North Carolina Affidavit of Service flawed and fails to support the Sheriff's Foreclosure Notice of Reurn

[Howth]

We were foreclosed upon in September of 2018, and when combing over the documents I noticed the foreclosure attorney signed off stating I had been served in person by the sheriff. I was not even in town on the day of service, and the Sheriff's Foreclosure Notice Return document clearly states copies were left my husband. I am going to look for an attorney to file a Motion To Quash the foreclosure judgement as it is my understanding that a notarized Affidavit of Service means the attorney verifies all the documents are correct and in order - which they were not.

 

I know it is a long shot, but if there is an attorney from NC on the boards, I'd love to know how long the MTQ takes from filing the paperwork to the mark vanishing from our public record. We are hoping to apply for a mortgage in March and would love to know if this is a realistic timeline.

 

 

 

 

 

 

[cv91915]

I'm not sure what type of outcome you're aiming for with respect to the old loan, but on the application for the new mortgage you will be asked if you've had a home that's been foreclosed in the past seven years, and your choices will be to answer truthfully or commit mortgage fraud.  

 

For many circumstances, three years after foreclosure you can qualify for an FHA-guaranteed mortgage, and you may have other options.  Note that a subprime loan like those insured by FHA are expensive, and as such, are risky to take on. 

 

I'm hopeful that you've been able to address the root cause of your financial problems from a couple of years ago, and have plenty of money in savings to prevent that type of stressful outcome again.   

 

Good luck.

[Trixiegirl1966]

Thanks for the response regarding our hopes for a best scenario outcome. It is my understanding that the motion to quash (MTQ) will happen only because the faulty foreclosure was not a legal one.

 

If the MTQ does not happen, we will absolutely document the foreclosure happened. However, it it was a fraudulent foreclosure due to not following the appropriate legal steps, I can’t see where we would be required to say we had a foreclosure in the last seven years.

 

And yes, we will have $50,000 in savings by the time we purchase again with a VA loan. Purchasing after foreclosure involves waiting 2 years when using the VA benefit.

 

[cv91915]

2 hours ago, Trixiegirl1966 said:

Thanks for the response regarding our hopes for a best scenario outcome. It is my understanding that the motion to quash (MTQ) will happen only because the faulty foreclosure was not a legal one.

 

If the MTQ does not happen, we will absolutely document the foreclosure happened. However, it it was a fraudulent foreclosure due to not following the appropriate legal steps, I can’t see where we would be required to say we had a foreclosure in the last seven years.

 

And yes, we will have $50,000 in savings by the time we purchase again with a VA loan. Purchasing after foreclosure involves waiting 2 years when using the VA benefit.

 

Are you posting with two difference accounts?  I'm confused.

 

I'm interested in reading more about your legal theory if you have any resources you can link.   This decidedly isn't my area of expertise.

 

Regardless, you had a property go into foreclosure proceedings, and you no longer have the home because you failed to make the payments.  I'm sure there are underwriting guidelines to cover this.

 

 

 

Edited January 10, 2021 by cv91915

[Trixiegirl1966]

I have one CB account opened for my husband’s use and my own account is separate. So yeah, I did post with one and answer with the other.

 

My legal theory involves hours and hours of research with cross checking my findings with a college friend who is a lawyer. 
 

I also saw where PsychDoc mentioned getting a judgement quashed due to lack of proper service. 
 

If a foreclosure judgement is quashed due to improper service then the foreclosure is not a valid one. The lender can start the process all over again if the lack of service is discovered before the foreclosure is signed off on, but in our case the clerk of court did not catch the mistake.

 

My lawyer friend said the lender will need to settle with us on a wrongful foreclosure if the clerk of court does quash the foreclosure judgement due to failure to properly serve me.

 

 

[centex]

With more than two years having elapsed, expect to have to prepare a claim to overcome the Laches argument that will be raised.  The time for objections has long since passed. 

[centex]

On 1/10/2021 at 9:34 AM, Trixiegirl1966 said:

My lawyer friend said the lender will need to settle with us on a wrongful foreclosure if the clerk of court does quash the foreclosure judgement due to failure to properly serve me.

So then your 'lawyer friend' is representing you and assuming all potential adverse consequences, which will also likely include bringing an action beyond the window in which the Court still maintained jurisdiction? 

 

Clerks, generally speaking, do not quash anything.  They serve as the conduit by which various pleadings get to the judge for settings and/or signature.