Legal Question in Real Estate Law in North Carolina

I have a notice of hearing prior to foreclosure sale from the attorneys representing my homeowners association. I am to appear in court before the clerk of Superior Court on June 28. In the notice, if foreclosure is allowed, the propertry will be sold at public auction. I have a first mortgage and home equity loan which is second. It was an assesssment for each townhome homeowner to pay for the roofs to be replaced. A vote was never taken to assess. The only vote was to how the homeowners were to be billed (monthly, quarterly, etc.). Since the lien, that was placed on my property a year and a half ago, they have slapped numerous attorney's fees and costs on the total balance. What, if any avenues do I have regarding the notice of hearing? Can they foreclose given the priority liens? Can they actually have a sale or evict? Is there any recourse given the immediate court date (such as an extension, etc.)? If I proceed with the court date, is it inevitable that additional attorney foreclosing fees and court costs will be attached? Is there any limitation to fees or costs if foreclosure is allowed? Would it be wise to pay what I have and try to negotiate the remaining balance, or is it too late for that approach (would the additional costs already have been added)? Would I need to negotiate with my HOA or the attorneys, and can I offer a lower amount that would satisfy the debt? Would they even respond to anything less than the entire amount?

If all else fails and I appear before the clerk, do I have any defense or will the judgement be a moot point? If the judgement is to continue foreclosure proceedings, what are my options (bankruptcy, etc.)? What can they do after judgement? Can they sell and divide up the proceeds between the other lienholders? I do not have any equity in my home. The sell would have to generate a substantial amount in order for the association to get paid. Are there any loopholes before or after judgement has been handed down? Could they ask the clerk to attach a judgement against the contents of my home, my assets, or garnish my wages? If best case scenario happened, would they still have a formal sale for visual purposes? In other words, to make a point.

This is a critical time for me and I really don't know what I am up against. Any help would be greatly appreciated given my financial circumstances.

Asked on 6/23/10, 8:38 pm

1 Answer from Attorneys

Jeff Rosner Rosner Law Firm P.A.

To answer part of your question - the sale will not effect prior liens. They will still need to be paid. If the prior mortgage holders don't get paid, then they will foreclose on the HOA. You are probably also violating your deed of trust with those mortgage holders by not paying those assessments. I would attempt to negotiate. From the HOA perspective, they are not going to get any money out of this if they foreclose since they won't be able to sell the property with 2 liens attached.

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Answered on 6/24/10, 4:58 am

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