Foreclosure: Fighting for your home
By: Mary Ella Hutchinson, Guest writer to Paper Bullets
In our last article, the Franklin County, NC Foreclosure Fraud Task Force gave you a brief synopsis of what is going on with foreclosures that makes them questionable.
Now we would like to get down to what you can actually do in your own situation if you are facing foreclosure.
The clerks’ of court throughout North Carolina take direction from the AOC (Administrator of the Courts). The AOC is not an elected body, only an administrative body.
Your clerk of court is elected by the people and she/he alone has the power to make rulings according to General Statutes as they pertain to foreclosures.
There are several elements the clerk of court must find in order to sign an order for sale.
The first and most important element is that there is a debt, and the party bringing the foreclosure is the owner of that debt/note of obligation.
Unfortunately, our AOC and clerks throughout the state often fail to properly address or simply ignore that element, and go straight to whether or not a default has actually occurred.
The Task Force has dealt with this issue most actively, and will continue to do so. In our opinion, and based on many, many court cases in the state, and throughout the country with this issue, overwhelming evidence shows that the majority of foreclosures are not being brought by the party owning the note.
This is where the homeowner has the best chance of succeeding in keeping their home.
According to the Clerk’s Manual and North Carolina law, every homeowner has the right to contest their foreclosure based on this issue. They/you can demand proof of the fact that the party bringing the action is the true party in interest, and has a right to take the action.
To do this, the homeowner should always exercise this right. Experience shows banks will not openly volunteer this information.
Contest the foreclosure at the hearing you attend, and demand strict proof of this one element. The homeowner must actually say to the clerk, “I contest this foreclosure” based on the premise that we need proof of what is being presented at the hearing.
At that point, the clerk is required to stop the hearing and continue it until someone from the bank can come in and show proof. That proof, most of the time, will be the original note that was signed at the initial loan closing.
This is also where things get a little tricky in that the bank will most likely bring in a note that is endorsed “in blank” and the clerk will look at it and say, well, “it is bearer paper” and that is proof.
It is also not quite that simple, but our current system ignores other statutes contained in the Uniform Commercial Code.
This is where it gets very complicated and the Task Force strongly recommends that you consult legal counsel who is well versed in foreclosure matters.
We also strongly recommend that you contact Legal Aid of NC or the NC Justice Center for help. Legal Aid of NC does not charge for its services, nor does the NC Justice Center.
They are non-profits and will evaluate your situation and hopefully represent you. If you want private counsel, there are other attorneys in our area well versed in this area; be sure to engage only those that specialize with foreclosures.
Many times, homeowners are in the situation where the bank will no longer accept your payment and the homeowner may, as a result, have discretionary income to pay an attorney on a monthly basis. This is something we are seeing occur more frequently and is a viable option for many homeowners.
In our next article, we will take a look at some of the “fraud” that we are seeing being presented by some banks to take someone’s home. It is there; it is blatant and can certainly be challenged. This is an area where reviewing North Carolina case law can be of great value to you if you are facing foreclosure of your home.
The Franklin County Foreclosure Fraud Task Force will stay in this fight, and from time to time will update you as things develop.
Until then, remember don’t just give up, never just move out, fight for your home.
“We the People” is meeting at Johnny Bulls in Louisburg at 7 p.m. Thursday, Aug. 7. Social starts 6 p.m. This is a nonpartisan patriot group. Everyone is invited.
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