Bill Text: NC H407 | 2013-2014 | Regular Session | Amended
Bill Title: Trustee-Atty Fee/Foreclosures/Clerk Approval
Spectrum: Strong Partisan Bill (Republican 11-1)
Status: (Passed) 2013-06-12 - Ch. SL 2013-104 [H407 Detail]
Download: North_Carolina-2013-H407-Amended.html
GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2013
H 2
HOUSE BILL 407
Committee Substitute Favorable 4/10/13
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Short Title: Trustee‑Atty Fee/Foreclosures/Clerk Approval. |
(Public) |
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Sponsors: |
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Referred to: |
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March 25, 2013
A BILL TO BE ENTITLED
AN ACT to authorize clerks of superior court to determine the reasonableness of counsel fees paid to an attorney serving as a trustee in a power of sale foreclosure proceeding.
The General Assembly of North Carolina enacts:
SECTION 1. G.S. 45‑21.31 reads as rewritten:
"§ 45‑21.31. Disposition of proceeds of sale; payment of surplus to clerk.
(a) The proceeds of any sale shall be applied by the person making the sale, in the following order, to the payment of –
(1) Costs and expenses of the sale, including the
trustee's commission, if any, and a reasonable auctioneer's fee if such expense
has been incurred;incurred, and reasonable counsel fees for an
attorney serving as a trustee if allowed pursuant to subsection (a1) of this
section;
(2) Taxes due and unpaid on the property sold, as provided by G.S. 105‑385, unless the notice of sale provided that the property be sold subject to taxes thereon and the property was so sold;
(3) Special assessments, or any installments thereof, against the property sold, which are due and unpaid, as provided by G.S. 105‑385, unless the notice of sale provided that the property be sold subject to special assessments thereon and the property was so sold;
(4) The obligation secured by the mortgage, deed of trust or conditional sale contract.
(a1) The clerk of the superior court of the county where the sale was had may exercise discretion to allow reasonable counsel fees to an attorney serving as a trustee (in addition to the compensation allowed to the attorney as a trustee) where the attorney, on behalf of the trustee, renders professional services as an attorney that are different from the services normally performed by a trustee and of a type which would reasonably justify the retention of legal counsel by a trustee who is not licensed to practice law. Counsel fees are presumed reasonable if in compliance with G.S. 6‑21.2(1) and (2). Nothing in this section, however, shall preclude the clerk of superior court from deeming a higher fee reasonable.
(b) Any surplus remaining after the application of the proceeds of the sale as set out in subsection (a) shall be paid to the person or persons entitled thereto, if the person who made the sale knows who is entitled thereto. Otherwise, the surplus shall be paid to the clerk of the superior court of the county where the sale was had–
(1) In all cases when the owner of the property sold is dead and there is no qualified and acting personal representative of his estate, and
(2) In all cases when he is unable to locate the persons entitled thereto, and
(3) In all cases when the mortgagee, trustee or vendor is, for any cause, in doubt as to who is entitled to such surplus money, and
(4) In all cases when adverse claims thereto are asserted.
(c) Such payment to the clerk discharges the mortgagee, trustee or vendor from liability to the extent of the amount so paid.
(d) The clerk shall receive such money from the mortgagee, trustee or vendor and shall execute a receipt therefor.
(e) The clerk is liable on his official bond for the safekeeping of money so received until it is paid to the party or parties entitled thereto, or until it is paid out under the order of a court of competent jurisdiction."
SECTION 2. This act is effective when it becomes law.
