NC Court of Appeals

Summary: Mr. Smith filed Chapter 11 bankruptcy after Wells Fargo commenced foreclosure on real property. The amended proposed plan provided for the cram-down of the secured claim held by Wells Fargo to $60,000.00. The Confirmation Order provided “that confirmation is expressly conditioned upon [Mr. Smith] providing for the payment of all claims assertable against [Mr. Smith’s] estate as specified in the Plan and in this Order.” The Chapter 11 case was, however, dismissed at Mr. Smith’s request two years later, after which Wells Fargo recommenced foreclosure.

Summary: In a dispute between construction contractors, the Court of Appeals affirmed the trial court order denying a demand for arbitration as untimely. Holding normally a trial court should determine the validity of an arbitration agreement (namely that a valid agreement exists and that the dispute is within the scope of the agreement), here the trial court instead found that even assuming arguendo that there was an enforceable arbitration provision, the demand was untimely.

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.

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.

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.

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.

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.

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.

Summary: Gathings granted a Deed of Trust to Countrywide, later succeeded by Bank of America. The Deed of Trust included the correct Property Identification Number and physical address, but had an incorrect legal description. The property was subsequently sold at a foreclosure sale for homeowners dues to CPI, which did not discover the Deed of Trust in favor of Bank of America.

Summary: Plaintiffs brought suit against, among other, lenders that had financed mortgage loans for the development of investment properties, alleging that the appraisals conducted, which unanimously and uniformly valued real property lots, regardless of specific qualities or locations, for $500,000, the exact minimum to support the mortgage lender’s underwriting requirements, constituted both negligent underwriting and also an unfair trade practice. Following shortly after the Dallaire opinion from the North Carolina Supreme Court (see: