Detailed Answer

When two or more people own real estate together, each holds an undivided interest in the whole property. If one co-owner falls behind on mortgage payments and the lender schedules a foreclosure sale, the other co-owner(s) can use a partition action to protect their share of the equity and potentially stop the sale.

A partition action is a lawsuit under North Carolina law (see N.C.G.S. § 46-6) that asks the court to divide the property among the owners. When physical division is impractical, the court orders a court-supervised sale and distributes the proceeds among all co-owners and lienholders, including the mortgage lender.

Filing a partition suit can halt foreclosure in two main ways:

• Lis Pendens: As soon as you file, you can record a lis pendens under N.C.G.S. § 1-75.1. This notice warns any buyer that the property is subject to pending litigation. A lender or third-party purchaser will see the cloud on title and often pause a foreclosure sale.
• Preliminary Injunction: In the same lawsuit, you can ask the court for a preliminary injunction under N.C.G.S. § 1-539. A judge may grant a temporary stay of the foreclosure sale to preserve the status quo while the partition case proceeds.

To succeed, you must name all parties with an interest—including co-owners, the mortgagee, and any lienholders—and serve them properly. You should also be prepared to post a bond if the court requires it. The judge will then weigh the factors for an injunction: the strength of your claim, the risk of irreparable harm, the balance of equities, and public interest.

If the court grants the injunction, the foreclosure sale stops until the partition action concludes. The property then sells under court supervision. Each party, including the lender, receives its share of the sale proceeds according to their priority of interest.

Key Steps to Use a Partition Action to Halt Foreclosure

• 1. Record a lis pendens (N.C.G.S. § 1-75.1) to cloud the title before the foreclosure sale.
• 2. File a partition complaint under N.C.G.S. § 46-6.
• 3. Name and serve all co-owners, the lender, and lienholders.
• 4. Request a preliminary injunction (N.C.G.S. § 1-539) to stay the sale.
• 5. Post any bond required by the court to secure the injunction.
• 6. Proceed to partition hearing for a sale or division in kind.
• 7. Distribute sale proceeds among co-owners and creditors per court order.

Take Action Today

If a co-owner’s missed mortgage payments put your home at risk, don’t wait for a foreclosure sale. Pierce Law Group’s attorneys guide co-owners through every step of a partition action under North Carolina law. To protect your interest and seek a court-ordered stay of foreclosure, reach out now.

Email us at intake@piercelaw.com or call (919) 341-7055 to schedule a consultation.