How do I request a continuance to add a party before a scheduled surplus funds hearing? – North Carolina

Short Answer

In North Carolina, file a written Motion to Continue and Motion to Join Necessary Party in the foreclosure special proceeding (SP) before the Clerk of Superior Court. Ask the clerk to add the prior interest holder as a respondent and to reset the hearing so you can serve them under Rule 4 (including by publication if their address is unknown). This protects the record and reduces the risk that any order is challenged by someone who was not properly joined and served.

Understanding the Problem

In North Carolina, how do you ask the Clerk of Superior Court to continue a surplus funds hearing so you can add and serve a prior interest holder as a respondent? A hearing is already set, and the title review shows the previous interest holder assigned their interest during foreclosure.

Apply the Law

North Carolina’s foreclosure surplus proceeds are handled in the foreclosure special proceeding before the Clerk of Superior Court. If someone with a material claim to the surplus is missing, they should be added and served before the clerk decides entitlement. The Rules of Civil Procedure apply to joinder and service, and special proceeding practice controls the summons and answer timing.

Key Requirements

• Good cause for continuance: Show why a short delay is needed (to add and serve a necessary party) so the clerk can hear all claims fairly.
• Necessary party: Anyone whose rights to the surplus will be directly affected should be joined before the hearing.
• Joinder mechanism: Ask the clerk to add the party and issue a special proceeding summons so they can participate.
• Proper service: Serve the summons and pleading under Rule 4. In special proceedings, the respondent typically has 10 days to answer after service.
• If address unknown: After diligent efforts to locate the party, seek leave for service by publication; publication runs once a week for three successive weeks and gives the respondent 40 days from first publication to respond.
• SCRA declaration: Before any order affecting a non-appearing respondent, file a Servicemembers Civil Relief Act declaration for that person.

What the Statutes Say

• North Carolina Gen. Stat. § 45-21.31 (Distribution of foreclosure sale proceeds) – Sets the order of disbursements, with any surplus paid to those entitled.
• North Carolina Gen. Stat. § 1-394 (Special proceeding summons) – Requires issuance of a special proceeding summons and a 10-day answer period.
• North Carolina R. Civ. P. 19 (Necessary joinder of parties) – The court must join a party needed for a complete determination.
• North Carolina R. Civ. P. 4 (Service of process, including publication) – Governs service methods, including publication when an address cannot be found with due diligence.

Analysis

Apply the Rule to the Facts: Because the previous interest holder assigned their interest during foreclosure, they have a material, direct stake in any surplus and should be joined. A motion showing good cause (to add and serve a necessary party) supports a continuance. If you cannot find contact details despite due diligence, the clerk can allow service by publication; the hearing should be reset to allow the 40‑day response period after first publication to run.

Process & Timing

1. Who files: The surplus claimant or party seeking joinder. Where: Clerk of Superior Court in the county and SP case where the foreclosure was handled. What: Motion to Continue and Motion to Join Necessary Party, with proposed order; request issuance of Special Proceedings Summons (AOC‑SP‑100). When: File as soon as the need is identified and before the scheduled hearing.
2. After the clerk orders joinder, obtain issuance of AOC‑SP‑100 and serve the added respondent under Rule 4 (sheriff, certified mail, or delivery service). If address is unknown, file an affidavit of due diligence and seek leave for service by publication; publish once a week for three consecutive weeks and obtain the publisher’s affidavit.
3. After service: if personally served, the respondent typically has 10 days to answer in a special proceeding; if served by publication, they have 40 days from the first publication date. Ask the clerk to reset the surplus hearing after that response window. Expect the clerk to hold the funds until all joined parties have had notice and a chance to be heard. Consider filing an SCRA declaration (AOC‑G‑250) for any non‑appearing respondent.

Exceptions & Pitfalls

• Insufficient diligence before publication: Document specific searches (title records, prior pleadings, mail returns, directories) before requesting publication.
• Wrong summons type: Use the Special Proceedings Summons (AOC‑SP‑100) for the foreclosure SP file.
• Incomplete publication notice: Ensure the notice identifies the court and case, the relief sought, and the 40‑day response period; file both your due‑diligence affidavit and the publisher’s affidavit.
• Skipping SCRA: Before orders affecting non‑appearing parties, file the SCRA declaration; some clerks will not enter orders without it.
• Scheduling too soon: Reset the hearing to allow the 10‑day (personal service) or 40‑day (publication) response period to elapse; otherwise you risk later challenges.

Talk to a Surplus Funds Attorney

If you’re facing a surplus funds hearing and need time to add and serve a missing claimant, 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.