August 2007

New Legislation 2007

By Chris Burti, Vice President and Senior Legal Counsel, Statewide T itle, Inc.

House Bill 1708 - "Subject to" Real Estate T ransactions

Chapter 75 of the General Statutes is amended by adding a new Article 6. T his legislation is intended to curtail schemes designed to acquire distressed residential properties by transfers attempting to evade due on sale clauses of existing mortgages with promises to bring and keep the mortgage current while finding a buyer. T hese are often associated with advertising that claims to "take over payments", "buy your house," or use other language which implies that the person will pay the mortgage, and then enter into a real estate transaction for the purchase of the home yet the person is not obligated to pay or to extinguish the mortgage or deed of trust.

Violation brings the activity under the sanctions of Chapter 75. Unless acting as, or on behalf of a principal, attorneys are not covered by the requirements when performing services at closing. T his act becomes effective October 1, 2007, and applies to contracts for covered transactions entered into on or after that date.

House Bill 1549 - Property Subject T o Execution

T his Bill makes it clear that encumbered property is subject to execution and sale by Sherriff’s sale. In effect, the equity of redemption is being sold in the case of property encumbered with a mortgage. T his act is effective October 1, 2007.

G.S. 1-313(1) (b) reads as rewritten:

“Real or personal property required to satisfy the judgment is subject to execution regardless of whether the property is encumbered. However, any personal or real property sold under execution remains subject to all prior encumbrances, including liens, mortgages, deeds of trust, perfected security interests, and prior judgments which became effective prior to the lien of the judgment pursuant to which the execution sale is held, in the same manner and to the same extent as if no such sale had been held."

House Bill 313 - Identify Loan Originator 

As originally proposed this legislation would have significantly increased the burdens of closing attorneys in this state. As adopted it still requires the attorney to list any known mortgage broker involved in the transaction. T he attorney is not required to do any due diligence in discovering any such involvement. T his act became effective July 5, 2007 and applies to deeds of trust registered on or after July 1, 2008.

Specifically, the new 45A-4(b) provides:

“If the settlement agent receives information from the lender as provided in G.S. 45A-5(b) or otherwise has actual knowledge that a mortgage broker or other person acted as a mortgage broker in the origination of the loan, the settlement agent shall place an entry on page 1 of the deed of trust showing the name of the mortgage broker or other person who acted as a mortgage broker in the origination of the loan. Information pertaining to the identity of the mortgage broker or other person who acted as a mortgage broker in the origination of the loan shall not be considered confidential information. T he terms "mortgage broker" and "act as a mortgage broker" shall have the same meaning as provided in G.S. 53-243.01.”

And 45A-5(b) provides:

“ T he lender shall include in the loan closing instructions to the settlement agent the name of the mortgage broker or other person, if any, who acted as a mortgage broker in the origination of the loan.”

House Bill 817, Residential Mortgage Fraud Act.

T he North Carolina General Assembly enacted this consumer protection legislation which becomes effective December 1, 2007, and applies to offenses committed on or after that date. It creates a new Article 20A in Chapter 14 of the North Carolina General Statutes.  Mortgage fraud has no doubt been around as long as there have been underwriting guidelines for lending institutions, but it has become increasingly prevalent during the last few years.  T he sub-prime lending market that targets economically disadvantaged mortgage applicants as well as minorities has had explosive growth.  T he Mortgage Lending Act of 2001 reduced a significant number of abuses through its licensure requirements for mortgage brokers, lenders and loan officers, but it did not deal with purely fraudulent activity.  Added to the mix are unscrupulous builders looking to take advantage of the population boom in North Carolina , relatively low interest rates, and the ever-increasing ease in which identity thieves operate. According to the Financial Crimes Enforcement Network, North Carolina ranks 9^th in the nation in the number of reported mortgage fraud cases, with 2,500 new reports each year. Most mortgage fraud investigations have involved significant numbers of complaints against a single group of persons or entities.

T he legislation codifies residential mortgage fraud as a crime in North Carolina . T he elements of the crime are knowingly:

(1)     Making, attempting to make any material misstatements, misrepresentations, or omissions in the lending process intending for anyone involved in the process to rely on it.

(2)       Using, facilitating or attempting to use or facilitate the use of any such misstatement, misrepresentation, or omission in the lending process intending for anyone involved in the process to rely on it.

 (3)       Receiving or attempting to receive proceeds / funds resulting from a violation of the Act.

(4)       Conspiring or soliciting another to violate the Act.

Prosecution under this Article for residential mortgage fraud only requires a showing that the party accused did the act with the intent to deceive or defraud, not that anyone was harmed or believed the fraud.   It also presumes damages rather than requiring proof of actual monetary loss, and permits the court to order restitution to the injured party in addition to the possible forfeiture of property used in the course of or derived from the fraud.  

District attorneys may institute criminal proceedings under this Act predicated upon their own investigations or referrals from the Commissioner of Banks, the North Carolina Real Estate Commission, the Attorney General, the North Carolina Appraisal Board, or other parties.

A single violation will be a Class H felony. A pattern of residential mortgage fraud that “involves five or more mortgage loans, which have the same or similar intents, results, accomplices, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics” is a Class E felony.

House Bill 1384, Rule Against Perpetuities “Repealed”

T he General Assembly repealed Article 2 of Chapter 41 of the General Statutes and added a new Article 2A.

"Article 2A.

"Perpetuities and Suspension of Power of Alienation.

"§  41‑23.  Perpetuities and suspension of power of alienation.

(a)       A trust is void if it suspends the power of alienation of trust property, as that term is defined in G.S. 36C‑1‑103, for longer than the permissible period. T he permissible period is no later than 21 years after the death of an individual then alive or lives then in being plus a period of 21 years.

(b)       If the settlor of a revocable trust, as those terms are defined in G.S. 36C‑1‑103, has an unlimited power to revoke or amend the trust, the permissible period under subsection (a) of this section is computed from the termination of that power.

(c)       If a trust is created by exercise of a power of appointment, the permissible period under subsection (a) of this section is computed from the time the power is exercised if the power is a general power even if the power is only exercisable as a testamentary power. In the case of other powers, the permissible period is computed from the time the power is created, but facts at the time the power is exercised shall be considered in determining whether the power of alienation is suspended beyond a life or lives in being at the time of the creation of the power plus 21 years.

(d)       T he power of alienation is suspended only when there are no persons in being who, alone or in combination with others, can convey an absolute fee in possession of land, or full ownership of personal property.

(e)       Notwithstanding subsection (a) of this section, there is no suspension of the power of alienability by a trust or by equitable interests under a trust if the trustee has the power to sell, either expressed or implied, or if there exists an unlimited power to terminate the trust in one or more persons in being.

(f)        T his section does not apply to a transfer in trust (i) for charitable purposes, as defined in G.S. 36C‑4‑405; (ii) to a literary or charitable organization; (iii) to a veterans' memorial organization; (iv) to a cemetery corporation, society, or association; or (v) as part of a pension, retirement, insurance, savings, stock bonus, profit sharing, death, disability, or similar plan established by an employer for the benefit of some or all of its employees for the purpose of accumulating and distributing to such employees the earnings or the principal, or both earnings and principal, of the trust.

(g)       T his section does not apply to a future interest other than a future interest in trust and, other than as set forth in this section, this section does not modify the common law of the State regarding the power of alienation in this State.

(h)       T he common law rule against perpetuities is not in force in this State."

SEC T ION 3.  T his act becomes effective January 1, 2008, and applies to all trusts and other property interests created before, on, or after that date.

T here is pending legislation that will make this provision applicable only to trusts created and administered in North Carolina .

Senate Bill 947, T rust Code Changes

T here are numerous provisions effecting changes in the trust code in this Act. Since trusts are having an ever increasing impact on real property, staying abreast of the changes is becoming more and more imperative…particularly for practitioners who do not prepare trust instruments. We discuss some of the provisions most likely to affect real property transactions and include the full text for reference purposes.

Of prime significance to property professionals may be the new provision added to Chapter 39 of the general Statutes. T his provision creates a rule of construction that eliminates the problem in North Carolina created by attempting to convey property to a trust rather than the trustee.

§ 39‑6.7.  Construction of conveyances to or by trusts.

(a)       A deed, will, beneficiary designation, or other instrument that purports to convey, devise, or otherwise transfer any ownership or security interest in real or personal property to a trust shall be deemed to be a transfer to the trustee or trustees of that trust.

(b)       A deed or other instrument which purports to convey or otherwise transfer any ownership or security interest in real or personal property by a trust shall be deemed to be a transfer by the trustee or trustees of that trust. T his rule of construction shall apply:

(1)       Regardless of whether the instrument is signed by the trustee or trustees as such, or by the trustee or trustees purportedly for or on behalf of the trust; and

(2)       Regardless of whether the instrument by which the trustee or trustees acquired title transferred that title to the trustee or trustees as such, or purportedly to the trust.

(c)       A deed or other instrument by which the trustee or trustees of a trust convey or otherwise transfer any ownership or security interest in real or personal property shall be deemed sufficient:

(1)       Regardless of whether the instrument is signed by the trustee or trustees as such, or by the trustee or trustees purportedly for or on behalf of the trust; and

(2)       Regardless of whether the instrument by which the trustee or trustees acquired title transferred that title to the trustee or trustees as such, or purportedly to the trust.

(d)       T he trustee or trustees of a trust may convey or otherwise transfer any ownership or security interest in real or personal property as trustee or trustees even though the deed or instrument by which the trustee or trustees acquired title purported to convey or transfer that title to the trust.

(e)       Nothing in this section shall be construed to limit the manner in which title to real or personal property may be conveyed or transferred to or by trustees."

Chapter 36C of the General Statutes is amended by adding a corresponding new section to read:

"§ 36C‑11‑1104.   T rustee signatures.

T he signature of a trustee of a trust who signs a document for or on behalf of the trust shall be deemed to be the signature of the trustee as such. A document which identifies a trust shall be deemed to include the trustee or the trustees as such."

New provisions are added for determining the class of beneficiaries whose consent is required to modify or terminate a trust.  Under this section, the presumption of fertility is now rebuttable.   If the trust instrument provides for the disposition of property to a class of persons described only as "heirs" or "next of kin", the court may limit the class of beneficiaries whose consent is needed to order the modification or termination to the beneficiaries who are reasonably likely to take.

A new section 36C‑6‑602.1 has been added clarifying the power of an agent or guardian to exercise the settlor's powers with respect to revocable trust. A general guardian or a guardian of the estate of the settlor may exercise the powers of the settlor with respect to a revocable trust as provided in G.S. 35A‑1251(24). An attorney in fact may exercise any of the following powers of a settlor of a revocable trust to the extent expressly authorized by the terms of the trust or the power of attorney as long as the act does not alter the designation of beneficiaries to receive property on the settlor's death under that settlor's existing estate plan:

(1)       Revocation of the trust.

(2)       Amendment of the trust.

(3)       Additions to the trust.

(4)       Direction to dispose of property of the trust.

(5)       T he creation of the trust, notwithstanding G.S. 36C‑4‑402(a)(1) and (2).

Section 36C‑6‑605 provides for the failure of the disposition of property of a trust by lapse or otherwise by creating anti–lapse provisions.

Section 36C‑6‑606 provides for the revocation of provisions in revocable trust by divorce or annulment trust in favor of the settlor's former spouse.

T his act is effective October 1, 2007, and applies to

a.)    all trusts created, and to all conveyances, devises, beneficiary designations, or other transfers occurring before, on, or after that date;      

b.)    all judicial proceedings concerning trusts or transfers to or by trusts commenced on or after that date; and

c.)    all judicial proceedings concerning trusts or transfers to or by trusts commenced before that date unless the court finds that application of a particular provision of this act would substantially interfere with the effective conduct of the judicial proceedings or prejudice the rights of the parties, in which case the law as it existed on September 30, 2007, shall apply.

Dirt T ales from the Deed Vault

By John Dillard , Vice President and Legal Counsel, Statewide T itle, Inc.

T his month’s edition of  Dirt T ales looks at an issue that commonly arises when an attorney tacks on to an existing title policy that has insured against a risk.  T he facts in the cases presented in each series are true occurrences, except for the names of the parties involved.  

Attorney Dolittle is hired to represent Homebuyer in the purchase of a home and is engaged to perform a title search.  T he title search revealed that the seller had acquired title to the house by virtue of an out-of-state divorce decree that had awarded the wife the residence as a part of the settlement. Dolittle examined the copy of the court decree, which was an exemplified copy of a divorce decree from Virginia .  He thought the signatures on the exemplification looked odd as they looked like they were signed by the same person.  But, the order was on a proper exemplification cover from the Commonwealth of Virginia , and it had all the necessary seals from the Clerk of Court there.  Additionally, National Dirt T itle Company had issued an owner’s policy to the seller, so he could just tack to that policy, which he subsequently did.

Several  months later Dolittle received a phone call from Homebuyer complaining that realtors were scheduling appointments to show his home and that he had been told he didn’t have good title to the home.  When he spoke to the realtor, Dolittle was given a copy of an Equitable Distribution settlement from a North Carolina court in which the house Homebuyer had purchased was ordered to be sold as a part of the settlement.  Dolittle contacted the Clerk of Court in Virginia where the divorce decree was filed and discovered there was no divorce decree on record in the name of the parties or under the case number that was referenced  on the decree.

But all was not lost, he had gotten title insurance for his client, and he would advise him to file a claim, except that when Dolittle checked his records, he discovered that he had not gotten the final title policy and that Homebuyer’s file was still sitting on his post-closing paralegal’s desk.

What could Dolittle have done differently to have prevented the problems he later encountered, and what can be done to help his client?

First, whenever an out-of-state order is filed in your chain of title, you should verify the authenticity of the document in the state in which it is filed if that document affects your title.  In this case, it turned out that the wife was living in Virginia , and her best friend worked in the Clerk of Court’s office.  T hey forged a decree of divorce, and then the friend co-opted the court’s seals and exemplification cover and forged the necessary signatures.  Forgeries of all kinds of documents is very commonplace now, and additional care needs to be taken to protect your client.

Second, if you are not comfortable with a defect or if a document looks suspicious, don’t just rely upon a prior title policy that insures over the defect.  T itle insurance gives coverage against indemnifiable losses, but title coverage cannot make defects and problems go away.

T hird, it is a good practice to file applications for final title policies as soon as possible after the closing.  In this case, although Homebuyer did not have title coverage, he might be able to sue the seller on the warranties given in his deed and invoke the seller’s title coverage, but that is an extra step and expense that could have been avoided had his attorney obtained his title policy in a timely fashion.

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Last Updated: Tuesday, July 31, 2007