Archive

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

  This entry was contributed by Meredith Smith on March 23, 2020 at 3:30 pm and is filed under Foreclosures.

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

  This entry was contributed by Meredith Smith on November 20, 2019 at 5:45 pm and is filed under Foreclosures.

  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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• You May Not Need that Guardian of the Estate After All: Other Methods of Distributing Property to Minors

  This entry was contributed by Meredith Smith on February 2, 2019 at 1:42 am and is filed under Estates.

  A guardian of the estate for any unemancipated minor may be appointed under G.S. Chapter 35A to receive and administer property on the minor’s behalf.  G.S. 35A-1221; G.S. 35A-1251; G.S. 35A-1202(12) (requiring also that the minor must not be married).  This is because such minors are legally incompetent to transact business or give consent for most purposes.  G.S. 35A-1201(a)(6); see G.S. 7B-3507 (rights of emancipated minors).  Unemancipated minors therefore need responsible, accountable adults to handle property or benefits to which they are entitled.  Id. 

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• The Clerk and Nunc Pro Tunc

  This entry was contributed by Meredith Smith on October 18, 2017 at 3:06 pm and is filed under Clerks of Superior Court.

  At the end of a hearing, the clerk who is the presiding judicial official orally announces (or “renders”) her decision from the bench in favor of the petitioner seeking relief from the court.  The clerk instructs the attorney for the petitioner to prepare an order with appropriate findings of fact and conclusions of law and to return the order to the court for review within two weeks.  The clerk receives the order from the attorney ten days later.  The clerk reviews the written order, makes a few changes to some findings of fact (remember, in the end it is the court’s order and not the attorney’s order who drafted it), and then signs and files it.  Next to the clerk’s signature on the order is the date the order is signed and the earlier date of the hearing along with the words “nunc pro tunc.”

  Does the clerk generally have the authority to enter an order nunc pro tunc?  What is the meaning of this phrase? What is the clerk’s authority to enter an order nunc pro tunc in these specific circumstances?  That’s the subject of today’s post.

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• Tick Tock: Mandatory Time Requirements to Enter A/N/D and TPR Orders

  This entry was contributed by Sara DePasquale on May 10, 2017 at 10:52 am and is filed under Child Welfare Law.

  Subchapter I of G.S. Chapter 7B (the Juvenile Code) governs child abuse, neglect, dependency, and termination of parental rights cases in North Carolina. The Juvenile Code “sets out a sequential process for abuse, neglect, or dependency cases, wherein each required action or event must occur within a prescribed amount of time after the preceding stage in the case.” In re T.R.P., 360 N.C. 588, 593 (2006). Included in the statutory time frames are the timing for entry of orders. What exactly does the Juvenile Code require? And, why does it matter? Continue Reading

• The Clerk’s Contempt Authority

  This entry was contributed by Meredith Smith on July 27, 2016 at 12:35 pm and is filed under Contempt, Judicial Authority.

   

  **UPDATE: Effective July 21, 2017, Session Law 2017-158 expands the clerk’s civil contempt authority. The clerk now has the authority to exercise civil contempt in any instance when the clerk has original subject matter jurisdiction and issued the order that is the basis for the civil contempt in addition to any instance where a statute expressly provides for the clerk’s civil contempt authority.  See S.L. 2017-158, Sec. 11.**
  

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• Dude, Where’s My Note?

  This entry was contributed by Meredith Smith on June 10, 2015 at 7:45 am and is filed under Foreclosures.

  UPDATE: On February, 7, 2017, in an unpublished decision, In re Foreclosure of Iannucci, the NC Court of Appeals upheld the trial court’s reliance on a lost note affidavit as competent evidence to support the court’s findings of fact and, in turn, the conclusion of law that the lender is the holder of a valid debt.   In the opinion, the court did not directly address the jurisdictional issues raised in question two below.  However, the superior court makes the same inquiry on appeal de novo from the clerk as the clerk does in the first instance in a power of sale foreclosure.  See In re Foreclosure of Lucks, ___ NC ___ (Dec. 21, 2016).   By finding that the superior court appropriately relied on a lost note affidavit, a similar finding would likely apply to the jurisdictional authority of the clerk to rely on a lost note affidavit.  Because the court’s decision is unpublished, it does not constitute controlling legal authority, but is some indication of how a court may decide a similar issue on appeal in the future.

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