In a prior post, I talked about Eastern Carolina Regional Housing Authority v. Lofton, 767 S.E.2d 63 (2014), a North Carolina Court of Appeals case requiring a landlord seeking summary ejectment based on breach of a lease condition to prove as an essential element of the case “that summarily ejecting [the] defendant would not be unconscionable.” Last week the North Carolina Supreme Court disagreed in a long-awaited opinion, making clear that “the equitable defense of unconscionability is not a consideration in summary ejectment proceedings.” In so doing, the Supreme Court finally put the issue to rest, reconciling inconsistent statements of the law in several Court of Appeals cases, including Lincoln Terrace Associates v. Kelly, Charlotte Housing Authority v. Fleming, 123 N.C. App. 511 (1996), and Durham Hosiery v. Morris. Today, NC law provides that in an action for summary ejectment based on breach of a lease condition, it is sufficient for a landlord to demonstrate that the tenant breached the lease in a manner triggering the right to declare a forfeiture; the landlord has no additional burden to demonstrate that the result of such forfeiture will not be unconscionable. The Lofton opinion, written by Justice Newby, is significant for another reason: the Court also addressed the relative roles of a public housing authority (PHA) and a trial court in a summary ejectment action based on criminal activity in violation of the lease.
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Debt Buyers & North Carolina’s Consumer Economic Protection Act
Last month John Oliver made headlines across the country when his TV show, Last Week Tonight, did an episode focusing on common practices by debt buyers. To illustrate how easy it is to buy consumer debt, Oliver formed a debt-buying company (“CARP”) after complying with legal requirements in Mississippi: paying $50 to the State and appointing himself Chairman of the Board. The new company set up a very basic website and was quickly offered an opportunity to buy $3 million of consumer medical debt for $60,000, along with the names, addresses, and social security numbers of almost 9,000 alleged debtors. At the end of the episode Oliver— in his role as CARP Chairman– forgave the debt by pushing a giant red button. You can watch the excitement, and perhaps learn something about debt-buying, by going to https://www.youtube.com/watch?v=hxUAntt1z2c .
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Teaching Judges about the School to Prison Pipeline
Every June after celebrating Father’s Day, district court judges throughout the state head to Wrightsville Beach for their annual summer conference. Normally, I get to tag along to give them a legal update on recent juvenile delinquency cases and legislation enacted since their fall conference. However, with less than a handful of published delinquency cases decided since the fall and no new legislation, I thought I’d miss this one. To my surprise, they wanted to hear about a different juvenile law topic – The School to Prison Pipeline (or STPP) – a somewhat controversial topic to discuss with judges because it’s more about policy than law. Here’s what I told them in the most neutral, non-advocacy way possible. Continue Reading
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Trial Court Jurisdiction Following Appeal
In Ponder v. Ponder, NC App (May 3, 2016), the trial court conducted a lengthy hearing on plaintiff’s motion to renew a DVPO. Realizing the order needed numerous findings of fact to resolve the issues litigated but wanting to give plaintiff immediate protection, the trial court entered a renewal order with no findings of fact on AOC Form CV-314 and informed the parties that a more detailed supplemental order would replace the form order as soon as the court had time to complete it. Following entry of the form order, defendant appealed. The trial court then entered the supplemental order with extensive findings of fact only to have the court of appeals hold that both the form and the supplemental orders were void ab initio. The form order was void for a lack of findings and the supplemental order was void because it was entered after appeal was taken.
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Subject Matter Jurisdiction in Actions for Summary Ejectment
For hundreds of years, the law has provided a procedure for landlords to obtain assistance from the justice system in ousting a tenant and taking back rental property. In North Carolina in the late 19th Century, just as today, “proceedings in ejectment” were one of the most common types of civil cases filed. I recently spent some time reading many older landlord-tenant cases in an effort to trace the development of the law pertaining to subject matter jurisdiction in summary ejectment cases. I began with some reservations about the continued relevance of these cases. After all, North Carolina’s entire court system was revised – and the Rules of Civil Procedure adopted– after many of these cases were decided. Justices of the peace no longer hold court, and appeal from small claims court is to district—not superior—court today. What I found striking in doing this research was actually how little has changed. The questions in the late 1800s may have used different legal terminology, but would be familiar to any small claims magistrate. One of the most common issues, for example, was whether a seller/landlord could regain possession of property subject to a rent-to-own agreement by way of summary ejectment. Another was whether a buyer by way of foreclosure could use summary ejectment to oust the former owner. What I found is that the rules governing jurisdiction in ejectment cases have remained remarkably consistent in application, although the underlying rationale for the rules has, from the beginning, been considerably more variable. This post attempts to summarize those procedural rules where they are clear. In my next post, I’ll discuss some troublesome areas in which clarity is lacking. Continue Reading
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Adoptions and Sperm Donors
*Note, since this post was published, North Carolina laws on statutory construction were amended. Effective July 12, 2017, the terms “husband and wife” and other terms suggesting a lawful marriage must be construed to include any two individuals who are then lawfully married to each other. See S.L. 2017-102, sec. 35 creating G.S. 12-3(16). This impacts the analysis of G.S. 49A-1, where it does apply to a mother and her spouse. For a further discussion, see New Legislation Acknowledges Same-Sex Marriage, posted by our colleague Cheryl Howell on Aug. 8, 2017.
Since our blog post, Same-Sex Marriage and Adoptions of a Minor by a Stepparent, we have received several inquiries about the role of a sperm donor in an adoption proceeding. Although General Synod of the United Church of Christ v. Resinger, 12 F. Supp. 3d 790 (W.D.N.C. 2014) and Fisher-Borne v. Smith, 14 F.Supp. 3d 695 (M.D.N.C. 2014) held NC’s ban on same-sex marriage is unconstitutional, they did not specifically address parentage when a child is conceived or born during a same-sex marriage. And, although artificial reproductive technology has advanced in the last 20 years, the laws in NC have not fully addressed these advances and how they impact parentage. Continue Reading