North Carolina Law Review

University of North Carolina School of Law

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Chapel Hill, NC 27514

“A Topsy-Turvy World”: High Point Bank & Trust Co. v. Highmark Properties, LLC and the Modern Application of the Fair Market Value Offset Defense

March 23, 2017

95 N.C. L. Rev. 857 (2017) 


In High Point Bank, the Supreme Court of North Carolina overturned decades of precedent of the Court of Appeals of North Carolina that allowed lenders to pursue guarantors for deficiencies without limitation by the Fair Market Value Offset Defense. Consequently, the highest court’s interpretation of the FMVOD and its failure to appreciate the policy consequences of ruling in the guarantors’ favor will have significant implications for how lenders pursue deficiency judgments in North Carolina. This Comment argues that the incentives created by High Point Bank could lead to more manifestly unjust consequences for guarantors and lenders going forward— consequences that lawmakers can, and should, remedy by reforming the nonjudicial foreclosure and deficiency judgment process. 



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