Articles in the Foreclosures category

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Many counties in Western North Carolina continue to struggle with the devastating effects of Hurricane Helene.  As of today, seven county courthouses are reporting closures of some type.  An updated […]

A power of sale foreclosure under North Carolina General Statutes Chapter 45 is intended to provide an efficient and expeditious alternative to a judicial foreclosure. In re Adams, 204 N.C. […]

* Note, this post focuses solely on the application of the federal Protecting Tenants at Foreclosure Act to Chapter 45 power of sale foreclosure proceedings.  Many foreclosures and evictions of occupants from properties acquired through foreclosure, including pursuant to an order for possession under G.S. 45-21.29(k) (the subject of this post), remain subject to a federal moratorium due to the pandemic.  This moratorium was recently extended through December 31, 2020.  To read more about current federal and state limits imposed on foreclosure proceedings due to the pandemic, click here.

A borrower stops making his home mortgage payments.  A lender files a power of sale foreclosure pursuant to G.S. Chapter 45 to foreclose the lien of the deed of trust.   After title to the property is transferred to a new owner out of the foreclosure, an occupant remains on the property.  The new owner of the property, also known as the successor in interest, files a petition with the clerk of superior court under G.S. 45-21.29(k) for an order for possession.  The petition and other evidence provided by the petitioner meet requirements of subsection (k) but the petition also states the occupant is a bona fide tenant.*

UPDATE (June 28, 2021):  The federal moratorium on foreclosures and evictions from properties subject to foreclosure is extended for many loans. The Federal Housing Finance Agency (FHFA) announced that Fannie […]

UPDATE #3 (May 29, 2020): For more recent updates, refer to this blog post. UPDATE #2 (April 14, 2020):  The Chief Justice of the North Carolina Supreme Court entered two […]

As I noted in a prior blog post, the US Congress restored the federal Protecting Tenants at Foreclosure Act (PTFA) without expiration on June 23, 2018.   The PTFA has been […]

A trustee in a power of sale foreclosure has a fiduciary duty to both the debtor and the creditor.  In re Foreclosure of Vogler Realty, Inc., 365 N.C. 389, 397 (2012).  The trustee must be impartial in the performance of his or her duties as a disinterested third party and may not give an unfair advantage to one party to the detriment of the other.  Id.  See also In re Foreclosure by Goddard & Peterson, PLLC, 789 S.E.2d 835, 841 (2016); In re Foreclosure of Real Property for $143,600.00, 156 N.C. App. 477, 483 (2003).  This duty is recognized in G.S. Chapter 45, which requires that the notice of hearing include a statement that the trustee is a neutral party and, while holding that position, may not advocate for the creditor or the debtor in the foreclosure proceeding.  G.S. 45-21.16(c)(7)(b).

A trustee may be held liable for breach of fiduciary duty through a civil action brought in district or superior court.  See Goddard, 789 S.E.2d at 841.  If the trustee is an attorney or represented by an attorney, then the attorney also may be subject to sanctions by the N.C. State Bar for violating the N.C. Rules of Professional Conduct.  This includes Rule 1.7(a) which prohibits the common representation of multiple clients if the representation involves a concurrent conflict of interest.  A number of ethics opinions drafted by the Ethics Committee of the State Bar provide guidance to an attorney serving as or representing a trustee in a power of sale foreclosure.  See CPR 94; CPR 166; CPR 201; CPR 220; CPR 297; CPR 305; RPC 3; RPC 64; RPC 82; RPC 90; 2004 FEO 3; 2008 FEO 11; 2011 FEO 5; 2013 FEO 5; and 2014 FEO 2.

A new law, Session Law 2017-206, went into effect on August 30, 2017 codifies a number of these opinions. The law contains a modification and addition to G.S. Chapter 45-10 and directly applies to those situations in foreclosure proceedings where an attorney is serving as the trustee.  This post will give some preliminary thoughts on the new law as well as briefly discuss some of the related ethics opinions.  For a more detailed review and application to a particular case in your practice, I would recommend reviewing the full ethics opinions cited herein.

UPDATE:  On March 26, 2019, the NC Court of Appeals in Gray v. Federal National Mortgage Association interpreted Lucks and held while the doctrine of collateral estoppel does not apply to an order not authorizing a non-judicial foreclosure sale, it does apply to an order authorizing a sale.

On December 21, 2016, the North Carolina Supreme Court published a final set of opinions for the year.  Without a doubt, one case in particular stopped me in my tracks.  The case, In re Foreclosure of Lucks, will have a significant impact on G.S. Chapter 45 power of sale foreclosures going forward. ____ N.C. ____ (Dec. 21, 2016).   Here’s both the general and the specific about what the court had to say.

In an opinion published on January 5, 2016, a three-judge panel of the NC Court of Appeals addressed a frequently contested issue in power of sale foreclosure proceedings: whether the party seeking to foreclose by power of sale provided sufficient evidence to establish it was the holder of the note under G.S. 45-21.16(d)(i).   See In re Foreclosure of Kenley, ____ N.C. App. ____ (Jan. 5, 2016).