Jeffrey A. Bunda

In North Carolina, Lost Notes Find a Home in the Clerk’s Office

LNAs Can Be Used in Power of Sale Foreclosures when the Present Holder Lost the Note

In an October 2, 2018 published opinion from the North Carolina Court of Appeals, the Court confirmed that a lender who lost the original promissory note while it was in physical possession of the original note may proceed with a power of sale foreclosure proceeding before the Clerk of Court. In In re Frucella, No. COA 18-212 (October 2, 2018), the homeowners appealed the Clerk’s order authorizing a foreclosure sale for a hearing de novo before a Superior Court judge.

The Rules of Civil Procedure Do Not Apply to NC Foreclosures

The “Lucks” Stop Here: The Rules of Civil Procedure Do Not Apply to NC Foreclosures

The North Carolina Supreme Court issued a landmark decision in the case of In re Foreclosure of Lucks, No. 162A16 (December 21, 2016). The Court’s opinion definitively states that the Rules of Civil Procedure do NOT apply to North Carolina power of sale foreclosures and ends a torrent of recent litigation that sought to convert North Carolina’s streamlined, contractual procedure into full-blown litigation.

Lender’s Affidavits Again Upheld in NC

Know When You Swear: Lender’s Affidavits Again Upheld in North Carolina

In a published decision from the North Carolina Court of Appeals, the Court again rejected a debtor’s challenge to a foreclosing lender’s affidavit in In re Foreclosure of Collins, No. COA16-655 (N.C. Ct. App. February 7, 2017).  This opinion offers guidance on the best practices of affidavit preparation and execution for North Carolina foreclosures under power of sale.

Third Party Option? Challenges to Enforcing Lost Notes in NC

The North Carolina Court of Appeals has raised another roadblock for lenders seeking to recover a debt where the original note has been lost.  In Emerald Portfolio, LLC v. Outer Banks/Kinnakeet Associates, LLC et al., 2016 WL 4598561 (N.C.App. 6 September 2016), the Court held that a party who never possessed a note cannot avail itself of North Carolina’s version of the UCC to enforce the note.