The Foreclosure Process in North Carolina

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North Carolina Foreclosure Process

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A foreclosure proceeding is usually instituted when a homeowner is behind on his/her mortgage payments (i.e. in default) and the mortgage lender (usually a bank) wants to take the property back from the homeowner(s). The lender's right to foreclose is normally contained in the mortgage documents you signed when you first took out the loan to purchase the property.

Your mortgage documents also establish a "trustee". The trustee is a neutral party whose function includes verifying that you get the deed to the property when your loan is paid off. The trustee's function also includes verifying that the lender gets the deed to the property back (normally through foreclosure) if you do not repay the loan as agreed upon.

The North Carolina statute dealing with foreclosures is N.C. General Statute Chapter 45 Article 2A. In a foreclosure proceeding, the property is sold either back to the mortgage lender or to a third party. When the foreclosure takes place, the ownership interest in the property is transferred from the homeowner(s) to the party who purchased the property at the foreclosure sale.

The Foreclosure Hearing

When you are behind on your mortgage, the lender will instruct the trustee to foreclose. After verifying that you are behind, the trustee then files a "special proceeding" at the county courthouse and also sends you notice. A "foreclosure hearing" is held first and takes place at the county courthouse. Normally, your mortgage lender will have their attorneys at your hearing to present legal arguments against you and why your foreclosure sale date should be set. If the lender's attorneys are successful at the foreclosure hearing, the Court will then set a date and time for the foreclosure sale.

However, there are valid legal grounds for having your foreclosure hearing and/or sale continued or cancelled. Before a foreclosure sale date can be set, the lender's attorneys must prove various legal elements. Our experienced foreclosure defense attorneys are intimately familiar with each of the elements required, and are often able to present legal arguments, on your behalf, which prevent or postpone a foreclosure sale date from being entered!

We are able to get you additional time and assistance needed to:

  • Try to get your mortgage loan current
  • Get your mortgage loan modified
  • Address any payment discrepancies
  • Get payoff & reinstatement figures
  • File bankruptcy to either keep your home or avoid later being sued for a deficiency claim if the home is eventually foreclosed.

The Foreclosure Sale

If the court rules that your foreclosure sale should proceed, the sale date is set at least 20 days later. However, just as in the foreclosure hearing, the lender's attorneys must satisfy various legal elements before a foreclosure sale can proceed. Our attorneys know the legal elements needed and how to challenge a foreclosure sale date in order to get it cancelled or postponed. Even if your foreclosure sale date has already been scheduled, you still have legal options available which could enable you to keep your home!

Postponement of the Foreclosure Sale

You should never assume that your property was sold just because the foreclosure sale date has passed! You could still possibly have time to take actions to keep your property. Foreclosure sales do not always go forward as originally scheduled. If your foreclosure sale date has already passed, you sould call your mortgage lender and ask if the foreclosure sale was completed. If the sale was not completed, you should call us immediately!

10 Day "Upset Bid" Period After the Foreclosure Sale

After a property is sold at a foreclosure sale, the trustee files a "report of sale" with the Clerk's office. Once this occurs, there is then a 10 day upset bid period wherein other purchasers are able to outbid whoever purchased your property. This upset bid period can be very important if you plan on filing a Chapter 13 bankruptcy to save your home.

In a Chapter 13 bankruptcy, your mortgage arrearages (i.e. back mortgage that you owe) are not all due immediately. Instead, they are "spread out" over a 36-60 month period thereby making it more affordable. If this is the case, your bankruptcy case must be filed before the end of the upset bid period! Once the upset bid period ends, the trustee will then file the final sale documents with the Clerk and deliver the deed to the purchaser. At this point, it's too late to keep your home through a Chapter 13 bankruptcy.

Take Immediate Action

Your best chance at protecting your home from a foreclosure is by taking immediate legal action. At Saffa Law Group, our Charlotte foreclosure defense attorneys know that what you need most is time, and we have the legal knowledge and resources that can help you get it. Call today to schedule a free case evaluation, in which we can discuss your legal options and begin your journey to financial relief.

Call to speak with one of our attorneys and discover what options are available to you.


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