Bill Summary for S 196 (2021)

Summary date: 

Jun 29 2021

Bill Information:

View NCGA Bill Details2021
Senate Bill 196 (Public) Filed Monday, March 8, 2021
AN ACT TO (I) UPDATE THE MAILING METHOD OF NOTICE TO A JUDGMENT DEBTOR OF AN EXECUTION SALE OF REAL PROPERTY, (II) CLARIFY THE EFFECTS OF A DEFAULT BID IN PRIVATE JUDICIAL SALES AND PUBLIC OR PRIVATE PARTITION SALES, (III) AMEND THE TAX FORECLOSURE STATUTES AND MAKE TECHNICAL CHANGES, (IV) MAKE AMENDMENTS AFFECTING THE VALIDITY OF NOTARIAL ACTS, (V) MAKE AMENDMENTS AFFECTING REAL PROPERTY, AS RECOMMENDED BY THE GENERAL STATUTES COMMISSION, AND (VI) TO DELAY THE REASSIGNMENT OF DISTRICT 36, BURKE, CALDWELL, AND CATAWBA COUNTIES, INTO TWO SEPARATE PROSECUTORIAL DISTRICTS.
Intro. by Edwards, Galey.

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Bill summary

House committee substitute makes the following changes to the 1st edition.

Part III.

Further amends GS 105-374, concerning authorized foreclosure actions in the nature of an action to foreclose a mortgage. Adds a new provision to subsection (c), providing that a trustee in a deed of trust cannot be made a party to or served in a foreclosure action. Eliminates the proposed changes to subsection (i) to clarify that costs include a commissioner's fee of up to 5% of the purchase price for foreclosure actions in which the court enters a judgment confirming the sale of real property, and eliminates the inclusion of a commissioner's fee in the cost for redemption in the case of redemption prior to the judgment. Further amends subsection (p), adding a new provision to specify that a judgment of confirmation bears interest at the same rate as a judgment under GS 105-375 (governing docketed certificates of taxes due on real property which constitute a judgment against the real property if certain criteria are met).

Amends GS 105-375, which governs the in rem method of foreclosure for real property docketed for due taxes, as discussed above. Regarding required notice by tax collectors subject to the statute's procedures, aligns the 30-day notice requirement of lienholders prior to docketing a judgment under the statute with the description of lienholders required to be served under GS 105-374(c) (regarding actions to foreclose tax liens). Further, explicitly requires 30 days' notice to all lienholders of record by the sheriff prior to the date of sale in the same manner as the taxpayer. Makes technical and clarifying changes.  Makes language gender-neutral.

Makes a technical change to the proposed changes to GS 105-373, concerning settlements of tax collectors. 

Makes conforming changes to the Part's effective date provisions.

Adds the following content.

Part IV.

Amends GS 10B-65 to validate notary acknowledgments performed before July 1, 2013 (was, December 1, 2005), that bear a notary seal. Specifies that the statute, which validates acts of notaries public in a number of specified instances, applies to notarial acts performed on or before April 1, 2021 (was, April 1, 2013). Makes additional clarifying changes.

Amends GS 10B-69 to deem a notarial certificate that was contained in a form issued by a State agency before April 1, 2021 (was, April 1, 2013), to be valid so long as the certificate complied with the law at the time the form was issued.

Amends GS 10B-71, which validates any acknowledgment taken and any instrument notarized by a person who after recommissioning failed to again take the oath as a notary public, to make the statute applicable to notarial acts performed on or after May 15, 2004, and before April 1, 2021 (was, April 1, 2013). Makes clarifying changes.

Amends GS 47-48 (clerks’ and registers of deeds certificate failing to pass on all prior certificates), to make the statute applicable to all instruments recorded in any of the state’s counties before April 1, 2021 (was, April 1, 2013). Makes clarifying changes. Makes language gender-neutral.

Amends GS 47-51 to provide that all deeds executed before April 1, 2021 (was, April 1, 2013), by an officer authorized to execute a deed by virtue of the office or appointment, in which the officer has omitted to affix a seal after the officer's signature, are not invalid on account of the omission of the seal. Makes clarifying changes. Makes language gender-neutral.

Amends GS 47-53, concerning validation when seals have been omitted in the execution of any deed, mortgage, or other instrument required to be registered, to make the statute applicable to acknowledgments, private examinations, or proofs taken before April 1, 2021 (was, April 1, 2013). Makes additional clarifying changes.

Amends GS 47-53.1, concerning the validation of an acknowledgment that lacks the required seal, to make the statute applicable to deeds and other instruments acknowledged before April 1, 2021 (was, April 1, 2013). Makes clarifying changes.

Amends GS 47-72 to provide that in all cases before April 1, 2021 (was, April 1, 2013), where a deed conveying lands purported to be executed by a corporation fails to include the corporate name, but the deed contains the required signatures and has been registered in the appropriate county, the defective execution is considered valid. Makes clarifying changes.

Amends GS 47-97, concerning the validation of a corporate deed when there is a mistake as to the officers’ names, to apply to deeds executed before April 1, 2021 (was, April 1, 2013).

Amends GS 47-97.1, concerning the validation of deeds of a corporation that include an error in the acknowledgment or probate, to apply to cases where the deed was filed for registration before April 1, 2021 (was, April 1, 2013). Makes clarifying changes.

Amends GS 47-108.6, concerning the validation of certain conveyances of foreign dissolved corporations, to apply to cases before April 1, 2021 (was, April 1, 2013). Makes clarifying changes.

Amends GS 47-108.11, concerning the validation of recorded instruments where seals have been omitted, to make the statute applicable to instruments recorded or registered before April 1, 2021 (was, April 1, 2013). Makes additional clarifying changes.

Amends GS 47-108.20, concerning the validation of certain recorded instruments that were not acknowledged, to make the statute applicable to instruments recorded before April 1, 2021 (was, April 1, 2013). Makes conforming changes.

Repeals GS 10B-72, which validated any acknowledgment taken and any instrument notarized by a person who after recommissioning failed to again take the oath as a notary public if the act was performed on or after August 28, 2010, and before January 12, 2012.

Amends GS 47-2.2 to provide that if the proof or acknowledgment of any instrument is before a notary public of any state other than North Carolina and the instrument does not state, as part of the proof or acknowledgment or as part of the notary's seal (previously did not require that be a part of the proof or acknowledgment or a part of the seal), that the notary's commission does not expire or is a lifetime appointment, then the certificate of proof or acknowledgment must be accompanied by the certificate of the county official before whom the notary qualifies for office or of a state officer authorized to issue certificates regarding notary commission status, stating that the notary public was at the time the certificate bears date an acting notary public of such state, and that it is the notary’s genuine signature. Makes clarifying changes. Makes language gender-neutral.

Amends GS 47-37.1 to deem a notarial certificate that complies with the provisions of Part 5 (Certificate Forms) of Article 2 of GS Chapter 10B a sufficient from of probate or acknowledgment for the purposes of GS Chapter 47 (Probate and Registration). Makes conforming and clarifying changes. 

Effective October 1, 2021.

Part V.

Revises GS 41-56 regarding the creation of tenancy by the entirety in real property. Makes a clarifying change to refer to a grantor rather than an individual. Makes joinder of spouses subject to the provisions of GS 52-10.1, which governs separation agreements, rather than GS 52-11, which governs antenuptial contracts and torts. Makes technical and clarifying changes. 

Revises the exemptions set forth in GS 41-75, exempting from the provisions governing joint tenancy of Article 6, accounts established under GS 41-2.1 (governs right of survivorship in bank deposits created by written agreement) or GS 41-2.2 (governing joint ownership of securities) to the extent the provisions are inconsistent with Article 6 (previously erroneously referenced statutes in GS Chapter 42, which provides landlord/tenant law). 

Expands GS 47-18 to deem no rights of first refusal and rights of first offer valid to pass any property interest as against lien creditors or purchasers for valuable consideration from the donor, bargainor, or lessor except from the time of the right's or option's registration in the specified county (previously only specified land conveyances, contracts to convey, and options to convey). Makes technical changes. 

Makes the following changes to GS 93A-12 regarding disputed monies in real property transactions. Adds a new provision defining an escrow agent to mean a licensed real estate broker, an attorney licensed to practice in the state, or a title insurance company or title insurance agent licensed to conduct business in the state. Makes changes throughout the statute to replace references to licensed real estate brokers and attorneys with "escrow agent," thereby expanding the statute by making the authorities and requirements regarding disputed monies applicable to title insurance companies or title insurance agents licensed to practice in the state. Makes technical changes. 

Amends SL 2017-110 to revise the scope of the act to apply to instruments filed on or after August 31, 2018 (was, curative affidavits; SL 2017-110 provided for changes in correcting nonmaterial errors in recorded instruments of title, created a curative procedure for obvious description errors in title documents, and created a seven-year curative provision for certain defects in records title instruments).

Effective October 1, 2021. 

Makes conforming changes to the act's long title and effective date provision.

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