When a mortgage lender determines that you have defaulted according to the terms of your home loan, they may proceed with foreclosure through a trustee. In North Carolina, homeowners should receive a ‘Notice of Default’ first. This allows an opportunity to resolve the delinquency and bring the account current before the foreclosure is filed. And, there are a number ‘loss mitigation’ options for homeowners to avoid foreclosure. However, once a petition in foreclosure is filed and served in North Carolina, homeowners need to think about mounting a foreclosure defense or exploring loss mitigation options.
After a North Carolina homeowner receives a ‘Notice of Default’, they must take action. If the account cannot be brought current, there are still actions the homeowner can to take to defend the foreclosure. There are also a number of ‘loss mitigation’ options that can be explored to save the home from foreclosure.
Does a ‘Notice of Default’ mean they will foreclose?
North Carolina law requires that lenders give certain notices to homeowners and allow borrowers on a mortgage an opportunity to resolve the delinquency. The Notice of Default will disclose the amounts needed to bring the account current and avoid the foreclosure.
But for some NC residents, bringing their account current is not possible. And, If the account is not brought current or some other arrangements are made, the Notice of Default is usually followed by a ‘Notice of Hearing‘. (Lenders must wait 30 days after sending the Notice of Default before serving a Notice of Hearing.) This Notice of Hearing means that a petition in foreclosure has been filed with the Clerk of Court and the homeowner needs to appear in court. In court, they have the opportunity to show why the foreclosure should not go forward and present some foreclosure defense. If the borrower does not appear in court, the home/loan could be foreclosed without the homeowner being present.
Homeowners should never ignore a Notice of Hearing!
If you have been served with a NOTICE OF HEARING in North Carolina, you need to take it seriously. In North Carolina, foreclosure petitions are processed through the Clerk of Court in the county you are in. Each North Carolina county has a Special Proceedings Clerk who handles the foreclosures. At the hearing, the trustee will present the documents from the lender which would attempt to show the default, and if their papers are in order, the clerk will order that the foreclosure be allowed.
The Trustee is supposed to be an “independent third party” who is only there to present the paperwork to the clerk as a representative of the “holder of the note”, which is the lender that you borrowed from or its successor. So, this representative trustee has no dog in the fight. And, homeowners can and should appear with or without counsel and present a foreclosure defense.
So, what are the options for North Carolina homeowners to defend a foreclosure, and do i need an attorney?
If you are facing a foreclosure in North Carolina, you may have defenses to the foreclosure itself. Other than showing receipts that it has been paid, the foreclosure defenses in North Carolina can be complicated.
There may be issues with the promissory note itself, its chain of custody, and/or its “endorsements” or signatures. The party representing to be the “holder of the note” may not be the actual “holder in due course”, with no right to foreclose. There are many things that can be challenged in a special proceeding in foreclosure, and the decision of the clerk can be appealed to be heard in a new trial before a judge.
If you are wanting to mount a defense to your foreclosure in court, contact us through the link below to discuss foreclosure defense in North Carolina. If you have received a notice of hearing, please fill out the form on our website to see if we can help.
What are the ‘loss mitigation’ options?
Loss mitigation options would be options for homeowners who would like to keep the home, and avoid foreclosure. These options include: loan modifications, re-instatements, or something similar to get the account current. Our office has assisted hundreds of North Carolina residents with these loss mitigation options. If a loan cannot be modified, or the loan servicer and investor on the loan won’t agree, then a homeowner may consider bankruptcy as an option.
The last resort would be to explore “walk away” options such a deed-in-lieu of foreclosure (where the home is surrendered to avoid the extra costs of foreclosure). Or, short-sale, where the home is sold for an amount that would satisfy the full amount owed. This is often an option when a homeowner is “upside-down” with negative equity and requires lender cooperation.