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

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

Sweet Potatoes Not So Sweet After All - Growers Not Exempt from PACA

​On August 18, 2015, the United States Court of Appeals for the Fourth Circuit affirmed decisions from the United States District Court and the United States Bankruptcy Court for the Eastern District of North Carolina dismissing Perishable Agricultu ...[Read more]

Published: 8/18/2015 | 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

Short-Pay Statements Under North Carolina Law

Short-Pay Statements Under North Carolina Law North Carolina General Statute Sec. 45-36.7 outlines the steps necessary for a borrower to request a short-pay statement when all or a portion of the collateral is to be released without paying the full ...[Read more]

Published: 7/30/2015 | 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

Waiver of Defenses: Protecting Lenders from ECOA Claims

After the real estate market crash, creative plaintiff’s attorneys in eastern North Carolina were quick to turn to the Equal Credit Opportunity Act (ECOA),  15 U.S.C. § 1691 et seq., and its implementing regulations, 12 C.F.R. §202.1 et seq. (common ...[Read more]

Published: 3/23/2015 | 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
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