Court of Appeals Affirms Payment of Upset Bid Amount to Foreclosing Lender

​Recently the North Carolina Court of Appeals in In re:  Ballard (N.C. Ct. App. COA15-475, March 15, 2016) held that a foreclosing lender in North Carolina was not under any duty to bid the same amount at a resale of foreclosed property as it did at ...[Read more]

Published: 8/5/2016 | 0  Comments | 0  Links to this post

Foreclosure Protection for Servicemembers Extended by Congress

In 2008, Congress passed legislation which extended the protection from foreclosure actions for active duty servicemembers up to 9 months after the end of the period of military service.  In 2012, Congress extended that time to 12 months after the e ...[Read more]

Published: 4/27/2016 | 0  Comments | 0  Links to this post

North Carolina General Assembly Adopts Protection for Tenants in Foreclosure Actions.

Session Law 2015-178 reinstates many of the provisions of the Federal “Protecting Tenants in foreclosure act of 2009” which expired December 31, 2014.The NC legislation is applicable to residential property containing less than 15 units, including s ...[Read more]

Published: 10/16/2015 | 0  Comments | 0  Links to this post

North Carolina's Anti-Deficiency Statute for Seller Financed Real Estate

The North Carolina General Statutes prohibit a creditor in a seller-financed purchase money real estate transaction (where the seller of the land and the creditor providing financing for the sale are the same person) from obtaining a judgment agains ...[Read more]

Published: 10/1/2015 | 0  Comments | 0  Links to this post

Determination of Clerk at Foreclosure Hearing is Binding in Subsequent Litigation

​In Funderburk v. Chase, COA14-1258 (N.C. Ct. App. 2014), the North Carolina Court of Appeals held that the issues decided by the Clerk of Court are binding in subsequent litigation involving the same parties on the same loan (such as a counterclaim ...[Read more]

Published: 9/9/2015 | 0  Comments | 0  Links to this post

When a Driver’s License Is More Than a Bad Picture: Is Your UCC Financing Statement Still Effective?

​​UCC Financing Statements Must Contain the Debtor’s Correct Name “[A] financing statement is sufficient only if it [among other things] . . . provides the name of the debtor. “ N.C. Gen. Stat. § 25-9-502(a)(1) (emphasis added). Prior to July 1, 20 ...[Read more]

Published: 8/12/2015 | 0  Comments | 0  Links to this post

COA Concludes Successive Defaults are Distinct for Purposes of Two Dismissal Rule in Foreclosures

In an opinion filed on June 2, 2015, the Court of Appeals considered application of the so-called “two dismissal rule” under Rule 41(a) of the Rules of Civil Procedure to power of sale foreclosure proceedings.  Specifically, the Court considered whe ...[Read more]

Published: 6/15/2015 | 0  Comments | 0  Links to this post

Court of Appeals Confirms Lack of Jurisdiction to Grant Injunctive Relief in Foreclosure

​The Court of Appeals has issued another opinion in the long line of borrower foreclosure appeals defeated by subject matter jurisdiction.  In In re Foster (No. COA14-108) issued on February 17, the Court affirmed the trial court’s ruling that a bor ...[Read more]

Published: 2/27/2015 | 0  Comments | 0  Links to this post

Court of Appeals Changes Course on Fair Market Value Defense in Deficiency Actions

​In BB&T v. Smith et al. (COA14-554) issued on February 17, the Court of Appeals held that the so-called “fair market value defense” in lender deficiency actions applies not only to owner-obligors, but also to guarantors.  This opinion represent ...[Read more]

Published: 2/18/2015 | 0  Comments | 0  Links to this post

Read The Fine Print

​Read The Fine Print The wife executed a durable Power of Attorney appointing her husband as attorney in fact.  The Power of Attorney contained a restriction which stated that the powers “shall not be exercised until a physician has certified that ...[Read more]

Published: 2/11/2015 | 0  Comments | 0  Links to this post
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