Creditors' Rights

U.S. Bank NA v. Pinkney

North Carolina’s Supreme Court Delineates Crucial Differences Between Power of Sale Foreclosures and Judicial Foreclosures

A non-judicial foreclosure by power of sale is the more common, stream-lined method to foreclose a deed of trust in North Carolina. To allow a sale in a non-judicial foreclosure, the court must find the existence of only six factors. One of those six findings is whether there exists a “valid debt of which the party seeking to foreclose is the holder.”N.C. Gen. Stat. §45-21.16(d) (emphasis added).

Up Close - North Carolina Substitute Trustee Statute Amended

North Carolina: Amendment to the Substitute Trustee Statute
by Terry Hutchens | Hutchens Law Firm LLP – USFN Member (North Carolina, South Carolina)
and Jim Bonner | Brock & Scott, PLLC – USFN Member (North Carolina)

 

In response to questions concerning the recent amendment to N.C.G.S. § 45-10: Substitution of trustees in mortgages and deeds of trust, the following overview and guidance are provided.

North & South Carolina Border Dispute Resolved Again

Are the Carolinas Moving?

Although we may have thought the border between South Carolina and North Carolina was firmly established when the Province of Carolina was divided in 1729, the truth is that the line thought of as the border between the two new colonies contained numerous and substantial errors in its measurements.  These discrepancies in the border have now been resolved through cooperation of the two states by a comprehensive re-survey of the North Carolina/South Carolina boundary line. 

Two Simultaneous Foreclosures and Addresses of Record

A Tale of Two (Simultaneous) Foreclosures and the Importance of Being Locatable (With Apologies and Deference to Charles Dickens and Oscar Wilde)

Every so often, a North Carolina appellate court will issue an opinion that is useful to the mortgage servicing industry not so much for its substantive holding but for the practical guidance that may be gleaned from its dicta.  One such case is In re: Foreclosure of Real Property Under Deed of Trust From Garrett, 795 S.E.2d 1 (N.C. Ct. App. 2016) which involved the following relevant facts:  

Adams Decision: Non-Judicial Foreclosures in NC

In a recent opinion, the NC Court of Appeals in In the Matter of the Foreclosure of a Deed of Trust executed by Adams affirmed the trial court’s order permitting foreclosure despite the homeowner’s assertion that the petitioner failed to give proper notice of the foreclosure proceeding or establish that it was the holder of the debt.  The relevant facts of Adams are as follows:

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.

Administrative Case Closures in Chapter 11

Individual Chapter 11 cases present many challenges to mortgage servicers, but one which creates continuing challenges is determining when a loan may be closed from bankruptcy and returned to general servicing following confirmation.  Upon plan implementation, many servicers seek to remove the bankruptcy hold as quickly as possible.  But determining when a servicer may safely do so without running afoul of the automatic stay, the confirmation order, or the discharge injunction, is often a vague and difficult analysis which many servicers are unable, or unwilling, to undertake.