Legal Question in Real Estate Law in North Carolina

We are currently going through a foreclosure of a home my husband built in 1996. The home is built on land he already owned from an inheritance. The amount of land was a little over 18 acres. We refinanced the house in 2002 and were assured that only the home and 1 acre of land surrounding the home were included. As this land was paid for when the house was built, it was never intended to be included in the financing of the home. Now with the economic downturn, several job losses and huge cuts in our collective household income, we have unfortunately become unable to meet the monthly mortgage payment and foreclosure has begun. A few years ago, my husband's sister wanted to purchase a portion of the land to give to her son to someday build on. A title search was done, and the land she wanted had no liens on it, so we sold her that land. When we were served in connection with the foreclosure, she was served also. I have gone back and read the original mortgage papers and though I struggled to keep up with the jargon, it never says in the papers anything about the land - mostly a reference to a deed of trust - which I read and have no clue what I read. So I guess my question is can this mortgage company foreclose on our home and take with it an additional $60,000 (give or take) worth of land - some of which is no longer in our possession?


Asked on 4/19/12, 11:58 am

1 Answer from Attorneys
Jeff Rosner Rosner Law Firm P.A.

Possibly - you will really need to consult with a real estate attorney. The first issue is what is encumbered - in order to find that out, you have to look at the legal description in the deed of trust. If the entire land is not encumbered, then the Bank has no rights to it but you still have to get this straightened out if they think they have rights to it. If the entire land was encumbered, then you have to consult with someone if you have any claims against the bank for reformation of that deed of trust. Meanwhile your husband's sister needs to contact her title insurance company right away and let them know because they should step in and help her.

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Answered on 4/19/12, 12:07 pm


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