Foreclosure Defense

We help those facing foreclosure actions. If a resolution cannot be worked out through negotiation, the lender may begin the foreclosure process. A brief summary of the most common process for residential loans in North Carolina is: Notice to the debtor; filing a foreclosure action with the Clerk of Court; a somewhat informal hearing before the Clerk; if the statutory requirements are met, the Clerk issues an Order of Sale; after 20 days, the property is sold at public auction. This is not the only process, but the most common.

There are several possible ways to challenge the foreclosure process. The first is to challenge the action at the Clerk hearing. If the Clerk issues and Order of Sale, that order can be appealed. Another method is to file a lawsuit against the lender on some reasonable basis, and to ask that the Order of Sale be “stayed” (put on hold) pending hearing the lawsuit.

Each situation is different, and will require a review of the situation and the documentation to determine what, if anything, is the best possible course of action.

Personal Guaranty

Also known as a “personal guarantee,” these often arise in the area of business loans or leases, but can also arise in individual matters (e.g., a parent giving a guaranty for their child to obtain a loan or a lease). For example, Person A owns Business B; Business B gets a loan, but the bank requires Person A to give a personal guaranty; the business cannot pay the loan; the bank sues Person A on the personal guaranty. Many times the person giving a personal guaranty does not realize that they are signing such an important document, likely because they will sign anything to get the loan. Only later does the importance of that document arise, when someone’s personal assets are suddenly at risk.

The language of the personal guaranty documents demanded by lenders is often very strongly in the favor of the lender. However, there are defenses, and there are ways to address minimizing the impact on the person (or entity) giving the guaranty. Again, each situation is different, and will require a review of the situation and the documentation to determine the best course of action.

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