Short Answer

Usually, yes. In North Carolina, if the problem is a clerical error in the court’s order or the commissioner’s deed (for example, a mistaken legal description), you can ask the Clerk of Superior Court to correct the record under Rule 60(a) and authorize a corrective commissioner’s deed. If unknown heirs were properly brought before the court (service by publication with a guardian ad litem), the foreclosure judgment generally binds them. If they were not properly made parties, additional proceedings may be required to clear title.

Understanding the Problem

You’re the purchaser under a commissioner’s deed from a county foreclosure. You’ve found a mismatch in the property’s legal description and need to fix it with the Clerk of Superior Court. The question is whether you can cure this title issue now that the case named “unknown heirs.”

Apply the Law

North Carolina treats judicial foreclosure sales as judicial sales conducted under Article 29A. A commissioner conveys title under the court’s authority. If the order or deed contains a clerical mistake (like a scrivener’s error in the metes and bounds), the court can correct its record and direct issuance of a corrective deed. Unknown heirs can be bound by the judgment if they were properly served by publication and represented by a guardian ad litem; if a necessary heir or devisee was not made a party, the order is ineffective as to that person. Corrections that change substantive rights or the property sold require fuller relief, sometimes in superior court.

Key Requirements

• Clerical vs. substantive error: A true clerical mistake (e.g., a typo in the legal description) can be corrected in the foreclosure file; a substantive change (e.g., different land) may require reformation or other relief.
• Jurisdiction and forum: File in the foreclosure case with the Clerk of Superior Court; if equitable relief or disputed facts arise, the matter can be transferred to a superior court judge.
• Unknown heirs properly before the court: Service by publication with a guardian ad litem generally binds unknown heirs; missing necessary parties can leave the sale void as to them.
• Judicial sale framework: Commissioner actions and deeds follow the court’s order under the judicial sale statutes; the court can authorize a corrective commissioner’s deed.
• Timing: There is no fixed limitations period for correcting clerical mistakes, but act promptly to minimize risk and downstream transactions.

What the Statutes Say

• N.C. R. Civ. P. 60(a) (Clerical mistakes) – Allows courts to correct clerical errors in orders and the record.
• N.C. Gen. Stat. § 1-339.1 (Judicial sales) – Establishes the framework for judicial sales conducted under court authority.
• N.C. Gen. Stat. § 28A-22-3 (Unknown heirs; publication; guardian ad litem) – Provides a model for binding unknown heirs served by publication with a guardian ad litem.
• N.C. Gen. Stat. § 1-301.2 (Transfer of special proceedings) – Requires transfer to superior court when an equitable defense, issue of fact, or request for equitable relief is raised.

Analysis

Apply the Rule to the Facts: Because your issue is a discrepancy in the legal description on a commissioner’s deed from a judicial foreclosure, the likely path is a clerical correction. You would move in the foreclosure file for an order correcting the description under Rule 60(a) and authorizing a corrective commissioner’s deed. If the case properly included unknown heirs via publication and a guardian ad litem, the judgment generally binds them; if not, title may remain subject to their interests and you may need additional proceedings to cure.

Process & Timing

1. Who files: The purchaser or the commissioner. Where: Clerk of Superior Court in the county where the foreclosure was filed. What: Motion in the foreclosure case seeking a Rule 60(a) correction and authority for a corrective commissioner’s deed; proposed order and proposed corrective deed (no standard AOC form). When: Promptly after discovering the error; sooner is better to avoid downstream complications.
2. Upon filing, the Clerk may set a hearing and require notice to parties of record. If the correction appears clerical and uncontested, the Clerk can enter a corrective order; if relief is substantive or contested, the matter may be transferred to a superior court judge.
3. After entry of the order, the commissioner executes and records the Corrective Commissioner’s Deed along with the corrective order. Obtain certified copies for the file and update the title policy if applicable.

Exceptions & Pitfalls

• If the error changes what land was sold (not just a typo), a simple clerical correction is not available; you may need reformation or other equitable relief before a judge.
• If unknown heirs were not properly served or no guardian ad litem was appointed, the order can be ineffective as to those heirs; additional service or a quiet title action may be required to bind them.
• Confirm the foreclosure type (judicial foreclosure vs. other proceedings); procedures and remedies can differ by case type and county practice.
• Give notice to all parties of record in the foreclosure file; service missteps can delay or derail the correction.

Talk to a Partition Action Attorney

If you’re dealing with a foreclosure commissioner’s deed that has a bad legal description or questions about unknown heirs, our firm has experienced attorneys who can help you understand your options and timelines. Call us today at 919-341-7055.

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.