Late December is a time of family, mistletoe and “presents under the tree.” It’s not usually the time when minds switch to the specifics of foreclosure procedure. Yet just before they retired for their Christmas break, the justices of the North Carolina Supreme Court dropped off a December 21, 2016 holiday present called In re Lucks which radically changes foreclosure procedure in North Carolina as we know it. Was it a timely present, a lump of coal, or maybe a little of each? You decide.
The facts involved in Lucks are pretty dry. In 2006, Borrower executed a 30-year, $225,000 promissory note which was secured by a deed of trust on property in Buncombe County. At some later date, the note went into default. In 2013, a law firm claiming to be the substitute trustee under the deed of trust started a non-judicial foreclose. That foreclosure was dismissed by the clerk based on the failure of the law firm to present evidence that the firm had actually been appointed as the substitute trustee. Continue Reading