N.C. Court of Appeals: In re Clayton- Surviving Spouse not a Borrower under Reverse Mortgage

Summary:

Melvin Clayton obtained a reverse mortgage, granting a Deed of Trust against his home. His wife, Jackie, was ineligible for the reverse mortgage (presumably because she was not old enough), so did not sign the note, but did sign the Deed of Trust. The note included a provision that accelerated the debt upon his death, unless a “surviving borrower” continued to reside in the home. Upon Melvin Clayton’s death, Wells Fargo sought to foreclose.

The Court of Appeals held that as N.C.G.S. § 53-257(2) defines a borrower in a reverse mortgage to be 62 years of age or older, Jackie Clayton was not a “surviving borrower”, the acceleration was proper. (But cruel.)

Commentary:

The provisions in the Dodd-Frank Act and regulations promulgated by the CFPB regarding successors in interest would have precluded this acceleration of the note, except that reverse mortgages are not covered by such.

Ms. Clayton could, nonetheless, file a bankruptcy to halt the foreclosure, as, pursuant to Johnson v. Home State Bank, 501 U.S. 78 (1991), the home would be an asset of her estate and Wells Fargo would have a claim, despite her not being a borrower or liable on the debt personally. She would likely have to satisfy the entire mortgage during her plan, making Chapter 11 (which does not have a 60 month limitation) perhaps the better option.

For a copy of the opinion, please see:

In re Clayton- Surviving Spouse not a Borrower under Reverse Mortgage

About

1. Bachelor of Arts degree in English Literature from Washington University, 1993. 2. Juris Doctor degree from George Washington University, 1996. Admissions to Practice of Law: North Carolina Bar, 1996. Federal District Courts for the Eastern and Middle Districts of North Carolina. Specialty Certification: North Carolina State Bar: Certified as a Specialist in Consumer Bankruptcy. Areas of Practice: Practice limited to consumer and business debtor bankruptcy law, 1998 to present. Memberships: National Association of Consumer Bankruptcy Attorneys (NACBA). North Carolina Academy of Trial Lawyers (NCATL). North Carolina Bar Association, Bankruptcy Section. Lectures prepared and presented: North Carolina Academy of Trial Lawyers seminar on bankruptcy; Topic: Counseling the Consumer Debtor Prior to Court - C.Y.A. Forms to Help 'Gird They Loins'; 2001. Middle District Bankruptcy Seminar; Topic: Preparing Chapter 13 Plans; 2002. NACBA National Convention; Topic: Efficient Office Practices; 2003. NACBA National Convention; Topic: Chapter 7 vs. Chapter 13 Debates; 2004. Middle District Bankruptcy Seminar; Topic: Chapter 7 & 13 Hot Issues; 2004. Positions held: NACBA National Convention; Convention Chair; 2008. NACBA National Convention; Panel Moderator: Topic: Basic Bankruptcy Issues; 2008. NACBA National Convention; Panel Moderator; Topic: Chapter 13-Disposable Income and Other Issues; 2007. NACBA National Convention; Panel Moderator; Topic: Representing Members of the Military and Their Families; 2007. NACBA, Member of National Board of Directors, 2006 to present. NCATL, Chair of the Bankruptcy Section, 2003 to 2007. NACBA, Chair of the North Carolina Section, 2003 to 2007. NC Bar Association, Bankruptcy Section, Bankruptcy Council Member, 2004 to present.

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