Short Answer

In North Carolina partition cases, you do not have to rely on voluntary sharing at mediation. Use formal discovery (requests for documents/interrogatories) and, if needed, a subpoena to the lender to obtain current payoff and equity loan figures. If the co-owner still refuses, file a Rule 37 motion to compel with the Clerk of Superior Court (or Superior Court if transferred) and ask to extend the mediation deadline until disclosures are produced. The court can apportion mediator fees and address costs later.

Understanding the Problem

North Carolina: As a co-owner in a court-ordered mediation in a partition case, can you force the other co-owner to provide mortgage payoff, HELOC statements, and proof of funds so you can evaluate a buyout versus a sale? One co-owner is withholding these figures, making it hard to estimate net equity after commissions and fees.

Apply the Law

In a North Carolina partition proceeding (a special proceeding typically before the Clerk of Superior Court), the Rules of Civil Procedure apply unless a statute says otherwise. That means you can use formal discovery and subpoenas to obtain loan payoff and equity information outside the mediation session. Mediation is governed by court rules: parties must attend and pay the mediator, but mediation itself is not a substitute for discovery. If essential documents are missing, you can seek a court order compelling production and request that the mediation deadline be extended.

Key Requirements

• Use formal discovery: Serve targeted requests for production and interrogatories seeking current mortgage payoff quotes, HELOC balances, and any buyout funding documents.
• Subpoena third parties if needed: Issue a Rule 45 subpoena to the lender or servicer for payoff and account histories if the co-owner won’t produce them.
• Motion to compel: If the co-owner does not respond, move under Rule 37 to compel production and ask for a short extension of the mediation completion date.
• Forum and transfer: File motions in the partition special proceeding before the Clerk; if the matter is transferred to Superior Court, the same discovery tools apply.
• Mediation costs: Pay your share as ordered; you can ask the Clerk to apportion mediator fees and, in a sale, request that certain costs be paid from sale proceeds in the final order.

What the Statutes Say

• N.C. Gen. Stat. § 1-393 (Special proceedings; civil rules apply) – Makes civil rules available in special proceedings like partition.
• N.C. R. Civ. P. 45 (Subpoenas) – Allows subpoenas for documents from parties and third parties (e.g., lenders).
• N.C. R. Civ. P. 37 (Failure to make discovery; sanctions) – Authorizes motions to compel and related relief.
• N.C. Gen. Stat. § 7A-38.3B (Mediation in matters before the clerk) – Clerk can order mediation; addresses attendance, fees, and enforcement.

Analysis

Apply the Rule to the Facts: Because the co-owner has not produced mortgage and equity documents, serve formal discovery seeking current payoff quotes, HELOC balances, and proof of funds. If responses do not arrive in time, subpoena the loan servicer for a payoff and account statement. If noncompliance continues, file a Rule 37 motion to compel in the partition file and ask the court to extend the mediation deadline so negotiations can proceed with accurate numbers.

Process & Timing

1. Who files: You (through counsel). Where: Clerk of Superior Court in the county where the property is located (partition special proceeding). What: Serve discovery (requests for production/interrogatories) and, if needed, a Rule 45 subpoena duces tecum to the lender for a current payoff/HELOC statement; file a Rule 37 motion to compel. When: Serve discovery promptly after mediation is ordered so responses arrive before the mediation completion deadline.
2. Ask the court to extend the mediation completion date if documents are outstanding. In clerk-ordered mediations, you can request an extension and the mediator can report status; counties vary, so file early if more time is needed.
3. At or after compliance, proceed with mediation using verified payoff figures. If the case resolves by sale, request in the final order that certain taxable costs, including appropriate mediation expenses, be paid from sale proceeds; if a buyout, incorporate proof-of-funds and closing timelines in the written mediation agreement.

Exceptions & Pitfalls

• Mediation is confidential, but it does not replace discovery. If a document is shown at mediation, you can still request it in formal discovery.
• Lenders may insist on borrower authorization; a properly issued subpoena can address noncooperation.
• Distinguish between a monthly loan statement and a payoff quote; only a dated payoff accounts for per diem interest and fees.
• Failure to attend or to pay the mediator can lead to sanctions; ask the Clerk to apportion fees if fairness or indigence is an issue.
• If disputes inject equitable defenses or complex issues, the Clerk may transfer the matter to Superior Court, but your discovery and subpoena tools remain available.

Talk to a Partition Action Attorney

If you’re facing mediation without reliable payoff, HELOC, or proof-of-funds disclosures, our firm can help you use discovery, subpoenas, and court orders to get the numbers you need to negotiate with confidence. Call us today.

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.