What documents do I need to prove the current mortgage servicer and assignment in a partition action? – North Carolina

Short Answer

In a North Carolina partition action, bring certified Register of Deeds copies of the recorded deed of trust and all recorded assignments to show the current lienholder, and written proof of any servicing transfer to show the current servicer. If the chain is unclear, add a recent payoff letter or business-records affidavit from the servicer, and be ready to subpoena records. Join the current lienholder (and trustee of record, if applicable) as necessary parties and serve them under the Rules of Civil Procedure.

Understanding the Problem

You’re in North Carolina, and you need to prove who currently holds or services a deed of trust tied to the co-owned property in your partition case. You want to know exactly what documents establish the current mortgage holder and servicer so you can join the right parties and protect the lien at sale. One key fact: opposing counsel did not name the mortgage lender, and you plan to respond and move to dismiss for failure to join necessary parties.

Apply the Law

North Carolina partition cases are special proceedings started in the county where the land sits and typically begin before the Clerk of Superior Court. All persons with materially affected interests must be joined so the court can enter complete relief, and service must comply with the Rules of Civil Procedure. When a deed of trust encumbers the property, the current beneficiary/assignee (and often the trustee of record) should be joined because the partition can lead to a sale and distribution of proceeds subject to liens. To prove who to join and how to protect the lien, rely on the public record for ownership of the lien and on business records for servicing.

Key Requirements

• Recorded chain of lien ownership: Obtain certified Register of Deeds copies of the deed of trust and every recorded assignment to identify the current beneficiary/assignee and the trustee of record.
• Servicer identification: Gather written servicing transfer notices, a recent payoff letter on servicer letterhead, or a business-records affidavit from the servicer to show who services the loan today.
• Joinder of necessary parties: Name and serve the current lienholder/assignee and, if applicable, the deed of trust’s trustee; include the servicer if you seek payoff figures or orders affecting collection.
• Proper service and notice: Have the Clerk issue summonses and serve new parties under Rule 4; serve later motions and notices under Rule 5 with a certificate of service.
• Admissible proof: Use certified Register of Deeds copies and, for servicer records, a custodian declaration or subpoena to satisfy evidentiary foundations if contested.

What the Statutes Say

• North Carolina Gen. Stat., Chapter 46A (Partition) – Procedures for partition, parties, and sale with protection of liens.
• North Carolina Gen. Stat. § 1A-1 (Rules 12 and 19) – Motion to dismiss for failure to join a necessary party; necessary joinder of parties.
• North Carolina Gen. Stat., Chapter 1, Article 11A (Lis Pendens) – Recording notice of a pending action affecting real property.

Analysis

Apply the Rule to the Facts: Because opposing counsel omitted the mortgage lender, a motion to dismiss for failure to join necessary parties fits: the lienholder’s rights are directly affected by a partition sale. To identify whom to join, pull certified Register of Deeds copies of the original deed of trust and any assignments to confirm the current beneficiary and trustee of record. Since servicing has changed, add the most recent servicing transfer notice or payoff letter to confirm the current servicer, and be ready to use a business-records affidavit if the other side challenges admissibility.

Process & Timing

1. Who files: The co-owner/respondent. Where: Clerk of Superior Court in the county where the property is located. What: File (a) a response and a Rule 12 motion to dismiss for failure to join necessary parties; (b) a notice of lis pendens in the civil action and record it with the Register of Deeds; and (c) after dismissal or amendment, your partition petition naming all cotenants and lienholders. When: File the response and motion by the deadline in your summons/notice; file the lis pendens when you file your petition or as soon as practicable.
2. Gather proof: Order certified copies from the Register of Deeds of the deed of trust and all recorded assignments; obtain the latest servicing transfer notice or payoff letter. If needed, issue a Rule 45 subpoena or request a custodian declaration from the servicer. Expect 1–3 weeks depending on county response times and the servicer.
3. Joinder and hearing: Move to amend or request an order directing joinder of the current lienholder/assignee (and trustee, if applicable). The Clerk issues summonses; serve new parties under Rule 4 and allow their response period. At the first hearing, present certified ROD documents and servicer records so the court can confirm parties and proceed toward in-kind division or sale with lien protection from proceeds.

Exceptions & Pitfalls

• MERS on the deed of trust: If MERS is the record beneficiary, look for a recorded assignment from MERS to the current investor; join the assignee actually holding the lien.
• Unrecorded or late-recorded assignments: The Register of Deeds controls priority notice. If the paper trail is incomplete, use a subpoena or business-records affidavit to bridge the gap and consider joining both the last recorded beneficiary and the claimed assignee.
• Servicer vs. owner: The servicer is an agent. Join the current beneficiary/noteholder to protect the lien. Include the servicer when you need payoff figures or relief that impacts collection.
• Service on financial institutions: Serve corporate parties through their registered agent or as Rule 4 requires; defective service can delay or undo orders.
• Hearsay and foundation: Bring certified ROD copies and a custodian declaration for servicer records to avoid evidentiary objections.
• E-filing notice disputes: After initial Rule 4 service, serve later filings under Rule 5 with a clear certificate of service; if the other side claims no notice of an extension obtained via the e-portal, file your proof of service promptly.

Talk to a Partition Action Attorney

If you’re dealing with a partition case that involves a mortgage and changing servicers, 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.