Foreclosure Defense in Durham, NC
Are you currently facing a threat of foreclosure in Durham, North Carolina or are already going through proceedings? Consult with an experienced foreclosure defense lawyer to find out what your options are to save your home.
What Is Foreclosure?
The process begins when an Durham, NC homeowner does not make a mortgage payment. In North Carolina, the loan servicer typically can’t begin a foreclosure until 120 days of payment delinquency have passed. If after this time, the homeowner has not resolved the payment issue, the lender can begin to foreclose on the house. The home is sold to recover the losses caused by the owner being unable to pay their mortgage as stipulated in the mortgage contract.
Foreclosure By Power of Sale
The power of sale is a clause in the mortgage or deed of trust. It states that the lender can foreclose without court oversight. According to the North Carolina Judicial Branch, both judicial and power of sale foreclosure methods are available in Durham. A power of sale foreclosure is a contractual right under the terms of a deed of trust. Consequently, most lenders in Durham might prefer the power of sale method since it is quicker and cheaper. However, a power of sale foreclosure may not proceed unless authorized by a court after a hearing. If the lender can prove that you meet these criteria, they can sell the foreclosed home.
Foreclosure By Judicial Sale
Foreclosure by judicial sale involves the sale of a mortgaged property under the supervision of the court. The court proceedings work first to satisfy the mortgage, then to satisfy the lien holders, and then to the lender. Foreclosure by judicial sale requires the lender to navigate the legal process carefully to ensure anyone who buys the foreclosed property legally owns the title.
Types of Foreclosure Defenses
If you’re in the process of foreclosure, you’ll want to do everything in your power to stop the foreclosure. Here are common foreclosure defenses your Durham attorney might recommend.
The Bank Didn’t Follow State Procedures
The foreclosure process is complicated and time-consuming; oftentimes, that leads to errors. If the bank or other lender didn’t follow Durham, North Carolina foreclosure procedures, you might have a good case for stopping the foreclosure.
The Mortgage Servicer Made Mistakes
It is possible for mortgage services to make mistakes when handling homeowners’ accounts. Here are some of the most common mistakes to look out for:
- Dual tracking, which means pursuing foreclosure at the same time a different loan modification is pending
- Sending your mortgage payments to the wrong party
- Overstating the amount of money you owe for your mortgage payments
- Imposing excessive fees for late payments that weren’t stipulated in the mortgage contract
If you think the mortgage servicer made these or other mistakes, contact an attorney in Durham, NC right away to help you stop the foreclosure process. This is one of the best options available to help you save your home.
You’re on Active Duty
The Servicemembers Civil Relief Act (SCRA) provides special protections to people who are on active duty. This prevents lenders in Durham from being able to foreclose your home without a proper court proceeding. It allows you to provide a defense with the help of an experienced foreclosure attorney.
The main protection is if you took out your mortgage prior to being on active duty, the foreclosure proceedings must occur in court even if that is not the norm unless you sign a waiver for the lender.
The Foreclosing Party Lacks “Standing”
The foreclosing party is the party that owns the loan. If the lender can’t prove that they own the loan, then that means they lack “standing”. They then can’t foreclose the home.
This actually happens a lot because banks often bundle your loan with other loans and sell them to other banks or investors. This can make it difficult to track who exactly owns the loan for your house.
The Statute of Limitations Has Passed
The statute of limitations protects homeowners from foreclosure if a significant amount of time has passed since they stopped making their mortgage payments. Believe it or not, some mortgages or missed payments do slip through the cracks.
According to the North Carolina General Assembly there is a 10-year statute of limitations on a foreclosure action. The statute has typically begun the ten-year period from the date of last payment. However, a recent North Carolina Court decision held that this statute of limitations begins on the date of maturity of the loan. This could potentially cause a lender in Durham to delay foreclosure until property values increase.
Additional Foreclosure Defenses
Here are some less common foreclosure defense options:
- You’re already making payments on a loan modification, which means the foreclosure should not have been initiated.
- You believe the lender violated federal regulations if you have a VA, USDA, or FHA loan.
- You never received a breach of contract letter from the lender informing you of the violation of your mortgage contract or deed of trust.
Preparing for the Foreclosure Defense Process
When an attorney takes on your case in Durham, North Carolina, it’s important to remember that there are no guarantees that you’ll win, but your chances just climbed higher. Each foreclosure case is unique and requires a deep understanding of your state’s foreclosure laws. A good attorney knows how to navigate the court system and will help you find any and all loopholes that can work to your advantage.
If you live in a state where foreclosures always happen in civil court, your attorney will simply bring any issues with the foreclosure up to the judge. If you live in a state where foreclosures typically happen outside of the court system, you and an attorney may have to start the judicial process by filing a lawsuit against the at-fault party. The Durham County Clerk of Superior Court has authority to authorize or deny a power of sale foreclosure in Durham. A judicial foreclosure action will be filled in either the Durham County Superior or District Court, depending on the property value. A judge in a judicial foreclosure has broader jurisdiction and authority than the clerk does in a power of sale foreclosure. Even if you cannot stop the case, the attorney can help you stall the process while you get your affairs in order.
Work with an Experienced Foreclosure Defense Lawyer in Durham, North Carolina
Even if you feel you don’t have a viable case, an attorney may find solid grounds for fighting the foreclosure. Consulting with an Durham, NC attorney is an objective way to find out if your case is worth going to court. Most first-time consultations with a lawyer are free, which means there’s no risk involved.
Take the first big steps toward fighting to keep your home. You can also delay the process for as long as possible until you find a new one. We can even help you connect with an attorney across North Carolina state lines.
Submit a request online or call us today at (866) 345-6784 to get in touch with an experienced lawyer in your area!