Can I file a motion to dismiss if the other side claims they never got my extension request? – North Carolina

Short Answer

Yes, you can move to dismiss under North Carolina law, but the better first step in a partition case is usually to ask the Clerk of Superior Court to order joinder of any required parties and to recognize your extension if it was properly granted and served. An extension request is a motion served under Rule 5 (not Rule 4), and a court-approved enlargement of time remains valid if you served it correctly and filed a certificate of service. A pleading that omits a necessary party is typically cured by joinder rather than outright dismissal.

Understanding the Problem

In North Carolina, can you ask the court to dismiss a partition case when the other side says they never received your court-approved extension request? Here, the petitioner left out the mortgage lender from the original filing. You want to file a response and a motion to dismiss for defective pleadings, then pursue your own partition petition.

Apply the Law

North Carolina partition actions are special proceedings filed with the Clerk of Superior Court in the county where the land sits. The Rules of Civil Procedure apply to core issues like joining necessary parties (Rule 19), motions to dismiss for failure to join (Rule 12(b)(7)), and time extensions (Rule 6). Initial petitions are served with a special proceeding summons under Rule 4; later motions, like an extension request, are served under Rule 5 with a certificate of service. When a necessary party is missing, the usual remedy is an order to join that party, not immediate dismissal.

Key Requirements

• Valid extension: A court may enlarge your time under Rule 6; you must serve your motion/order under Rule 5 and file a certificate of service.
• Service of later filings: After the petition and summons, serve motions and notices per Rule 5; e-filing notifications may supplement but do not replace your certificate of service.
• Necessary parties: All co-owners and lienholders with a direct interest (such as the mortgage holder/beneficiary of a recorded deed of trust) must be joined so the Clerk can fully resolve the matter.
• Preferred remedy: If a necessary party was omitted, the court typically orders joinder under Rule 19; dismissal is generally reserved for situations where joinder is not feasible.
• Forum and timing: File in the Clerk of Superior Court; a respondent generally has 10 days to answer a special proceeding after Rule 4 service unless extended.

What the Statutes Say

• Rule 12(b)(7) (Failure to join a necessary party) – Lets you move to dismiss for non-joinder.
• Rule 19 (Necessary joinder of parties) – Court should order joinder when a complete determination requires the party.
• Rule 5 (Service of subsequent pleadings) – Governs service of motions like extension requests; requires certificate of service.
• Rule 6(b) (Enlargement of time) – Allows the court to extend deadlines for good cause.

Analysis

Apply the Rule to the Facts: Your extension stands if the Clerk granted it and you served your motion/order under Rule 5 with a certificate of service; a lack-of-notice claim is weaker when your Rule 5 proof is in the file. Because the petition omitted a necessary party (the mortgage interest holder), a Rule 12(b)(7) motion is appropriate, but the Clerk will usually order joinder under Rule 19 rather than dismiss outright. Once the lender/beneficiary is added and properly served by Rule 4 summons, the case proceeds on the merits.

Process & Timing

1. Who files: The responding co-owner. Where: Clerk of Superior Court in the county where the property is located. What: File (a) a Rule 12(b)(7) motion (or motion to require joinder) and (b) your response; attach your Rule 5 certificate of service for the prior extension request/order. For special proceedings, use the Special Proceedings Summons (AOC-SP-100) when adding parties. When: Within the 10-day answer window or within your enlarged time under a valid Rule 6(b) order.
2. The Clerk typically hears the Rule 12/Rule 19 issues first and will order joinder of the mortgage interest holder if needed. The petitioner must amend, and the added party must be served under Rule 4; allow time for issuance and service of a special proceeding summons.
3. After all necessary parties are joined and served, the matter proceeds toward a partition in kind or by sale, with the Clerk handling procedural steps or transferring disputed legal/equitable issues to Superior Court if required.

Exceptions & Pitfalls

• If you did not serve your extension motion/order under Rule 5 with a proper certificate of service, the Clerk may revisit deadlines—re-serve promptly and document service.
• Do not rely solely on e-portal notifications; always include a Rule 5 certificate of service for motions and notices.
• Identify the correct mortgage interest holder. Check assignments and servicing, and name the current deed-of-trust beneficiary (and other lienholders) to avoid repeat joinder issues.
• If you assert broader equitable defenses or complex title disputes, the Clerk may transfer those issues to Superior Court, which can affect timing.

Talk to a Partition Action Attorney

If you’re facing a partition case with missing parties or service disputes, 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.