North Carolina Amends Provisions Regarding Real Property and Notice of Foreclosure Sale Cancellations
North Carolina Amends Provisions Regarding Real Property
The state of North Carolina has recently enacted House Bill 852, which makes changes to various real property statutes as recommended by the Real Property Section of the North Carolina Bar Association, and which regulates the solicitation fees for copies of documents recorded with the registers of deeds offices. Provisions in this bill range from becoming effective immediately to becoming effective on October 1, 2018.
Part I: Mortgage and Deed of Trust Changes
Section 1.1 of the bill clarifies that in a purchase-money mortgage transaction, the buyer’s spouse is not required to sign the mortgage instrument or deed of trust regardless of whether the secured party is the seller or a third-party lender.
Section 1.2 clarifies the fee for recording subsequent instruments related to mortgages or deeds of trust. For instruments for which there is no other specific provision, the recording fee is $26 for the first 15 pages and $4.00 for each additional page. The fee for filing a deed of trust or mortgage is $64 for the first 35 pages and $4 for each additional page. There is no fee for recording records of satisfaction or the cancellation of record of deeds of trust or mortgages.
Part II: Probate and Registration Changes
Section 2.1 of the bill clarifies that requiring the drafter’s name on the first page of an instrument as a requirement for recording applies only to a deed or deed of trust. This section also adds language requiring the register of deeds to accept written representations regarding the licensing status of the attorney who drafted the deed or deed of trust.
Section 2.2 adds additional corporate officials whose signatures, when appearing on the face of instruments recorded in the register of deeds, are deemed as valid as if authorized directly by a board of directors. This section clarifies that the statute applies to limited liability companies and makes other technical changes.
Part III: Regulate Solicitation of Copies
Section 3.1 regulates any person, firm, or corporation soliciting a fee in exchange for providing a copy of a record available at the register of deeds office. The bill requires that the solicitation must contain a conspicuous statement at the top of the solicitation stating: that the solicitation is not from a State agency or a local unit of government; that no action is legally required by the person being solicited; the fee for obtaining a copy of the record directly from the register of deeds that has custody of the record; the information necessary to contact the register of deeds that has custody of the record; and the name and physical address of the person, firm, or corporation soliciting the fee. The solicitation may not contain language designed to make the solicitation appear to be issued by a State agency or local unit of government, or to appear to impose a legal duty on the person being solicited. The fee may not be greater than four times the amount the register of deeds would charge for a copy of the same record.
North Carolina Amends Provisions Regarding Notice of Foreclosure Sale Cancellations
The state of North Carolina amended its provisions regarding the notice of foreclosure sale cancellations. These provisions are effective on July 1, 2018 and apply to foreclosure sales noticed on or after that date.
The updated provisions allow for anyone exercising a power of sale to postpone a foreclosure sale to a certain day not later than 90 days (exclusive of Sundays and legal holidays) after the original date for the sale, under certain conditions. These situations include when there are no bidders, or when in his or her judgment, the number of prospective bidders at the sale is substantially decreased by inclement weather or by any casualty. The person exercising the power of sale may also postpone when there are so many other sales advertised to be held at the same time and place as to make it inexpedient and impracticable to hold the sale on that day. Finally he or she may postpone a sale when he or she is unable to hold the sale because of illness, or when other good cause exists.
The person exercising a power of sale may postpone the sale more than once whenever any of the above conditions are met, so long as the sale is held not later than 90 days (exclusive of Sundays and legal holidays) after the original date for the sale.
Once a sale is postponed, the person exercising the power of sale has several duties. He or she (or his or her agent or attorney) must publicly announce the postponement of the sale at the time and place advertised for the sale. On the same day, he or she must also attach a notice of the postponement to the original notice of sale or a copy that is posted at the courthouse door. Finally, he or she must give written or oral notice of postponement to each party entitled to notice of sale under G.S. 45-21.17. The notice of postponement must state that the sale is postponed, state the hour and date to which the sale is postponed, state the reason for the postponement, and must be signed by the person authorized to hold the sale (or by his agent or attorney).
The provisions also specify the timing of foreclosure sales, specifying that a sale shall be held between the hours of 10:00 A.M. and 4:00 P.M. on any day on which the Clerk’s office is normally open for transactions. In addition, a sale must begin at the time designated in the notice of sale or as soon thereafter as practicable, but not later than one hour after the time specified unless it is delayed by other sales held at the same place.
If the person exercising the power of sale determines that the sale cannot be held, or is postponed, then the person exercising the power of sale must immediately, and prior to the scheduled time of the sale, deliver a written notice to the Clerk of Superior Court that is to include all of the following: the case number assigned by the Clerk; he mortgagor(s) and record owner(s) name(s); the United States Postal Service address of the property or, if no address has been assigned, a brief description of the location of the property; the originally scheduled date and time for the sale; and a statement that the foreclosure sale has been withdrawn, rescheduled for a specific date and time, or postponed with no date yet set, as appropriate.
When such notice is not received by the Clerk prior to the scheduled time of the sale, then the person exercising the power of sale must personally, or through his or her agent or attorney, do all of the following: at the time and place advertised for the sale, publicly announce the cancellation thereof; on the same day, attach to or enter on the original notice of sale or a copy thereof, posted at the courthouse door, as provided by G.S. 45-21.17, a notice of the cancellation; Give written or oral notice of cancellation to each party entitled to notice of sale under G.S. 45-21.17; and hand-deliver the written notice required under subdivision (2) of this subsection to the Clerk’s office.
Zachary Pearlstein, JD, is a Regulatory Compliance Director with CLA's Mortgage Advisory Division. He joined CLA on January 1, 2014, as part of its acquisition of Bankers Advisory, Inc. Zachary oversees Mortgage Advisory's regulatory compliance team, which focuses on federal and state compliance, fair lending, and the Home Mortgage Disclosure Act (HMDA). He is a graduate of Brandeis University and earned his juris doctor at Suffolk University Law School. He is admitted to the Massachusetts Bar.
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