How do I make sure the continued hearing notice is sent to both the respondent and the respondent’s attorney? – NC

Short Answer

In North Carolina, the safest way to make sure notice of a continued clerk hearing goes to both the respondent and the respondent’s attorney is to put both names and mailing addresses in the motion or proposed order and ask the clerk to mail the continuance order to each of them. In foreclosure-related clerk matters, the statutes require notice to the party entitled to notice, and when a hearing is continued, any party who did not receive actual notice of the new date must be sent the continuance order by first-class mail. As a practical step, counsel should also serve all filed continuance papers on both the respondent and counsel and confirm the new hearing date with the clerk before submitting the order if the county requires a date-certain continuance.

Understanding the Problem

The issue is whether, in a North Carolina clerk hearing connected to foreclosure surplus funds, a continued hearing notice will go to both the respondent and the respondent’s attorney when counsel cannot attend the original setting. The decision point is narrow: after a continuance is requested, what must be done so the party and counsel both receive notice of the new date from the clerk or through service of the continuance papers. The answer turns on who is entitled to notice, whether counsel has appeared, and whether the clerk’s office requires a new date to be selected before the continuance order is entered.

Apply the Law

North Carolina foreclosure proceedings and related clerk matters are handled through the clerk of superior court, and notice rules focus first on the party entitled to notice. In the foreclosure hearing statute, the original hearing notice must be served on each party entitled to notice, and if a hearing is continued because service was not completed or was not timely, the continued hearing must be set for a date and time certain at least 10 days later. The statute also says that any party who was timely served but did not receive actual notice of the continued date must be sent the order of continuance by first-class mail. In surplus funds proceedings, claims are decided in a special proceeding before the clerk, so the clerk file, any notice of appearance, and the county’s local continuance practice matter in making sure both the respondent and counsel are included.

Key Requirements

Date certain: A continuance should identify the new hearing date, time, and place so the clerk can issue or enter a clear continuance order.
Notice to the party: The respondent remains a person entitled to notice, so the file should contain the respondent’s correct mailing address for any mailed continuance order.
Notice to counsel of record: If the respondent’s attorney has appeared, the continuance papers should list counsel’s name and address and should be served on counsel as well, so the clerk and all parties have a clear service record.

What the Statutes Say

N.C. Gen. Stat. § 45-21.16 (Notice and hearing) – requires service of foreclosure hearing notice, requires a continued hearing to be set to a date and time certain when service was not timely completed, and requires the continuance order to be mailed by first-class mail to any timely served party who lacks actual notice of the new date.
N.C. Gen. Stat. § 45-21.32 (Special proceeding to determine ownership of surplus) – places foreclosure surplus funds ownership disputes before the clerk of superior court and requires other known claimants to be made parties.

Analysis

Apply the Rule to the Facts: Here, a clerk hearing is already scheduled, but the respondent’s representative has a conflicting hearing and needs a continuance. The practical way to protect notice is to ask for a new date from the clerk first if that county expects a date-certain continuance, then submit a motion or consent order that names both the respondent and the respondent’s attorney in the service block. Because North Carolina practice centers on notice to the party, counsel should not assume notice to the attorney alone replaces notice to the respondent unless the clerk’s file and appearance make that clear under the county’s normal procedure.

If the trustee or foreclosing party is preparing the continuance papers, that party should include both mailing addresses and ask that the signed continuance order be mailed to both recipients. If the respondent’s attorney is requesting the continuance, counsel should still serve the request on all parties and provide the clerk with a proposed order that clearly directs mailing to both the respondent and counsel. That creates a cleaner record if there is later a dispute about whether actual notice of the continued date was received.

Process & Timing

Who files: usually the party requesting the continuance, often through counsel, or the trustee/foreclosing party if handling the calendar setting. Where: with the Clerk of Superior Court in the county where the surplus funds special proceeding or foreclosure matter is pending. What: a written motion to continue or proposed consent order of continuance that states the new hearing date, time, place, and the names and mailing addresses for both the respondent and respondent’s attorney. When: as soon as the conflict is known; if the continuance relates to a foreclosure hearing notice problem, the continued date under G.S. 45-21.16 must be at least 10 days from the original scheduled hearing date.
Next, confirm with the clerk whether the county requires the moving party or trustee to reserve the new hearing date before the order is submitted. Some clerk offices want a date cleared on the calendar first so the order can continue the matter to a specific setting rather than an open-ended future date.
Finally, make sure the signed continuance order is entered and mailed, and separately serve a filed copy on all parties of record. The expected result is a written order or notice in the file showing the continued hearing date and a service trail showing that both the respondent and counsel were sent notice.

Exceptions & Pitfalls

Notice to the respondent is the core statutory requirement, so relying only on informal notice to counsel can create problems if the respondent did not receive actual notice of the new date.
A common mistake is submitting a continuance request without first confirming whether the clerk requires a reserved date and time. That can delay entry of the order or leave the file unclear about the next setting.
Another common mistake is omitting counsel’s notice of appearance or current address from the proposed order. If the attorney has appeared, include counsel in the caption or service block and serve filed papers on both the attorney and the respondent to avoid later notice disputes.

Conclusion

To make sure a continued North Carolina clerk hearing notice goes to both the respondent and the respondent’s attorney, use a continuance order that sets a specific new date and lists both recipients with correct mailing addresses, then serve the filed papers on both. In foreclosure-related matters, the party entitled to notice must receive notice, and if the hearing is reset because of a notice problem, the new hearing should be set for a date and time certain at least 10 days later. The next step is to file the continuance request with the clerk after confirming the new hearing date with that clerk’s office.

Talk to a Surplus Funds Attorney

If a foreclosure surplus funds hearing needs to be continued and there is concern about proper notice to the respondent and counsel, our firm has experienced attorneys who can help explain the filing steps, service issues, and timing. Call us today at [919-341-7055]. For related guidance, see what happens if the trustee will not agree to continue the foreclosure hearing date and what happens at the clerk hearing for surplus funds.

Disclaimer: This article provides general information about NC 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 NC attorney.