How can I schedule a hearing for disbursing proceeds in my partition action? – North Carolina

Short Answer

In North Carolina, once the partition sale is reported, the upset-bid period has run, and the sale is confirmed, any party can ask the Clerk of Superior Court to calendar a disbursement hearing in the special proceeding. File a motion (or request) for disbursement with a proposed order and send a Notice of Hearing to all parties. If the clerk’s calendar is not yet open, submit your request and follow up by email; once a date is assigned, serve and file the Notice to lock it in.

Understanding the Problem

You are a co-owner in a North Carolina partition action to sell the property and now need the court to schedule a hearing to distribute the sale proceeds. You’ve contacted the Clerk of Superior Court, but the calendar is not yet open and you want to confirm the hearing date by email to secure it.

Apply the Law

Partition actions are special proceedings before the Clerk of Superior Court in the county where the property lies. After a judicial sale, the sale is reported, a statutory upset-bid window runs, and the sale is confirmed. Funds are then held by the commissioner or deposited with the clerk until the clerk enters an order directing payment of sale costs, resolving liens, and distributing the net to co-owners. Post-pleading notices in the file (like a Notice of Hearing) are typically served under the civil rules for service of subsequent papers.

Key Requirements

• Proper forum: File and calendar before the Clerk of Superior Court in the special proceeding where the partition case is pending.
• Preconditions to disbursement: Report of sale filed, the 10-day upset-bid period expired, and the sale confirmed.
• Motion and proposed order: Submit a motion/request for disbursement with a ledger showing costs, liens, and proposed owner shares, plus a proposed disbursement order.
• Notice to parties: Serve a Notice of Hearing on all parties; after initial service in a special proceeding, subsequent papers are served under Rule 5, which can include email if there is an address of record and a proper certificate of service.
• Priority of payments: Pay sale costs and valid liens from proceeds before distributing the net to co-tenants according to their interests.
• Calendar coordination: If the clerk’s calendar is not open, submit the request, then confirm the assigned date by email and file the Notice to secure it.

What the Statutes Say

• N.C. Gen. Stat. § 1-339.36 (Upset bids) – Sets the 10-day upset-bid period after a report of sale.
• N.C. Gen. Stat. § 1-339.28 (Confirmation of sale) – Provides for confirmation of judicial sales; a judge’s confirmation is required if minors or incompetents hold interests.
• N.C. Gen. Stat. § 1-394 (Special proceeding summons/service) – Governs service of summons in special proceedings; after the case begins, subsequent papers are served under the civil rules.
• N.C. Gen. Stat. § 1-301.2 (Special proceedings—transfer/appeal) – Addresses transfer to superior court if certain issues are raised and appeals from clerk orders.

Analysis

Apply the Rule to the Facts: Your case is a North Carolina partition special proceeding, so the Clerk of Superior Court controls scheduling. Because the justice calendar is not yet open, you can file your motion for disbursement with a proposed order and proposed distribution ledger now, then request a date from the clerk. After the upset-bid period has run and the sale is confirmed, serve a Notice of Hearing on all parties and use email (with a certificate of service) to confirm the clerk’s assigned date.

Process & Timing

1. Who files: Any party (often the commissioner or a co-tenant). Where: Clerk of Superior Court, in the partition special proceeding file in the county where the land is located. What: Motion/Request for Order of Disbursement; proposed Disbursement Order; distribution ledger; proof of sale confirmation; Certificate of Service; Notice of Hearing. When: After the report of sale is filed, the 10-day upset-bid period expires, and the sale is confirmed.
2. Ask the clerk for available dates. If the calendar is not open, submit the request and follow up by email. Once you receive a date, file and serve the Notice of Hearing on all parties under Rule 5 (email service is permitted if an email address is on record with the court and you include a compliant certificate).
3. Attend the hearing. The clerk will address sale costs, liens, and shares, and then enter a written order. The commissioner or clerk will then disburse funds according to the order.

Exceptions & Pitfalls

• Disputes about shares or liens can require an evidentiary hearing; if an issue of fact or equitable relief is raised, the matter may be transferred to superior court.
• Minors or incompetents with interests may require a judge’s confirmation of the sale before disbursement proceeds.
• Do not assume email with the clerk substitutes for notice—file and serve a formal Notice of Hearing on all parties and include a proper certificate of service.
• If the sale has pending upset bids or the confirmation order has not entered, the clerk will not disburse; wait for confirmation.

Talk to a Partition Action Attorney

If you’re dealing with a partition sale and need to get proceeds distributed, 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.