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Debtor Rights to Challenge a Bank’s Foreclosure Bid

Recently, Elizabeth Wright advised two South Carolina banks to REMOVE language in their North Carolina deed of trust purporting to waive “appraisal rights” with regard to the collateral.

In South Carolina, in some mortgages, borrowers may waive “appraisal rights” meaning that a debtor challenge to the adequacy of the bank’s foreclosure bid is foreclosed, literally.

In North Carolina, though, N.C. Gen. Stat. Sec. 45-21.36 allows a borrower or guarantor to challenge a bank bid for being less than fair market value in order to offset or erase a deficiency.

Any purported waiver of this right in a NC deed of trust would be invalid, and perhaps expose the bank to liability. The NC Supreme Court visited these issues in a recent case.

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