Archive

Tag: Clerk of Superior Court
  • More on the Protecting Tenants at Foreclosure Act

    * 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.* Continue Reading

  • It’s Time for a New SOG Cohort of Elder Abuse Multidisciplinary Teams

    How does elder abuse show up in your community?

    How has the COVID-19 pandemic affected how that abuse happens or how local professionals respond to it?

    A new opportunity to address these concerns is opening up September 9th.The intent of the North Carolina Elder Protection Network is to connect, inform, and support our public professionals who are working together to find ways to prevent and respond to abuse of older adults.

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  • Quick Reference Guide to Orders from the Chief Justice and the North Carolina Supreme Court Related to COVID-19

     

    Since the start of the pandemic, the Chief Justice of the North Carolina Supreme Court and the North Carolina Supreme Court have issued a number of directives impacting the court system.  Instead of doing a heavy substantive post today, I thought I would share a quick reference chart I’ve been using to keep track of these directives, their effect based on the most recent order issued, the dates of the order containing each directive, and their expiration date. Continue Reading

  • Expiration and Extension of Federal and State Limits on Foreclosures in North Carolina

    UPDATE (August 31, 2020): The federal moratorium on foreclosures and evictions from properties subject to foreclosure is extended for many loans through December 31, 2020.

    • The Federal Housing Finance Agency (FHFA) announced that Fannie Mae and Freddie Mac extended the moratorium on single-family foreclosures and real estate owned evictions through December 31, 2020.
    • The U.S. Department of Housing and Urban Development through the Federal Housing Administration announced an extension of its foreclosure and eviction moratorium through December 31, 2020 for homeowners with “FHA-insured Title II Single Family forward and Home Equity Conversion (reverse) mortgages.”
    • The Department of Veterans Affairs announced an extension of the foreclosure moratorium on VA-guaranteed loans through December 31, 2020.
    • The U.S. Department of Agriculture announced an extension of the foreclosure and eviction moratorium for all USDA Single Family Housing Guaranteed Loan Program loans through December 31, 2020.

    UPDATE (June 23, 2020): 

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  • Temporary Changes to Service on the Respondent in Incompetency Proceedings

    A heightened level of service is required on a respondent to an incompetency proceeding in North Carolina.  G.S. 35A-1109 requires copies of the petition (SP-200) and the notice of hearing (SP-201) to be personally served on the respondent (the alleged incompetent adult).  As my colleague, Ann Anderson, discussed in an earlier post, because the use of private process servers is very limited in North Carolina, personal service is completed on the respondent by the sheriff in most cases.  Under the version of G.S. 35A-1109 in effect prior to May 4, 2020, service was not proper if the notice and petition were sent by FedEx, UPS, or regular mail or left with a family member at the respondent’s home or with a caregiver at a facility where the respondent resides. This heightened requirement of service on the respondent ensures that the respondent knows of the proceeding and knows the location, date, and time of the hearing. It reflects the significant impact an adjudication of incompetency has on a person’s rights to make decisions about his or her life and property. Continue Reading

  • Federal and State Limits on Foreclosures in North Carolina in Response to COVID-19

    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 orders in April of 2020.

    • The April 2nd order directs that all proceedings, including proceedings before clerks of superior court, must be scheduled or rescheduled for a date no sooner than June 1 unless an exception to this directive applies.  One exception includes if the proceeding will be conducted remotely; a remote proceeding may not be without the consent of each party.  See April 2nd Order, Emergency Directive 1 and 3.  This order extends the dates in the March 16 order discussed in the post below from April 15 to June 1. 
    • The April 13th order extends the date to file documents and to take certain acts to the close of business on June 1.  This extends the dates in the March 19 order discussed in the post below from April 17 to June 1.

    UPDATE #1 (March 30, 2020):  On March 27, 2020, President Trump signed the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”).  Section 4022(c)(2) of the CARES Act provides that “a servicer of a Federally back mortgage loan may not initiate any judicial or non-judicial foreclosure process, move for a foreclosure judgment or order of sale, or execute a foreclosure-related eviction or foreclosure sale for not less than the 60-day period beginning on March 18, 2020.”  This moratorium does not apply to a vacant or abandoned property.  A “Federally backed mortgage loan” is defined in Section 4022(a)(2) as “any loan which is secured by a first or subordinate lien on residential real property (including individual units of condominiums and cooperatives) designed principally for the occupancy of from 1- to 4- families that is

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  • 2019 Statutory Amendments to Adoption Laws

    During the 2019 legislative session, various changes were made to the laws impacting adoptions in North Carolina. Last week, the North Carolina General Assembly passed a Joint Resolution (Resolution 2020-1) adjourning the long session of the 2019 Regular Session and designating the start of the short session as April 28, 2020. This post summarizes the amendments impacting adoption proceedings that were made during the long session, all of which are currently in effect. Continue Reading

  • Where are We Now:  The Protecting Tenants at Foreclosure Act

    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 in effect, expired, and restored at various points over the past decade.  During one period after the PTFA expired, the NC General Assembly passed a law (S.L. 2015-178) to provide somewhat similar (but not exact, more on that below) protections for tenants of foreclosed property under state law.  Most recently, the NC General Assembly took action to repeal that law in light of the permanent restoration of the PTFA. See S.L. 2019-53 and S.L. 2019-243. This blog post tracks where we’ve been and where the law currently stands related to the PTFA and power of sale foreclosures under G.S. Chapter 45 in NC.

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  • Civil Actions and Financial Exploitation of Older Adults: Who Brings the Action?

    Financial exploitation of an older adult is a type of elder abuse.  It occurs in many forms.  A door-to-door home repairman defrauds an older adult out of her life savings.  A caregiver gets an older adult who lacks capacity to sign a deed conveying the older adult’s property to the caregiver’s son.  An adult child steals the older adult’s debit card and withdraws significant amounts of money for his own benefit.  (Notably, a recent study suggests that relatives may perpetrate more financial elder abuse than strangers.)

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  • Eight Common Mistakes by Guardians of an Incompetent Adult’s Estate

    In connection with an upcoming class on guardianship, I recently surveyed a number of clerks of superior court (judicial officials who preside over guardianship cases in NC) about common post-appointment problems among guardians.  My questions focused on non-attorney individuals serving as general guardians and guardians of the estate.  Here are some specific issues identified related to those guardians charged with managing an incompetent adult’s property under G.S. Chapter 35A of the NC General Statutes.  For purposes of this post, “guardian” means a guardian of the estate or general guardian.

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