Detailed Answer
In North Carolina, a partition proceeding divides real property among co‐owners or sells it and distributes the proceeds. The court must have jurisdiction over every person whose rights the division may affect. If a necessary party—like a lender holding a mortgage on the property—does not join the lawsuit, a defendant can move to dismiss under Rule 12(b)(7) of the North Carolina Rules of Civil Procedure (N.C. Gen. Stat. § 1A-1, Rule 12(b)(7)).
Rule 12(b)(7) permits dismissal for failure to join a required party. Rule 19 then guides the court on whether that party is “indispensable.” If a lender’s interest in the land is not represented, the court may find it cannot grant complete relief among the existing parties. The judge may order the plaintiff to add the lender to the action. If the plaintiff cannot join the party, the court may dismiss the entire partition proceeding.
Under the partition statutes (N.C. Gen. Stat. Ch. 46), every person with an interest in the property must appear. Section 46-2 requires the plaintiff to name all owners. Section 46-3 gives the court authority to issue an order once all interests are before it. Failure to include a mortgagee or other encumbrancer can halt the case until that party joins.
In practice, when you file for partition, you should conduct a title search and identify lenders, lienholders and anyone with a recorded interest. If a defendant files a motion to dismiss for nonjoinder, the court will examine whether that lender’s rights might be impaired by the partition. If so, you must file an amended complaint to add the mortgagee. Only once all necessary parties are before the court will the proceeding move forward.
Key Points to Remember
- Identify all parties with recorded interests before filing a partition complaint.
- If a party is missing, a defendant may file a motion to dismiss under Rule 12(b)(7).
- Rule 19 determines whether the missing party is indispensable to the action.
- The court can order joinder of the necessary party or dismiss the case if joinder is impossible.
- Cite the partition statutes (Ch. 46) and civil rules (Rule 12(b)(7) and Rule 19).
When you face a motion to dismiss for a missing lender in a partition case, timely address the joinder issue. Amend your pleadings to include the mortgagee or provide evidence the loan is satisfied. Properly including every party safeguards your case from delay or dismissal.
Need help with a partition or nonjoinder issue? Pierce Law Group has experienced attorneys ready to guide you through North Carolina’s rules. Contact us today by emailing intake@piercelaw.com or calling (919) 341-7055.
