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Tag Archives: Trustee

Trusts & Estates – Civil Practice – Statute of Limitations – First Impression – Continuing Wrong Doctrine – Inapplicable (access required)

Robert K. Ward Living Trust v. Peck : The plain language of G.S. § 36C-10-1005 indicates that the continuing wrong doctrine does not apply in this case. Once defendant resigned as trustee, his acts as trustee ended; at that point, the five-year statute of limitations in § 36C-10-1005 began to run.

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Tort/Negligence – Real Property – Mortgages – Trustee – Breach of Fiduciary Duty Claim – No ‘Bad Faith’ Allegation (access required)

Evans v. Neill In their breach of fiduciary duty claim against the trustee of their deed of trust, plaintiffs did not allege that the trustee acted in bad faith. Although plaintiffs alleged a breach of the duty to properly service notice upon plaintiffs prior to foreclosing and selling the mortgaged property, the complaint failed to explain how the trustee’s error in serving notice constituted a failure of the duty to exercise good faith and due regard to plaintiffs’ interest. We affirm the trial court’s grant of the trustee’s motion to dismiss the breach of fiduciary duty claim.

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Real Property – Foreclosure – Substitute Trustee – Notice – Subprime Loans (access required)

In re Foreclosure of Gilmore. The trial court erred when it allowed the substitute trustee to proceed with foreclosure where a person signed a notice in her individual capacity and not on behalf of the substitute trustee, and therefore was not authorized to give notice to the borrowers, and where the trial court failed to make a required finding of whether the underlying loan was a subprime loan as defined in the applicable statute.

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Unauthorized trustee gives homeowners temporary reprieve (access required)

A Winston-Salem property owner will avoid foreclosure for the time being because a Forsyth County trial court failed to make a required finding in the owner's appeal of a clerk's decision to allow the foreclosure to proceed, according to an unpublished Court of Appeals ruling. The trial court should have determined whether the property owner's loan was a subprime loan as defined under G.S. § 45-101(4), and if it was, it should have determined whether a pre-foreclosure notice described in G.S. § 45-102 was provided and whether the periods of time established by law had elapsed, the panel said. Because it did not, the Court of Appeals reversed the trial court's order.

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