I am putting my head in the books, and statutes, and cases, and I will be prepared as well as I possibly can.
Here is what I know re the NC statutes concerning foreclosure hearings:
§ 45-21.16(d) The hearing provided by this section shall be held before the clerk of court in the county where the land, or any portion thereof, is situated. In the event that the property to be sold consists of separate tracts situated in different counties or a single tract in more than one county, only one hearing shall be necessary. However, prior to that hearing, the mortgagee or trustee shall file the notice of hearing in any other county
where any portion of the property to be sold is located.
Upon such hearing, the clerk shall consider the evidence of the parties and may consider, in addition to other forms of evidence required or permitted by law, affidavits and certified copies of documents. If the clerk finds the existence of (i) valid debt of which the party seeking to foreclose is the holder, (ii) default, (iii) right to foreclose under the instrument, and (iv) notice to those entitled to such under subsection (b), .then the clerk shall authorize the mortgagee or trustee to proceed under the instrument, and the mortgagee or trustee can give notice of
and conduct a sale pursuant to the provisions of this Article. A certified copy of any authorization or order by the clerk shall be filed in any other county where any portion of the property to be sold is located before the mortgagee or trustee may proceed to advertise and sell any property located in that county. In the event that sales are to be held in more than one county, the provisions of G.S. 45-21.7 apply.
(d1)The act of the clerk in so finding or refusing to so find is a judicial act and may be appealed to the judge of the district or superior court having jurisdiction at any time
within 10 days after said act. Appeals from said act of the clerk shall be heard de novo. If an appeal is taken from the clerk's findings, <font color=red>the appealing party shall post a bond with sufficient surety as the clerk deems adequate to protect the opposing party from any probable loss by reason of appeal; and upon posting of the bond the clerk shall stay the foreclosure pending appeal.[/color]
(e) In the event of an appeal, either party may demand that the matter be heard at the next succeeding term of the court to which the appeal is taken which convenes 10 or more days after the hearing before the clerk, and such hearing shall take precedence over the trial of other cases except cases of exceptions to homesteads and appeals in summary ejectment actions, provided the presiding judge may in his discretion postpone such hearing if the rights of the parties or the public in any other pending case require that such case be heard first. In those counties where no session of court is scheduled within
30 days from the date of hearing before the clerk, either party may petition any regular or special superior court judge resident in a district or assigned to hold courts in a district
where any part of the real estate is located, or the chief district judge of a district where any part of the real estate is located, who shall be authorized to hear the appeal. A certified copy of any order entered as a result of the appeal shall be filed in all counties where the notice of hearing has been filed.
I see a lot of positives in this statute.
1. Clerk must find existence of valid debt, which he cannot without a sworn statement, and even then, the note is fraudulent. This is the most important thing, right Jerseee? Verify the debt. He cannot verify it, nor can the bank, or the trustee, or the attorney acting for the trustee or bank.
2. The party seeking to foreclose must be the holder. This is not the case. If they are the holder, they can produce the note. All they have now is a forged copy of the note. I believe that Freddie Mac is the holder, but not of an original, unaltered note.
3. Clerk must have evidence of default. I have recorded at the Recorder of deeds a copy of the CPN that I sent to the Bank for this alleged loan paid in full. I sent that in June. I will have a certified copy with me.
The bank won't be happy to see me pull that out, because it defeats default.
4. Clerk must find the right to foreclose under the instrument. He cannot find the right to foreclose under the instrument if it is a forgery and fraudulent.
The Clerk of court here will have to break all the rules to find for the bank, but I am preparing myself for the fact that he still may rule for the bank.
NC is a non judicial state,
but this can be appealed de novo, as is stated above. Then we're really gonna have fun, but what I am wondering, and the statute doesn't reference any more available appeals,. can I appeal the judges decision as well to a trial?
One thing that concerns me is the above mentioned bond. I somply cannot afford a bond. Hmmm. Can one use their remedy in HJR 192 for the bond?
