Short Answer

In North Carolina, your contingency fee percentage typically does not increase just because the surplus-funds case takes longer. However, extra costs can arise if co-claimants are missing—think sheriff service, certified mail, skip-tracing, newspaper publication, or a guardian ad litem. The Clerk of Superior Court can apportion these costs among the parties or from the fund. Under a no-upfront-cost agreement, these expenses are usually advanced and then reimbursed from the recovery.

Understanding the Problem

In North Carolina, you want to recover foreclosure surplus funds through the Clerk of Superior Court. You’re asking: if co-claimants can’t be found, will you owe more money because the case takes longer? Here, there are three co-claimants, but you can reach only one. The issue is whether delay-driven steps to notify or protect missing co-claimants change what you pay.

Apply the Law

Surplus-funds disbursement is handled in the foreclosure special proceeding before the Clerk of Superior Court. North Carolina law distinguishes attorney’s fees (governed by your engagement agreement) from court “costs” and necessary expenses (set by statute and local practice). If some claimants are missing, the Clerk can require additional notice steps (including publication) and may appoint a guardian ad litem (GAL) for unknown or unlocatable parties. The Clerk can tax and apportion costs among parties or pay them from the fund. If someone entitled to a share cannot be located, the Clerk may hold that share; if unclaimed long enough, it can be turned over to the State Treasurer under unclaimed property laws.

Key Requirements

• Join and notify all interested claimants: All co-claimants must be joined and properly served before disbursement.
• Use alternative service if needed: If you cannot locate a claimant after due diligence, the Clerk may allow service by publication and/or appoint a GAL to protect that person’s interests.
• Costs are separate from your fee: Court costs (filing, sheriff service, publication, GAL compensation) are treated as “costs” and may be paid from the fund or apportioned among parties.
• Contingency percentage usually stays the same: More time does not increase the agreed percentage; confirm who advances and later recoups expenses.
• Unclaimed shares may be held: The Clerk can hold a missing claimant’s share and, after the statutory dormancy period, remit to the State Treasurer if still unclaimed.

What the Statutes Say

• North Carolina Gen. Stat. § 7A-306 (Special proceeding costs) – Sets court costs for special proceedings in the Clerk’s office.
• North Carolina Gen. Stat. § 6-21 (Taxation of costs) – Allows the court to tax and apportion costs among parties.
• North Carolina Gen. Stat. § 116B-67 (Unclaimed property claims) – Lets rightful owners claim funds after they’re remitted to the State Treasurer.

Analysis

Apply the Rule to the Facts: Because three people claim the surplus and you can reach only one, you’ll likely need extra notice steps to involve the others. Those steps can add costs (service, publication, possible GAL). The Clerk can apportion these costs or pay them from the fund; they do not usually change your contingency percentage. Your updated engagement agreement should spell out that the firm advances modest expenses and recovers them from your share upon disbursement.

Process & Timing

1. Who files: An interested claimant (through counsel). Where: Clerk of Superior Court in the county where the foreclosure special proceeding is pending. What: A petition/motion for disbursement of surplus proceeds in the foreclosure file. When: After the sale finalizes and surplus is deposited with or controlled by the Clerk/trustee.
2. Serve all co-claimants. If some can’t be found after diligent efforts, request service by publication and, if appropriate, appointment of a GAL. These steps typically add weeks (publication plus proof) and modest, county‑dependent costs.
3. Attend a hearing before the Clerk. Expect an order directing disbursement of your share, with the Clerk holding any missing person’s portion until claimed or remitted under unclaimed property laws.

Exceptions & Pitfalls

• Not joining all necessary parties can delay or block disbursement.
• Insufficient diligence before requesting publication can force re‑service and more cost.
• Failure to budget for a GAL when required can stall your hearing; the GAL’s fee may be taxed as a cost.
• Remember that liens or prior claims may be paid from the surplus before any claimant receives funds.

Talk to a Surplus Funds Attorney

If you’re dealing with surplus funds after foreclosure and missing co-claimants are slowing things down, 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.