Short Answer

Yes—under North Carolina law you can ask a Superior Court judge to temporarily stop a power-of-sale foreclosure while a court-supervised sale (partition or estate sale) is arranged, but you must act before the foreclosure purchaser’s rights become fixed. You may also be able to obtain a short continuance in the foreclosure proceeding or cure the default before the sale. If a will authorizes the personal representative to sell, an estate sale can proceed and pay off the mortgage at closing.

Understanding the Problem

You are an heir-respondent in a North Carolina partition case over a co-owned home that is already in foreclosure. Your question is focused on one decision point: can you delay or stop the foreclosure long enough for the court-supervised sale to close so the loan can be paid from the sale proceeds?

Apply the Law

North Carolina handles power-of-sale foreclosures as special proceedings before the Clerk of Superior Court, while partition sales are separate special proceedings. To pause a foreclosure, the usual routes are: (1) ask a Superior Court judge for an injunction stopping the sale, (2) seek a brief continuance in the foreclosure, and/or (3) promptly move forward with an estate or partition sale that will pay the deed of trust from closing. If a will gives the personal representative authority to sell, the estate sale can often be the most direct way to satisfy the lender and distribute the net to heirs.

Key Requirements

• Standing: You must be an owner, heir/devisee, or other party with a right in the property to ask for relief.
• Timing: You must seek an injunction before the foreclosure purchaser’s rights become fixed (generally after the 10‑day upset bid period expires).
• Grounds for injunction: Show a legal basis—such as irregularity, lack of authority, or that a coordinated court sale will protect all parties (including the lender) without prejudice.
• Correct forum: Injunction requests go to a Superior Court judge; foreclosure hearings and upset bids are handled by the Clerk of Superior Court.
• Payoff at closing: In a court‑approved estate or partition sale, liened debts (like the deed of trust) are paid first from the sale proceeds, with the net then divided.
• Carrying costs and credits: Necessary taxes, insurance, interest, and similar preservation costs can be addressed from the common fund and adjusted among co‑owners on distribution.

What the Statutes Say

• North Carolina Gen. Stat. § 45-21.16 (Foreclosure hearing before the Clerk) – Sets the foreclosure hearing and required findings.
• North Carolina Gen. Stat. § 45-21.27 (Upset bids) – Creates the 10‑day upset bid period and when bidding closes.
• North Carolina Gen. Stat. § 45-21.34 (Injunction to enjoin foreclosure sale) – Allows a judge to enjoin a sale before rights become fixed.
• North Carolina Gen. Stat. § 28A-15-1 (Using estate assets to pay claims) – Permits using real property to pay debts when in the estate’s best interest; ties into court‑approved sales.

Analysis

Apply the Rule to the Facts: Because a will directs a sale and equal division, the personal representative may be able to sell the property through the estate and pay the deed of trust from closing, avoiding foreclosure. If the foreclosure is imminent, you can ask a Superior Court judge to enjoin the sale before rights become fixed, showing that a court‑supervised sale will promptly satisfy the lender and protect all parties. As for another heir’s claim that you alone must cover foreclosure or sale expenses, those necessary costs are typically handled from the common fund and adjusted among co‑owners at distribution, not charged solely to one heir.

Process & Timing

1. Who files: An owner/heir (or the personal representative). Where: For an injunction, file in Superior Court; the foreclosure itself is in the office of the Clerk of Superior Court in the county where the property sits; the partition is a separate special proceeding with the Clerk. What: File a verified complaint and motion for temporary restraining order/preliminary injunction to enjoin the sale; in parallel, move the estate/partition sale forward (estate petitions and judicial sale orders use standard Article 29A procedures). When: File the injunction before the foreclosure purchaser’s rights become fixed (generally before sale or, at latest, before the upset‑bid period expires).
2. Request a short continuance in the foreclosure proceeding from the Clerk if needed to allow the court‑supervised sale to be noticed and scheduled; obtain a written payoff from the lender and coordinate closing so the deed of trust is paid at settlement. Timing varies by county.
3. Close the estate/partition sale; the Clerk confirms the sale; the closing attorney pays the deed of trust and other liens from proceeds; the court then distributes the net among co‑owners/heirs, with any approved credits or adjustments.

Exceptions & Pitfalls

• A partition sale cannot wipe out a senior deed of trust; the loan must be paid from sale proceeds or otherwise satisfied.
• Courts require a legal basis to enjoin a sale; “we think we’ll get a better price later” by itself is usually not enough.
• If you intend to cure or reinstate, get an up‑to‑date written reinstatement/payoff that includes costs and trustee fees; partial payments may not halt the sale.
• Serve the trustee and secured creditor promptly in any injunction request; lack of notice can derail relief.
• Bankruptcy by an owner triggers an automatic stay that pauses foreclosure; procedures and timing vary.
• Disputes over taxes, insurance, or repair credits should be documented and raised in the partition/estate proceeding so the Clerk can adjust shares fairly.

Talk to a Partition Action Attorney

If you’re dealing with a foreclosure on a co‑owned home while a partition or estate sale is pending, 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.