Tag: notice

N.C. Court of Appeals: In re Ackah- Remedy for Statutorily Defective Notice of Foreclosure Does Not Include Overturning Sale

Summary:

Reserve Homeowners Association commenced a foreclosure against residential rental property owned by Ms. Ackah for unpaid homeowner’s association dues. Notice of the sale was left at the property and notices sent (and returned unclaimed) to other family members. Ultimately, the property was purchased by the Jones Family Holdings a the sale. Finding that Ms. Ackah did not receive actual notice of the foreclosure , the superior court accordingly set aside the sale.

The majority of opinion of the Court of Appeals held that N.C.G.S. § 1A-1, Rule 4 did require the HOA to use “due diligence” in effectuating service. Since the HOA knew or had reason to know that Ms.… Read More

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E.D.N.C.: Wells Fargo v. Farag- Determination of Priority of Mortgage Liens

Summary:

The Farags (who were eventually represented by my law firm in their Chapter 13 bankruptcy- all statements in this posting are taken solely from the court decisions) obtained a line of credit in 2002 with Wells Fargo, secured by their real property. This was refinanced in 2004 by PNC, which, based on a pay-off statement from Wells Fargo, paid the balance owed and requested that the Deed of Trust be marked as satisfied and record. Wells Fargo failed to do so and the Farags continued to take advances from the line of credit totaling over $300,000.00.

Upon filing Chapter 13 on March 29, 2012, the Farags indicated that the real property would be surrendered.… 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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Bankr. M.D.N.C.: In re Bolden- Service Pursuant to Rule 7004 on an Officer or Managing Agent

Summary:

The Debtor served a copy of a Motion to Avoid the Judgment Lien held by Main Street Acquisition Corp. at its place of business and also by serving its attorney in the state court action. She did not direct service of the Motion to either “the attention of an officer, a managing or general agent or any other agent authorized by appointment or law to receive service of process…” Bankrupt Rule 7004(b)(3).

Without deciding whether the Debtor need to name a specific person for service or if “the service may be more generally and generically addressed to the attention of an officer, a managing or general agent or any other agent authorized by appointment or law to receive service, the court found that lacking any such, service was insufficient.… Read More

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N.C. Ct. of Appeals: In re Dong- Foreclosure Deed Set Aside

Summary:

On June 17, 2010, Waddington Ridge HOA filed a claim of lien against Dong’s residence and then filed a notice of foreclosure hearing on July 22, 2010. At that hearing, the Clerk of Court allowed the foreclosure to proceed and the sale was held on November 2, 2010, with the foreclosure deed being recorded on February 17, 2011. Dong filed a motion for relief from the foreclosure order on October 31, 2011, and the trial court ultimately concluded that Dong had not received proper notice and, pursuant to N.C. R. Civ. P. 60(b)(4) and (6), set asided the foreclosure order and declared the deed void.… Read More

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