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Already Litigated: Another Failed Res Judicata Challenge to a North Carolina Foreclosure Special Proceeding

Earlier this month, the North Carolina Court of Appeals rejected a challenge to a foreclosure special proceeding based on res judicata in Roberson v. Tr. Services of Carolina, LLC, No. COA17-1152. In this decision, the Court of Appeals reaffirmed the seminal 2016 Supreme Court decision, Matter of Lucks, limiting the applicability of the doctrine in the context of non-judicial foreclosure.

What Buyers and Sellers Need to Know About Underground Storage Tanks (USTs) in North Carolina

Chances are if a home was built before the mid-1960s to late 1970s in North Carolina, it used oil heat as fuel for the furnace and stored the oil in an underground storage tank (“UST”). Luckily, most oil heating systems have been replaced with newer systems fueled by electricity or natural gas. Although heating systems have changed, many homes still contain USTs buried underground that may still contain oil. Over time, USTs can corrode leading to oil leaks, contaminated soil and contaminated groundwater.

Lenders: What’s the big deal, it’s just a power of attorney?

North Carolina recently passed a new NC Uniform Power of Attorney Act, which replaces the old Power of Attorney Chapter 32A and becomes effective January 1, 2018. The Act changes a number of provisions including a new short form power of attorney and a new limited power of attorney for real property. Other provisions affected include agent certification, durability of the document, gifting powers, self-dealing powers, co-agents and how to handle power of attorneys executed out of state. As a result, NC lenders will begin to see new power of attorney forms in 2018.

Powers of Attorney – The Dos and Don’ts

If you think back to the movie Rocky V, Rocky Balboa executed a “power of attorney” in favor of an individual he believed he trusted. The individual who received Rocky’s power of attorney (the “Agent”) proceeded to squander all of Rocky’s money leaving him broke and forced to move out of his mansion and back to his old apartment. One might ask, “How is that even possible?” The answer comes in the form of a Durable Power of Attorney.

The Secure, PaperLess Workflow: ALTA Compliance

Pursuant to the Consumer Financial Protection Bureau (CFPB) rules implemented on October 3, 2015, real estate attorneys should obtain certification as being ALTA (American Land Title Association) Best Practices compliant and should maintain and enforce written policies and procedures to protect client privacy. Maintaining clean desk and document storage policies has resulted in real estate firms across the state embracing paperless environments. Managing and storing documents electronically helps to mitigate security risks and adhere to CFPB requirements.

Greenway Projects and Community Benefits

A “Greenway” is usually defined and promoted as an area or strip of land which is preserved for recreational use or environmental protection – though in most cases other benefits are publicized, as well.  Typically, Greenway land consists of underdeveloped or vacant properties which are acquired by municipal or other government entities through condemnation proceedings or private donation.  Greenways usually connect separate city neighborhoods through a series of pedestrian walkways and trails.     

Family Care Homes in NC: Is Your HOA Against Them?

  • Recently, a neighborhood HOA approached me with a question regarding family care homes in North Carolina. The HOA contained covenants and restrictions which limited the use of homes in the neighborhood to single family residences only.   The question was whether an owner in the neighborhood could establish a family care home based on the neighborhood restrictions. Despite the restrictions written in the HOA covenants, the answer is yes, the owner can establish a family care home.

Landlocked in NC: 4 Possible Easements Solutions

Finding out your property is landlocked with no private or public access to a road is not news that any landowner in North Carolina wants to hear. If you have friendly neighbors that are willing to grant you an easement for access to a road, your problem is solved. However, difficulties may arise and litigation may be triggered when neighbors are not getting along and are unwilling to provide access to the landlocked parcel. With the help of an attorney, there are several methods to enable legal access to his or her property by an easement. 

Can a Chain of Emails Create a Binding Contract?

There is little in the real estate business - or any business for that matter - that is not handled by electronic communications.

Email exchanges are an effective and efficient manner to transact dealings with multiple parties. Most state legislatures have recognized the growing reliance on electronic communications in transacting business and have enacted statutes facilitating the incorporation of such messages into enforceable agreements. North Carolina is one of these states (North Carolina General Statute 66-311, et seq.). 

Short on Time? Lenders Face Increased Dismissals

In North Carolina, original jurisdiction over power of sale foreclosure hearings rests with the Clerk of Superior Court in the county where the secured property is located.  After years of bulging dockets and responsibilities in other areas growing, Clerks of Court and their Assistant Clerks are looking for ways to move cases and clear off their dockets.  As a result, current trends show an increase in dismissals at all stages of the foreclosure process.  

BB&T V. Peacock Farms: What This Means for the Trial Attorney

Branch Banking and Trust Co. V. Peacock Farms, Inc.: What This Means for the Trial Attorney

In an action against several defendants, the Court just granted opposing counsel’s motion for summary judgment or motion to dismiss as to one but not all of the defendants.  There are a number of things going through your mind.  How am I going to deliver this news to the client? What is my litigation strategy moving forward? How does this affect the overall likelihood of success?  Do I appeal the decision?