Newcomb, 112 N.C. App. 67, 434 S.E.2d 648 (1993) represents the first line of cases; and In re Foreclosure of Ferrell Brothers Farms, 118 N.C. App. 458, 455 S.E.2d 676 (1995), and In re Foreclosure of Webber, 148 N.C. App. 158, 557 S.E.2d 645 (2001), represent the second line of cases.
In Newcomb, this Court addresses the propriety of the trial court’s order approving a request by the attorney-trustee for attorney’s fees as a “fair and proper amount.” 112 N.C. App. at 70, 434 S.E.2d at 650. The Newcomb Court noted that N.C. Gen. Stat. § 32-51 provides for “counsel fees,” in addition to the compensation to be paid to an attorney for his services as a trustee when an attorney-trustee provides services during the foreclosure that would justify the *222retention of counsel. Id. at 72, 434 S.E.2d at 651 (quoting N.C. Gen. Stat. § 32-51 (1991) (repealed 2005)).
I agree with the majority that the language of the statute supporting the decision in Newcomb, N.C. Gen. Stat. § 32-51, is substantially the same as the presently enacted section 32-61, which permits counsel fees for attorneys serving as fiduciaries. N.C. Gen. Stat. § 32-61 (2009). I further agree that Newcomb recognizes that the clerk of superior court and the superior court have discretion in determining the reasonableness of an attorney-trustee’s request for disbursement of fees to himself. I cannot agree, however, that Newcomb limits the clerk’s or the trial court’s discretion in determining “reasonable attorneys’ fees” to only those situations in which the foreclosure was arrested by payment of the underlying debt pursuant to N.C. Gen. Stat. § 45-21.20 (2009).
Longstanding North Carolina precedent permits the award of attorneys’ fees only when the fees are provided for in an instrument and allowed by statute.
As was stated by Chief Judge (now Justice) Brock in Supply, Inc. v. Allen, 30 N.C. App. 272, 276, 227 S.E.2d 120, 123 (1976), “[t]he jurisprudence of North Carolina traditionally has frowned upon contractual obligations for attorney’s fees as part of the costs of an action.” Certainly in the absence of any contractual agreement allocating the costs of future litigation, it is well established that the non-allowance of counsel fees has prevailed as the policy of this state at least since 1879. See Trust Co. v. Schneider, 235 N.C. 446, 70 S.E.2d 578 (1952); Parker v. Realty Co., 195 N.C. 644, 143 S.E. 254 (1928). Thus the general rule has long obtained that a successful litigant may not recover attorneys’ fees, whether as costs or as an item of damages, unless such a recovery is expressly authorized by statute. Hicks v. Albertson, 284 N.C. 236, 200 S.E.2d 40 (1972). Even in the face of a carefully drafted contractual provision indemnifying a party for such attorneys’ fees as may be necessitated by a successful action on the contract itself, our courts have consistently refused to sustain such an award absent statutory authority therefor. Howell v. Roberson, 197 N.C. 572, 150 S.E. 32 (1929); Tinsley v. Hoskins, 111 N.C. 340, 16 S.E. 325 (1892).
Stillwell Enterprises v. Interstate Equipment Co., 300 N.C. 286, 289, 266 S.E.2d 812, 814-15 (1980).
*223In the foreclosure proceeding underlying the instant case, Volger Realtor (hereinafter “debtor”) signed a promissory note dated 26 June 1997 in the principal amount of $250,000 to accrue interest at the rate of 9% per annum and payable in 179 equal monthly installments of $2,011.56. The promissory note’s language provides for receipt of attorneys’ fees as follows:
Upon default the holder of this Note may employ an attorney to enforce the holder’s rights and remedies and the . . . endorsers of this Note hereby agree to pay to the holder reasonable attorneys’ fees not exceeding a sum equal to fifteen percent (15%) of the outstanding balance owing on said Note, plus all other reasonable expenses incurred by the holder in exercising any of the holder’s rights and remedies upon default.
(Emphasis added.) The note further provides, “ [tjhis note is to be governed and construed in accordance with the laws of the State of North Carolina.”
The debtor’s obligation was secured by a “North Carolina Deed of Trust” form prepared by the N.C. Bar Association. This document provides the following language:
If, however, there shall be any default (a) in the payment of any sums due under the Note, this Deed of Trust or any other instrument securing the Note and such default is not cured within ten (10) days from the due date, or (b) if there shall be default in any of the other covenants, terms or conditions of the Note secured hereby . . . and such default is not cured within fifteen (15) days after written notice, then in any of such events, without further notice, it shall be lawful for and the duty of the Trustee, upon request of the Beneficiary, to sell the land herein conveyed at public auction for cash ....
The proceeds of the Sale shall after the Trustee retains his commission, together with reasonable attorneys fees incurred by the trustee in such proceeding, be applied to the costs of sale, including, but not limited to, costs of collection, taxes, assessments, costs of recording, service fees and incidental expenditures, the amount due on the Note hereby secured and advancements and other sums expended by the Beneficiary according to the provisions hereof and otherwise required by the then existing law relating to foreclosures.
*224(Emphasis added.) These are all the relevant terms of the instruments which govern the award of a trustee’s commissions and a payment of attorneys’ fees in this case.
A trustee in a foreclosure proceeding may or may not require the services of an attorney. When a non-attorney trustee employs an attorney, one assumes that the trustee examines the fee to be charged in discharge of his fiduciary duty to act as a reasonable person would act in conducting his own affairs and insure that the attorneys’ fees charged are reasonable. When a trustee also serves as the attorney for the foreclosure proceeding, however, self-dealing makes the exercise of fiduciary duty problematic for the trustee and the determination of a “reasonable”-fee under N.C. Gen. Stat. § 32-61 is given to the clerk.
For example, the trustee in prosecuting this foreclosure proceeding acted in conformance with North Carolina law provided in N.C. Gen. Stat. § 6-21.2 (2009) and § 32-61 that enables him to receive “reasonable attorneys’ fees” under an instrument of indebtedness. For example, his affidavit contains the following language:
In my experience, a reasonable attorney’s fee for the attorney representing the trustee in a foreclosure special proceeding of fifteen percent (15%) of the outstanding balance due on a note immediately prior to the filing of a foreclosure special proceeding is a fair and reasonable fee and is supported by the statutory and case law of North Carolina.
In addition, the trustee filed with the clerk of court an itemization of his time spent in this matter as trustee and as attorney for the trustee and copies of the documents he prepared. These documents were submitted along with his motion to audit and approve his final account. An examination of the record reveals that the trustee in this matter submitted a factual basis for an award of attorneys’ fees using the proper procedure, which I would hold needs to be utilized in all foreclosure proceedings. In my opinion, this action judicially estops the appellant from submitting a different argument on appeal than the argument he put forth in the underlying proceeding. Even if estoppel is not applicable here, it appears this appeal is not based on a difference in law as to what procedure should be used to determine a reasonable fee, but instead is based on a disappointment in the results of the procedure utilized.
The note and deed of trust should be read in pari materia to allow an attorney, or a trustee collecting on the note for the holder, to *225collect reasonable counsel fees “not to exceed fifteen percent” of the note. When an instrument does not provide for calculation of the amount of “reasonable” attorneys’ fees, as in the present case, our courts have held such calculation to be a proper subject for judicial determination. “When the court determines that an award of attorneys’ fees is appropriate, but such amount is not fixed by statute or otherwise, the amount ordinarily lies with the discretion of the court.” Coastal Production Credit Ass’n v. Goodson Farms, Inc., 70 N.C. App. 221, 319 S.E.2d 650 (1984) (citing Hill v. Jones, 26 N.C. App. 168, 170, 215 S.E.2d 168, 170 (1975)).
The plain language of the deed of trust, as well as North Carolina law, imposes a duty to use diligence and fairness in conducting the sale and receiving and disbursing the proceeds of the sale. Sloop v. London, 27 N.C. App. 516, 219 S.E.2d 502 (1975). Our Supreme Court has described the duty of the trustee as follows:
The relaxation of the strict rules equity imposes upon the mortgagor in relation to deeds of trust is predicated upon the theory that the trustee is a disinterested third party acting as agent both of the debtor and of the creditor, thus removing any opportunity for oppression by the creditor and assuring fair treatment to the debtor. He is trustee for both debtor and creditor with respect to the property conveyed. A creditor can exercise no power over his debtor with respect to such property because of its conveyance to the trustee with power to sell upon default of the debtor.
The trustee for sale is bound by his office to bring the estate to a sale under every possible advantage to the debtor as well as to the creditor and he is bound to use not only good faith but also every requisite degree of diligence in conducting the sale and to attend equally to the interest of the debtor and the creditor alike, apprising both of the intention of selling, that each may take the means to procure an advantageous sale. He is charged with the duty of fidelity as well as impartiality, of good faith and every requisite degree of diligence, of making due advertisement and giving due notice. Upon default his duties are rendered responsible, critical and active and he is required to act discreetly, as well as judiciously, in making the best use of the security for the protection of the beneficiaries.
Mills v. Building & Loan Ass’n, 216 N.C. 664, 669, 6 S.E.2d 549, 552 (1940) (citations omitted).
*226Given this theory of foreclosure law, it is clear, whether the foreclosure is complete or partial, that a trustee is a fiduciary within the context of N.C. Gen. Stat. § 32-61. In this context, a debtor or his assignee, such as a second mortgagee whose pecuniary interest in the proceeds created by the sale (the in rem estate), adversely affected by a trustee’s discretion, has the right to petition the clerk for relief. In this case, the original debtor’s liability for funds due the second mortgagee is adversely affected where the trustee reduces the amount of proceeds available to the second mortgagor. I would hold a successor in interest to the debtor has sufficient standing to raise this issue before the clerk.
Newcomb has not been directly overruled by another panel of this Court. Our panel lacks the ability to overrule Newcomb as well. The two decisions cited by the majority in support of its opinion, Ferrell and Webber, postdate Newcomb without expressly overruling or modifying its holding. Newcomb ratified a well-established procedure in clerks’ offices across the state. Until Newcomb’s rationale has been overruled or affirmed by our Supreme Court, the effect of the majority’s decision places in doubt a practice which is efficient and beneficial and does so without any compensating benefit.
The remedy that Webber suggests, that a person injured by a trustee’s decision may bring a suit for breach of fiduciary duty, seems to me to be a problematic solution for both the fiduciary and the debtor. Webber, 148 N.C. App. at 162-63, 577 S.E.2d at 648. Foreclosure procedures are intended to be summary and expeditious. Webber's proposed solution unnecessarily lengthens the dispute and would be estopped by a clerk’s approval of fees charged.
The prompt judicial review of attorneys’ fees is routine in probate and special proceedings matters and is a procedure familiar to both clerks and the practicing bar. For example, the appellee in this case prepared and filed his petition containing sufficient information with which a clerk or judge could ascertain a “reasonable fee.”
A trustee’s commission fee is predetermined by the instrument or by statute. Permitting a trustee to set his own attorney’s fees, however, when the fee is not established by the instruments is inherently a conflict of interest. For example, a trustee is prohibited from jointly representing himself and a noteholder under the North Carolina Rules of Professional Responsibility. See North Carolina Revised Rules of Professional Conduct, Rule 1.7 (2009). When a trustee self-deals with regard to fees he is charging a beneficiary, it would be dif*227ficult, if not impossible, for him to subsequently show he acted openly, honestly, and fairly taking no advantage of his beneficiary. On the other hand, when a fiduciary seeks judicial approval for his “reasonable” fees in advance, any interested party may object openly and have the matter promptly resolved by a neutral decision maker. This latter procedure would meet the transparency standard required for trustees establishing their own compensation from funds which are under their supervision.
As neither our General Assembly nor our Supreme Court has resolved the conflict presented by Newcomb, Ferrell, and Webber, the real property practitioner will continue to have difficulty applying the law regarding this matter of significant public interest.
Our statutes and case law hold that trustees are fiduciaries. See N.C. Gen. Stat. § 32-61; Sloop, 27 N.C. App. 516, 219 S.E.2d 502. Clerks are allowed to use discretion in the audit procedures contained in N.C. Gen. Stat. § 45-21.33 and § 32-61 for review of “reasonable” attorneys’ fees when the instruments do not provide a method of calculating those sums and when a trustee is also serving as his own attorney.