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By Ed Boltz, 20 March, 2013

N.C. Ct. of Appeals: Wells Fargo Bank, N.A., v. Arlington Hills of Mint Hill, L.L.C.- Offset Defense to Foreclosure Deficiency not Available to Guarantor

Summary: In November of 2005, Arlington Hills executed a promissory note and Deed of Trust for $596,345, with such currently being held by Wells Fargo. Thereafter, John & Beverly Cobb, Max & Christy Smith, and Mark Carpenter executed personally guarantees for the note in order to obtain renewals and modifications of the terms. When Arlington Hills defaulted the balance on the note was nearly $2 million, Wells Fargo initiated both a foreclosure and suit against both Arlington Hills and the several guarantors.
By Ed Boltz, 8 March, 2013

N.C. Supreme Ct.: In re Bass- Stamped Indorsement is Sufficient for Transfer

Summary: The first indorsement in a chain of transfers of a mortgage note was simply a stamp, without an accompanying signature or initials. After falling behind on mortgage payments, Bass, relying on Econo-Travel Motor Hotel Corp. v. Taylor, 301 N.C. 200 (1980), challenged the standing of U.S. Bank as the holder of the note, arguing that it had not been properly indorsed. The North Carolina Supreme Court rejected this argument relying on the broad definition of “signature” in the Uniform Commercial Code (UCC), at N.C.G.S.
By Ed Boltz, 18 January, 2013

N.C. Court of Appeals: In re Gray- Foreclosure does Require Showing that the Underlying Debt was not Illegal

Summary: The Homeowners argued that their mortgage closing was conducted by two non-attorneys, whose advice regarding their rights and obligations constituted the unauthorized practice of law under N.C.G.S. § 84-4. As such, relying on In re Foreclosure of a Deed of Trust Executed by Bradburn, 199 N.C. App. 549, 551, 681 S.E.2d 828 (2009), they argued that the contract was void and unenforceable. In Bradburn, the Court of Appeals had found that a mortgage made by a broker unlicensed under N.C.G.S.
By Ed Boltz, 15 December, 2011

4th Circuit: Watkins v. Sun Trust- Incorrect TILA Notice of Right to Cancel Form is not a Material Violation

Summary: The Debtors refinanced their home original Sun Trust mortgage again with Sun Trust, which provided the Model Form H-8 "Notice of Right to Cancel", which is used for closed-end secured consumer credit transactions.  In fact it should have used Model Form H-9, which applies in a refinancing rather than new extension of credit.  Form H-9 differs from  Form H-8 in two ways- First, instead of Form H-8’s disclosure that the borrower is "entering into a transaction that will result in a security interest in your  home," Form H-9 provides that "[y]ou are
By Ed Boltz, 13 December, 2011

NC Court of Appeals: GMAC Mortgage v. Miller- Ambiguous and/or Conflicting Description of Real Property in a Deed of Trust

Summary: William Miller, Russell Grogan and Stephanie Grogan purchased a 21.394 acre tract (Tract I) in 1997 and subsequently a 0.15 acre tract (Tract II) to provide access to a road.  In 2003, the owners granted a Deed of Trust to GMAC.  The Deed of Trust included a tax parcel number that encompassed both Tract I and Tract II, but the legal description only referenced Tract II.  In 2005, the owners subdivided Tract I into Tract IA, consisting of 10.932 acres owned by all three,  and Tract IB, consisting of 10.389 acres which was henceforth to be owned solely by the Grogan
By Ed Boltz, 6 December, 2011

N.C. Court of Appeals: In re Carver Pond- Merger Documents are Sufficient to show that a Party is the Holder of a Note

Summary:

By Ed Boltz, 11 November, 2011

Economics Review: Mitman- Macroeconomic Effects of Bankruptcy & Foreclosure Policies

Summary:

This paper looks at the extent that differences in foreclosure and bankruptcy laws can jointly explain variation in default rates across states.  The author  finds that more generous homestead exemptions raise the cost of unsecured borrowing. Households in states with high exemptions therefore hold less unsecured and more mortgage debt compared to low exemption states, which leads to lower bankruptcy rates but higher foreclosure rates.

By Ed Boltz, 11 November, 2011

EDNC: In re Adams- Discharge Violation by Mortgage Servicer following Completion of a Chapter 13 Plan

Summary:

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