Month: February 2015

N.C. Court of Appeals: In re Bober- Finality of Foreclosure Sale

Summary:

The Bobers sought to raise issues with the validity of the notarization of a Deed of Trust against property owned as tenants by the entireties on the basis that Mr. Bober had signed it for himself and under a Power of Attorney for his wife, but the notary did not expressly indicate that he was appearing in that capacity for Mrs. Bober.

The Court of Appeals did not need to reach this rather dubious argument, as the foreclosure sale had completed prior to the commencement of this action, precluding collateral attack and mooting the issue as the rights of the parties were now fixed.… Read More

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N.C. Court of Appeals: In re Powell- Sufficiency of Notice of Foreclosure

Summary:

After falling delinquent on her mortgage in September of 2012, Nationstar sent a notice of default to Powell on March 5, 2013. This was followed by a notice of her right to dispute the debt. On April 26, 2013, the Substitute Trustee commenced foreclosure attempting service through the Sheriff’s office. Unable to serve Powell, the deputy posted the foreclosure notice on her door. Further notice was attempted through certified mail on May 1, 2013, but this was returned as unclaimed. After the foreclosure was final, Powell sought to have it set aside, asserting she had not received notice.

Powell appealed arguing N.C.G.S.… Read More

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N.C. Court of Appeals: Mazzone v. Bank of America- Res Judicata Effect of Foreclosure Hearing

Summary:

The Court of Appeals held that the finding by the Mecklenburg Clerk of Court at the foreclosure hearing that Bank of America was the holder of the mortgage note was res judicata and precluded the Mazzones from making an impermissible collateral attack on this question in a subsequent action to quiet title.

Commentary:

The Court of Appeals here relied completely on Phil Mechanic Const. Co., Inc. v. Haywood, 72 N.C. App. 318, 322, 325 S.E.2d 1, 3 (1985) which held that “when a mortgagee or trustee elects to proceed under G.S. 45-21.1 et seq., issues decided thereunder as to the validity of the debt and the trustee’s right to foreclose are res judicata and cannot be relitigated”.… Read More

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N.C. Court of Appeals: In re Clouse- Requirement for De Novo Foreclosure Hearing

Summary:

On October 21, 1998, the Clouses granted a Deed of Trust against their home originally to Homecomings Financial, later assigned to Deutsche Bank and serviced by GMAC. On June 22, 2012, Turnip Investments, following its suit against the Clouses, purchased the property at a judgment execution sale for $1,000. Subsequently, Deutsche Bank commenced foreclosure against the property and Turnip Investments appealed the foreclosure authorization by the Clerk first to the Superior Court, where Turnip Investments raised no objections to any evidence, and then a further appeal to the Court of Appeals.

There Turnip Investment argued that the Superior Court failed to conduct a proper de novo hearing and had insufficient evidence to show that Deutsche Bank was the holder of the Note.… Read More

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M.D.N.C.: Brown v. Western Sky- Forum Selection and Tribal Exhaustion

Summary:

Plaintiffs brought a class action against various payday lenders for violations of North Carolina law forbidding high interest rate loans either through by telephone or internet. The loan agreements all included forum selection clauses granting almost exclusive jurisdiction to the Cheyenne River Sioux Tribe (“CRST”), upon which the Defendants sought dismissal of the action, arguing that the district either lack of jurisdiction to hear the matter or, alternatively, that the CRST should make the initial determination regarding the enforcement of the forum selection clause.

Beginning from Atl. Marine Const. Co. v. U.S. Dist. Court for the W. Dist. of Texas, 571 U.S.… Read More

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N.C. Court of Appeals: Macon Bank v. Cornblum- Clerical Error in Consent Order

Summary:

Mr. & Mrs. Cornblum entered into a consent judgment with Plaintiff for a $225,000 from default on a home equity line. The Consent Order, despite being signed by both parties and the lawyer, identified as “Attorney for the Defendants”, used the singular “Defendant” throughout the body of the agreement. The Cornblums later asserted, in contesting a execution, that it was ineffective.

The Court of Appeals rejected this as the error was clearly clerical and awarded the sanctions against the Coleman for a frivolous appeal.

For a copy of the opinion, please see:

Macon Bank v. Cornblum- Clerical Error in Consent Order Read More

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N.C. Court of Appeals: Wells Fargo v. Coleman- Statute of Limitations for Reformation of Deed of Trust is a Factual Determination; Reasonable Diligence not required for Mutual Mistake

Summary:

The Colemans own lots 42, 43, 44, and 45 of a subdivision, with their home located on lots 42 and 43 and lots 44 and 45 being undeveloped. In 2007, Mr. Coleman borrowed $137,567.00 from (now) Wells Fargo, secured by a Deed of Trust signed by the couple. The Deed of Trust described the property as:

All that real property situated in the County of Davidson, State of North Carolina:
Being the same property conveyed to the Grantor by Deed recorded in Book 1007, Page 1013, Davidson County Registry, to which deed reference is hereby made for a more particular description of this property.… Read More

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