Faulty Foreclosure Service Results in Lienholder Having to Pay Property Owner

When a lienholder starts a foreclosure, it usually is focused on getting money into its pocket. Yet a recent opinion from the North Carolina Court of Appeals (In re: Ackah – Sept. 5, 2017) should provide a warning to all lienholders – make sure you get proper service in the foreclosure or you may end up with significant money going out of your pocket instead. And if you have an email address for the property owner, make sure to use it to send notice of the foreclosure.

The Facts

Gina Ackah owned residential property in an HOA community near Raleigh. Ms. Ackah moved to Africa and leased the residential property to a tenant while she was gone but did not tell the HOA of her move. Her mail was forwarded to her uncle in South Carolina. In 2014, Ms. Ackah failed to pay her HOA dues and the HOA commenced a foreclosure. The HOA made numerous attempts to send certified mail notices of the foreclosure to Ms. Ackah at her mother’s and uncle’s addresses, but these notices were all unclaimed. The HOA then posted the foreclosure notice on the front door of the property. Even though the HOA had Ms. Ackah’s email address, it never sent the foreclosure notice to her via email. Continue Reading

CFPB’s New Arbitration Rule and How It’ll Likely Be Challenged

On July 10, 2017, the Consumer Financial Protection Bureau (CFPB) announced a new rule that may have significant ramifications for the financial industry. The rule aims to stop a now common feature in financial services contracts: provisions directing customers to private, individual arbitration rather than the courts to settle disputes.

The sweeping rule would ban many financial service companies from using mandatory arbitration clauses in contracts with consumers. The rule does not prohibit such clauses outright, but instead will prevent companies from relying on any arbitration agreement to block a consumer from joining or initiating a class action. The result would be to open the door to class action lawsuits against the vast majority of businesses that extend credit to consumers, including banks, mortgage lenders and servicers, and credit card companies.

In addition, companies will face reporting requirements under the rule for any arbitrations that still happen, either under agreements entered into before the rule becomes effective or for non-class disputes. Parties may then lose the benefit of confidentiality that arbitration can provide. Under the rule, the CFPB would begin posting arbitration data to its public website, starting in July 2019. Continue Reading

The Debt Buying Industry Breathes a Sigh of Relief: Supreme Court Rules for Debt Buyer on FDCPA Claim

Here we are nearing the end of another U.S. Supreme Court term, and it has been a busy one in the creditors’ rights arena – and a particularly good one for debt buyers. Yesterday (June 12, 2017), the Supreme Court issued its second Fair Debt Collection Practices Act (FDCPA) decision of the term: Henson v. Santander Consumer USA Inc. (See our previous blog post about this case after the Fourth Circuit ruled on it in 2016.)

The Supreme Court’s opinion is noteworthy as the first opinion from the newest member of the court, Justice Neil Gorsuch, and for its opening alliterative lines:

“Disruptive dinnertime calls, downright deceit, and more besides drew Congress’s eye to the debt collection industry. From that scrutiny emerged the Fair Debt Collection Practices Act …”

But most memorable for debt buyers is the ruling that the FDCPA does not apply to companies that purchase debt from others and then collect that debt on their own behalf.  Continue Reading

Late Charges on Balloon Payments: How Big Can They Be?

Getting charged extra for a late payment is standard protocol in lending practices. Judges, lawmakers and regulators have long agreed there’s an administrative hassle lenders should be compensated for when having to recover money past its due date. But in the commercial real estate industry, there’s a new question related to maturing loans originated before the financial crisis: Can a lender charge a late fee on the full amount of a balloon payment due at maturity?

In the world of commercial real estate finance, the answer to that question can mean a six or seven figure swing in your loan payoff depending on how the loan documents are interpreted. But so far, courts in New York, Michigan, Arizona and elsewhere have split on what the answer is.  Continue Reading

U.S. Supreme Court Weighs in on Bankruptcy Claims, Fair Debt Collection Practices Act

The United States Supreme Court issued a ruling Monday resolving the question of whether filing a proof of claim for a debt that is time-barred by the statute of limitations is a violation of the Fair Debt Collection Practices Act (FDCPA). In Midland Funding, LLC v. Johnson, Justice Stephen Breyer, writing for the majority, held that filing a proof of claim for a debt that is barred by the applicable state statute of limitations is NOT a violation of the FDCPA.

The case arose out of a Chapter 13 bankruptcy case in which Midland filed a proof of claim for a credit card debt that, on its face, showed that the credit card had not been used in more than 10 years. Such a claim was barred by the six-year statute of limitations in Alabama. After successfully objecting to the claim, the debtor then sued Midland, claiming that the filing of the proof of claim on an obviously time-barred debt was “false,” “deceptive,” “misleading,” “unconscionable” and “unfair” under the FDCPA. The district court held that the FDCPA did not apply and dismissed the lawsuit. The Eleventh Circuit reversed.

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Lenders Welcome Cinco de Mayo Ruling From NC Supreme Court on Deficiency Judgments

Readers of my case alerts may remember a July 2015 alert about the troubling North Carolina Court of Appeals decision in United Community Bank v. Wolfe, which made it a lot harder for lenders to obtain a post-foreclosure deficiency judgment. (For a refresher, you can read that old case alert here.)

Well, the wheels of justice have slowly turned and on May 5, 2017 (almost two years after the Court of Appeals’ ruling), the North Carolina Supreme Court issued its opinion and unanimously reversed the Court of Appeals. Those cheers you hear are lenders celebrating this Cinco de Mayo present.

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Foreclosures in North Carolina – Say Goodbye to Discovery and Res Judicata

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

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

Need To Fix That Accidental Release of a Deed of Trust?

N.C. Gen. Stat. § 45-36.6(b) provides that if a secured party erroneously records a release or satisfaction of a security instrument, then the secured party can file a document of rescission that will effectively rescind the release or satisfaction and reinstate the erroneously released instrument. The Court of Appeals of North Carolina recently issued an opinion outlining which mistakes will permit the filing of a document of rescission.


In 1999, husband and wife borrowers obtained financing to purchase a home in Burlington. The loan was secured by a purchase money deed of trust on their house. In March 2004, the borrowers obtained a home equity line of credit from a predecessor of American National Bank that was secured by a second priority deed of trust on their house. In August 2004, the borrowers refinanced their original purchase loan with a loan from Wells Fargo. This loan was secured by a deed of trust. Wells Fargo subsequently entered into a subordination agreement with American National Bank that provided the Wells Fargo deed of trust had priority over the earlier-filed American National Bank equity line deed of trust. Continue Reading

Don’t Forget About Those Aging Judgments!

Has it really been 8 years since the Great Recession? It doesn’t seem all that long ago when the world economy faced the worst recession in a generation. Bankruptcy filings shot up and it seemed as if no borrower could pay back any loan, particularly those real estate development loans that only a few years earlier seemed like “no lose” loans. As a result of the record number of loan defaults, lenders throughout North Carolina obtained thousands of judgments against borrowers and guarantors. These judgments, obtained in 2008-2010, were dismissed by lenders as “uncollectible” and quickly put on a shelf to gather dust.

Those judgments, which are now 6-8 years old, will expire soon, and a lender must take affirmative action to keep their judgments alive. In North Carolina, a judgment (and the lien on real property created by the judgment) expire ten years from the date of the judgment. The statutes provide that no execution may be issued after the judgment, and its corresponding lien, expire. N.C. Gen. Stat. §§ 1-234, 1-306. It is not enough for the execution to have been commenced prior to the ten year expiration; in North Carolina the execution must be completed before the ten year expiration. Once the judgment expires, so does any pending execution. Continue Reading

Supreme Court Issues Opinions Favorable to Financial Services Companies

May is usually a busy month on the Supreme Court before the justices head off for some summer R&R. It is historically a time when many opinions are issued, and May 2016 has been no exception. Financial services companies should cheer two opinions issued by the  Supreme Court yesterday (May 16, 2016) –  Husky International Electronics, Inc. v. Ritz and Spokeo, Inc. v. Robins.

Husky and Non-Dischargeability of Fraudulent Transfers

Husky was an electronics company that sold $164,000 in products to Chrysalis Manufacturing Corp. Daniel Lee Ritz was a director and partial owner of Chrysalis. In 2006 and 2007, Ritz drained Chrysalis of assets through a series of transfers to related entities, leaving the debt to Husky unpaid. In 2009, Husky sued Ritz personally and sought to hold him liable for the outstanding Chrysalis debt. Ritz filed a Chapter 7 bankruptcy petition and Husky filed a bankruptcy adversary proceeding to have the debt declared “non-dischargeable” under the Bankruptcy Code. Continue Reading