North Carolina Case Law Update September 10-12, 2015

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Quality and Service always Prevail ®

Case Law UpdateCase Developments, 2014/2015

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North Carolina Supreme Court

Falk v. Fannie Mae 5COA Reversed on NCGS 45-37(b)Smith distinguishedSupreme Court ducked Equitable Subrogation

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Town of Midland v. Wayne 7Inverse Condemnation caseEasement CondemnationApproved Subdivision Plan altered by easementCorp. and individual shared “unity of ownership”

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North Carolina Court of Appeals

Nevitt v. Robotham 8Trusts, Declaration of Trust, Recordation, DeliveryCourt’s Analysis lacks qualifications, outcome correctEquated unrecorded deed with declaration of trustAssumed unrecorded deed was invalidHolding...

Deed not required with adequate declaration of trust !

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Carmichael v. Lively 13Renunciation and RescissionRenunciation not registered for two yearsRescission and devisee’s deed recorded previouslyIntervening Executor’s deed rendered ineffective

Fortner v. Hornbuckle 13Completed gift questionRetained “control” of unrecorded deedsGrantee’s wllingness to return reflects Grantor’s intent?

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In Re Powell 14Foreclosure service by Deputy and FCMOnly one method requiredUpon failure of either - publication allowed

Duke Energy Carolinas v. Gray 14Easement encroachment Six-year SOL appliedShould have applied 20-year statutePetition for Discretionary Review allowed – 6/10/2015

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Charlotte Pavilion Road Retail Investment, L.L.C., v. NC CVS Out parcel benefited by restriction on balance of tractNo stores selling: health/beauty aids, drugs or vitamins Walmart on adjoin tract wanted to use for parkingDisallowed

LE Oceanfront, Inc. v Lands End of Emerald Isle Assoc., Inc. De facto corporations recognizedDefunct corporation can ‘wind up’Even with NCGS 105-232 Revenue suspensionSupreme Court denied discretionary review

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Khwaja v Khan, et al 2115–year Commercial lease w/option “5 to 10 years”Common Law RAP period applies-twenty yearsURAP does not apply to “nondonative transfers”New Bar P’ship v. Martin, (2012) cited

Glass v Zaftrin, LLC 21Bidder defaulted after foreclosure saleBid raisedTrustee sought to deduct sale costs from depositNo penalty where raised bid covers debt + costs

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Wells Fargo Bank N.A v Coleman 21Reformation issueN.C.G.S. Section 28A-19-3(a) not applicableSummary Judgment not proper for equitable claim

Graham v Deutsche Bank (Rehearing) 22Adjoining property encroachmentContinuing trespass exists each day as a new trespassHeld: Woodring v. Swieter inconsistent with prior lawNew owner can claim when trespass was against prior ownerMandatory removal injunction appropriate

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ACC Construction, Inc. v SunTrust 24Long standing disputeGap in title from unrecorded deedCured by subsequent recording of deed & ...Rerecording deed of trust 44A lien claimants not protected by recording acts...

BB&T v Smith 25Deficiency caseGuarantor may claim N.C.G.S. Section 45-21.36 offsetContinuing trespass Held: Virginia Trust Company v. Dunlop, (1938) controls

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In Re Foreclosure of Foster 26Complex procedural factsTakeaway...

Superior Court can’t issue injunction on appealVictor has no standing to appeal loser’s order

Kirby, et al v NCDOT 28Transportation Corridor Official Map Act Effects not limited to 3 years = Inverse condemnationStatute of Limitations only begins run when project complete

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Bank of New York Mellon v Withers 28Equitable Subrogation Deed supposed to be to Mom and DaughterMade to Mom and five daughters“Excusable Ignorance” not addressed

In Re Foreclosure of Brown 31Foreclosure statute of limitations Waiver of acceleration presumedDefault does not trigger NCGS 1-47Statute of limitations runs from maturity of note

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Martin Marietta, Inc. v Bondhu, LLC 31Equitable Accounting statute of limitations Partition is an Equitable proceedingVA land = VA law, NC case = NC procedureGS 1-56, 10-years, but see NCGS 105-363Unanswered: When does it begin to run?

Simmons v. Waddell 35Landlocked owner acquires easement, then burdened landLater, “Also conveyed is Grantors [sic] interest in a roadway

easement 30 feet wide, as spelled out in Deed recorded...”

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The NC State Bar v. Scott 35O’Brien Law Firm/HUDAdministrative staff made errorsClosing Attorney is responsible for supervision

In re the Foreclosure of: Garvey 35NCRCP apply to Chapter 45 foreclosure Likewise to de novo appeal to Superior CourtRequires specific findings of fact...not...“what the clerk said”

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In re Foreclosure of Beasley 36NCRCP apply to Chapter 45 foreclosure “Two Dismissal Rule” does not apply to subsequent default

Wilner v. The Cedars of Chapel Hill, LLC 36Transfer Fees -COA - “They signed a contract”Personal vs Real covenantsNo Consideration for contractPetition for Discretionary Review pending

United Community Bank v Wolfe 39Deficiency ActionOwner Competent to Testify as to Value

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Finis

Thank You

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