How the foreclosure process works in N.C.
By Christine Rexrode
Posted: Sunday, Oct. 31, 2010
If you're afraid that you're about to fall behind on your mortgage, you should contact your bank as soon as possible to try to work out a new payment plan. You should also talk to a HUD-approved counselor, even if the bank has already started foreclosure proceedings against you. You should be able to negotiate with your bank up until the final sale date. See www.ncforeclosurehelp.org for more information.
A house doesn't go into foreclosure as soon as a borrower misses a payment. It can take months or even years from the time that the borrower first defaults until the house is actually repossessed and the borrower is required to leave.
North Carolina's Administrative Office of the Courts calculates there were nearly 53,000 foreclosures started in the state through the end of September, but not all of those will end in actual foreclosure sales or repossessions. The N.C. Commissioner of Banks' office estimates that about half of the foreclosure starts in North Carolina actually become foreclosure sales.
Here's how the foreclosure process works in North Carolina.
The borrower defaults on his mortgage payment, and the bank starts sending letters threatening foreclosure action. Typically, the bank waits about 90 days before referring the case to the trustee. The trustee is a person, usually a lawyer, who is supposed to be an impartial party who makes sure that everyone in the foreclosure process is notified correctly.
The trustee notifies the borrower that he is going to file foreclosure papers, then files at the county courthouse and gives the homeowner notice that there will be a hearing at the Clerk of Court's office.
At the hearing, the trustee must prove that there is a debt, that the borrower is in default, that the mortgage agreement gives the bank the right to foreclose, and that the homeowner has been properly notified. The borrower can appeal if he can show that the trustee can't prove one of these facts.
(If the homeowner has some other line of defense - for example, he might say that the bank hired debt collectors who harassed him - then he has to file a separate lawsuit and get an injunction to stop the foreclosure filing from moving forward in the Clerk of Court's office.)
North Carolina law also requires the bank to show that it has tried to resolve the delinquent loan without resorting to foreclosure; usually, this means it has to show that it tried to work out a mortgage modification with the borrower. The clerk can grant an extension of up to 60 days if she believes that a mortgage modification could probably be worked out.
If the clerk allows the foreclosure to move forward, then the trustee posts a notice of sale at the courthouse and publishes another notice in the newspaper, usually the Mecklenburg Times. The trustee must also notify the homeowner.
The foreclosure sale is conducted by the trustee at the courthouse. In Mecklenburg, the sales happen in a designated area on the first floor. Anybody can bid at the sale. The bank usually bids the amount it is owed, although sometimes it will bid less to try to stir up interest in the property.
The trustee files a report of sale at the courthouse. There is a 10-day "upset bid period" where anyone can place a higher bid, as long as it is at least 5 percent more than the previous bid. The borrower can also file at any time for Chapter 13 bankruptcy protection, which will temporarily stop foreclosure proceedings.
If no upset bids are placed, the trustee files the final sale report and the delinquent borrower must leave the house. If the bank is the new owner, the property is called bank-owned or real-estate-owned. Most people who buy foreclosure properties buy them from the bank, rather than at the courthouse sale.
Sources: Mecklenburg County Clerk of Court’s office, N.C. Commissioner of the Banks’ office, Charlotte attorney G. Martin Hunter, Charlotte attorney Peter J. Underhill
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