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Tag Archives: Unenforceable

Real Property – Civil Practice – Jurisdiction – Trusts & Estates – Promissory Note & Deed of Trust – Foreclosure (access required)

In re Foreclosure of Manning When respondent’s husband died and Bank of America did not file a claim against his estate, the clerk of court entered an order ruling the husband’s promissory note to the bank unenforceable. However, since respondent had mortgaged her separate property as security for the note, and since such property was not part of the husband’s estate, the clerk of court in the estate matter lacked jurisdiction to rule that “any related deed of trust on property not owned by the Estate that secures such loan shall be satisfied.”

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Criminal Practice – Plea Agreement – Sentencing – Unenforceable (access required)

State v. Rico Where Judge Steelman dissented on the grounds that essential and fundamental terms of the plea agreement were unfulfillable and that defendant could not repudiate part of the plea agreement without repudiating the whole, we reverse the decision of the Court of Appeals for the reasons stated in the dissent. We reverse in part and remand for a new trial on the original charge of murder.

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Domestic Relations – Separation Agreement – Oral – Unenforceable (access required)

Marks v. Marks Where the parties were separated and intended to live separate and apart forever when they entered into an oral contract, and where the contract involves payments for spousal support and from the sale of marital or divisible property, the contract was governed by G.S. § 52-10.1. Because the contract was not in writing and acknowledged by both parties before a certifying officer as defined in G.S. § 52-10(b), it was unenforceable.

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Criminal Practice – Plea Agreement – Sentencing — Unenforceable – Voluntary Manslaughter (access required)

State v. Rico Where the sentencing judge failed to make any findings as to aggravating factors and failed to exercise his discretion in determining whether an aggravated sentence - as called for in defendant’s plea agreement - was appropriate, defendant’s original sentence was invalid as a matter of law.

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Contract – Real Property – Improvements – Subcontractor’s Liens – Unenforceable – Ground Leases (access required)

Pegram-West, Inc. v. Sandra Anderson Builders, Inc. Even though the plaintiff-subcontractor filed both claims of lien and notices of claim of lien, in the complex development scheme at issue, the subcontractor’s interests – against every party except the now-dissolved contractor – were defeated by deeds to private owners on some of the lots and by foreclosure of prior deeds of trust on other lots. We affirm the trial court’s order discharging the subcontractor’s claims of lien and notices of claim of lien.

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Real Property – Restrictive Covenants – Amenity Fees – Unenforceable – Golf Courses (access required)

Watford v. Midsouth Golf, LLC Since a community’s property owners are not permitted to sue to enforce the community’s declaration of covenants, the property owners are not third-party beneficiaries of the declaration, and the golf course owner cannot require them to pay amenity fees. We affirm summary judgment for the property owners.

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Contract – Real Property – Improvements – Subcontractor’s Liens – Unenforceable – Ground Leases (access required)

Pete Wall Plumbing Co. v. Sandra Anderson Builders, Inc. Even though the plaintiff-subcontractor filed both claims of lien and notices of claim of lien, in the complex development scheme at issue, the subcontractor’s interests - against every party except the now-dissolved contractor - were defeated by deeds to private owners on some of the lots and by foreclosure of prior deeds of trust on other lots. We affirm the trial court’s order discharging the subcontractor’s claims of lien and notices of claim of lien.

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Domestic Relations – Parent & Child – Support – Modification — Incorporated Separation Agreement – Automatic Increases – Unenforceable – Support During College (access required)

Wilson v. Wilson The separation agreement that was incorporated into the parties’ 1988 divorce judgment required the defendant-father to increase his child support payments whenever he received a raise or bonus; however, such automatic child support increases do not take into account all of the factors required to modify child support, such as the needs of the children. We reverse the trial court’s order requiring the father to pay $23,921 in past due child support.

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