Tag: collateral attack

N.C. Ct. Of Appeals: Howse v. Bank of America- Collateral Attack on Foreclosure

Summary:

In previously ruling on the foreclosure by power of sale on this property, the North Carolina Supreme Court upheld that foreclosure, finding that the Deed of Trust contained a sufficient description to identify the real property. See In re Foreclosure of a Deed of Trust Executed by Reed, 233 N.C. App. 598, 758 S.E.2d 902, 2014 N.C. App. LEXIS 381 (2014). Subsequently, but before the foreclosure sale was completed, Mr. Howse and Ms. Reed brought a separate suit in Superior Court, raising equitable grounds to enjoin the foreclosure. Bank of America successfully argued that this was an impermissible collateral attack on the foreclosure by power of sale.… Read More

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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: 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: Cullen v. Emmanuel & Dunn- Collateral Attack & Iqbal/Twombley

Summary:

In a prior related case, the Plaintiffs brought class action suit against Credit Collections Defense Network (“CCDN”) and several individuals, as attorneys associated with CCDN, alleging a scam that involved promises to assist debtors in legally avoiding credit card debts. See Lucas v. R.K. Lock & Assoc., 710 S.E. 2d 707 (N.C. Ct. App. March 2011). In that case, the attorney defendants moved for and were granted a dismissal due to a lack of personal jurisdiction, as they did not have minimum contacts with the State of North Carolina, other than in connection with CCDN, which had not been named in that Complaint as a party.… Read More

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