The following definitions apply throughout this Article:
(1) Act as a mortgage servicer. - To engage, whether for compensation or gain from another or on its own behalf, in the business of receiving any scheduled periodic payments from a borrower pursuant to the terms of any mortgage loan, including amounts for escrow accounts, and making the payments of principal and interest and such other payments with respect to the amounts received from the borrower as may be required pursuant to the mortgage loan, the mortgage servicing loan documents, or servicing contract.
(1a) Repealed by Session Laws 2010-168, s. 1, effective November 1, 2010.
(1b) Home loan. - A loan that has all of the following characteristics:
a. The loan is not (i) an equity line of credit as defined in G.S. 24-9, (ii) a construction loan as defined in G.S. 24-10, (iii) a reverse mortgage transaction, or (iv) a bridge loan with a term of 12 months or less, such as a loan to purchase a new dwelling where the borrower plans to sell a current dwelling within 12 months.
b. The borrower is a natural person.
c. The debt is incurred by the borrower primarily for personal, family, or household purposes.
d. The principal amount of the loan does not exceed the conforming loan size limit for a single-family dwelling as established from time to time by Fannie Mae.
e. The loan is secured by (i) a security interest in a manufactured home, as defined in G.S. 143-145, in the State which is or will be occupied by the borrower as the borrower's principal dwelling, (ii) a mortgage or deed of trust on real property in the State upon which there is located an existing structure designed principally for occupancy of from one to four families that is or will be occupied by the borrower as the borrower's principal dwelling, or (iii) a mortgage or deed of trust on real property in the State upon which there is to be constructed using the loan proceeds a structure or structures designed principally for occupancy of from one to four families which, when completed, will be occupied by the borrower as the borrower's principal dwelling.
f. A purpose of the loan is to (i) purchase the dwelling, (ii) construct, repair, rehabilitate, remodel, or improve the dwelling or the real property on which it is located, (iii) satisfy and replace an existing obligation secured by the same real property, or (iv) consolidate existing consumer debts into a new home loan.
(1c) Housing Finance Agency. - The North Carolina Housing Finance Agency.
(2) Mortgage lender. - A person engaged in the business of making mortgage loans for compensation or gain.
(3) Mortgage servicer. - A person who directly or indirectly acts as a mortgage servicer as that term is defined in subdivision (1) of this section or who otherwise meets the definition of the term "servicer" in the Real Estate Settlement Procedures Act, 12 U.S.C. § 2605(i), with respect to mortgage loans.
(3a) Repealed by Session Laws 2010-168, s. 1, effective November 1, 2010.
(4) Repealed by Session Laws 2010-168, s. 1, effective November 1, 2010. (2008-226, s. 1; 2009-457, s. 3; 2010-168, ss. 1, 9; 2011-288, s. 1; 2012-79, s. 2.17(g).)
Notes of Decisions
In Re the Foreclosure of a Deed of Trust, 738 S.E.2d 173 (N.C. 2013).
· cites it 3× “We observe that there was a fifth requirement, effective until October 31, 2010, that the clerk find that the underlying loan was not a subprime loan under N.C.G.S. § 45-101(4), and that if it was a subprime loan, that notice was given under N.”
In Re Goddard & Peterson, PLLC, 789 S.E.2d 835 (N.C. Ct. App. 2016).
“At the hearing, the lender must prove and establish the following six criteria before the clerk of court may authorize the mortgagee or trustee to proceed with the foreclosure under a power of sale: (i) [a] valid debt of which the party seeking to foreclose is the holder, (ii)…”
In re: Frucella, 821 S.E.2d 249 (N.C. Ct. App. 2018).
· cites it 2× “If the clerk finds the existence of (i) valid debt of which the party seeking *636 to foreclose is the holder , (ii) default, (iii) right to foreclose under the instrument, (iv) notice to those entitled to such under subsection (b), (v) that the underlying mortgage debt is not a…”
Johnson v. Bac Home Loans Servicing, LP, 867 F. Supp. 2d 766 (E.D.N.C. 2011).
“(5) [ ] The underlying mortgage debt is not a subprime loan as defined in G.S. 45-101(4). STS Am. Ans., Ex. N [DE-64.”
In re Foreclosure of Real Prop. Under Deed of Trust from Young, 744 S.E.2d 476 (N.C. Ct. App. 2013).
· cites it 2× “seeking to foreclose is the holder; (2) the existence of default; (3) the trustee’s right to foreclose under the instrument; (4) the sufficiency of notice of hearing to the record owners of the property; (5) the sufficiency of pre-foreclosure notice under section 45-102 and the…”
Howse v. Bank of Am., N.A., 804 S.E.2d 552 (N.C. Ct. App. 2017).
· cites it 2× “16(d) : (1) the existence of a valid debt of which the party seeking to foreclose is the holder; (2) the existence of default; (3) the trustee's right to foreclose under the instrument; (4) the sufficiency of notice of hearing to the record owners of the property; (5) the…”
Greene v. Tr. Servs. Of Carolina, LLC, 781 S.E.2d 664 (N.C. Ct. App. 2016).
“16(d) provides that the clerk of court shall conduct a hearing and may not authorize a foreclosure sale if he or she finds that there does not exist any one of the following: *588 (i) [a] valid debt of which the party seeking to foreclose is the holder, (ii) default, (iii) [a]…”
In Re Cornblum, 727 S.E.2d 338 (N.C. Ct. App. 2012).
· cites it 2× “That hearing is very narrow in scope: 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, (iv) notice to those entitled to such under subsection (b), (v) that the…”
In Re Carter, 725 S.E.2d 22 (N.C. Ct. App. 2012).
· cites it 3× “The clerk issued an order allowing the foreclosure sale to proceed based on, inter alia, the following findings: (1) there was a valid debt of which petitioner was the holder; (2) respondents defaulted on the debt; (3) the DOT authorized a power of sale; (4) all parties were…”
Thompson v. Bank of Am., N.A., 776 S.E.2d 897 (N.C. Ct. App. 2015).
· cites it 2× “a foreclosure under a power of sale, the Clerk may authorize a sale if he or she finds the existence of six factors: (i) valid debt of which the party seeking to foreclose is the holder, (ii) default, (iii) right to foreclose under the instrument, (iv) notice to those entitled…”
In re: Collins, 797 S.E.2d 28 (N.C. Ct. App. 2017).
“At the hearing, the petitioner must present evidence that establishes the following six criteria before the clerk of court may authorize the trustee to proceed with the foreclosure under a power-of-sale provision: (i) [a] valid debt of which the party seeking to foreclose is the…”
— N.C. Gen. Stat. § 45-101(1b) — 14 cases
In Re Goddard & Peterson, PLLC, 789 S.E.2d 835 (N.C. Ct. App. 2016).
“At the hearing, the lender must prove and establish the following six criteria before the clerk of court may authorize the mortgagee or trustee to proceed with the foreclosure under a power of sale: (i) [a] valid debt of which the party seeking to foreclose is the holder, (ii)…”
In re: Frucella, 821 S.E.2d 249 (N.C. Ct. App. 2018).
“If the clerk finds the existence of (i) valid debt of which the party seeking *636 to foreclose is the holder , (ii) default, (iii) right to foreclose under the instrument, (iv) notice to those entitled to such under subsection (b), (v) that the underlying mortgage debt is not a…”
Greene v. Tr. Servs. Of Carolina, LLC, 781 S.E.2d 664 (N.C. Ct. App. 2016).
“16(d) provides that the clerk of court shall conduct a hearing and may not authorize a foreclosure sale if he or she finds that there does not exist any one of the following: *588 (i) [a] valid debt of which the party seeking to foreclose is the holder, (ii) default, (iii) [a]…”
In Re Cornblum, 727 S.E.2d 338 (N.C. Ct. App. 2012).
“That hearing is very narrow in scope: 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, (iv) notice to those entitled to such under subsection (b), (v) that the…”
In Re Carter, 725 S.E.2d 22 (N.C. Ct. App. 2012).
“The clerk issued an order allowing the foreclosure sale to proceed based on, inter alia, the following findings: (1) there was a valid debt of which petitioner was the holder; (2) respondents defaulted on the debt; (3) the DOT authorized a power of sale; (4) all parties were…”
— N.C. Gen. Stat. § 45-101(4) — 3 cases
In Re the Foreclosure of a Deed of Trust, 738 S.E.2d 173 (N.C. 2013).
“We observe that there was a fifth requirement, effective until October 31, 2010, that the clerk find that the underlying loan was not a subprime loan under N.C.G.S. § 45-101(4), and that if it was a subprime loan, that notice was given under N.”
Johnson v. Bac Home Loans Servicing, LP, 867 F. Supp. 2d 766 (E.D.N.C. 2011).
“(5) [ ] The underlying mortgage debt is not a subprime loan as defined in G.S. 45-101(4). STS Am. Ans., Ex. N [DE-64.”
— N.C. Gen. Stat. § 45-101(lb) — 3 cases
In re Foreclosure of Real Prop. Under Deed of Trust from Young, 744 S.E.2d 476 (N.C. Ct. App. 2013).
“seeking to foreclose is the holder; (2) the existence of default; (3) the trustee’s right to foreclose under the instrument; (4) the sufficiency of notice of hearing to the record owners of the property; (5) the sufficiency of pre-foreclosure notice under section 45-102 and the…”
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