How do I write and file a written answer to the court and properly send a copy to the other side’s attorney? – North Carolina

Short Answer

In North Carolina surplus funds cases, a written “Answer” is a short document filed with the Clerk of Superior Court in the same surplus funds special proceeding. The Answer should identify the case, state the filer’s claimed interest in the surplus funds, and respond to the petition’s key statements (admit, deny, or state lack of knowledge). A copy should also be served on the other side’s attorney, and it is smart to file a simple “Certificate of Service” showing when and how service happened.

Understanding the Problem

In North Carolina, when papers arrive about possible entitlement to surplus funds after a foreclosure, the court process may require a written Answer in a special proceeding. The decision point is whether an Answer must be filed to assert a claim to the surplus funds or to respond to someone else’s claim. The task usually involves preparing a short written Answer, filing it with the Clerk of Superior Court under the correct file number, and sending a copy to the opposing attorney within the time stated in the papers.

Apply the Law

North Carolina law allows a “special proceeding” before the Clerk of Superior Court to decide who owns surplus funds paid into the clerk’s office after certain foreclosure or sale processes. In that type of case, an Answer is the written response that tells the clerk (and the other parties) what is being claimed and what is disputed. If an Answer raises factual disputes about who owns the money, the case can move from the clerk’s special proceeding setting to the Superior Court civil issue docket for trial. Procedures and deadlines can vary based on the notice received and local practice, so the papers’ deadline controls unless the clerk’s office confirms otherwise.

Key Requirements

Correct case identification: The Answer should use the same county, file number, and case caption shown on the surplus funds petition/notice so the clerk files it in the right matter.
Clear statement of the claim or position: The Answer should state the filer’s name and contact information and explain the filer’s interest in the surplus funds (for example, former owner, lienholder, assignee, or other claimant) and what outcome is being requested.
Proper service on the other side: A copy of the filed Answer should be delivered to the opposing party’s attorney using an accepted service method, and the Answer should include (or be accompanied by) a Certificate of Service stating when and how service occurred.

What the Statutes Say

N.C. Gen. Stat. § 45-21.32 (Special proceeding to determine ownership of surplus) – Allows a special proceeding before the clerk to determine who is entitled to surplus funds and provides that factual disputes raised by an answer can transfer the matter for trial.
N.C. Gen. Stat. § 1-339.71 (Special proceeding to determine ownership of surplus) – Similar surplus-funds ownership procedure for certain sale contexts; an answer raising factual issues can trigger transfer for trial and the clerk may require a cost bond in some transferred cases.

Analysis

Apply the Rule to the Facts: Here, the papers state that a claimant may be entitled to money described as surplus funds after a foreclosure process. That typically means a special proceeding exists (or will be filed) with the Clerk of Superior Court to decide who gets the funds. A written Answer is the tool used to (1) identify the claimant and the claimed interest in the funds and (2) tell the clerk what parts of another party’s claim are agreed with or disputed. If the Answer creates a real dispute about ownership facts, the case may move to the Superior Court civil issue docket for trial.

Process & Timing

Who files: The person or entity responding to the surplus funds petition/notice (a claimant or a named defendant). Where: The Clerk of Superior Court in the county where the surplus funds special proceeding is pending. What: A written “Answer” using the case caption and file number shown on the papers, plus a “Certificate of Service.” When: By the deadline stated in the notice/petition or summons; if the papers do not clearly state a deadline, the clerk’s office should be contacted promptly to confirm what applies in that file.
Serve the other side: Send a copy of the Answer to the opposing party’s attorney using a reliable method (commonly mail, hand delivery, or another method accepted in civil cases), and complete the Certificate of Service with the date and method used.
What happens next: The clerk may schedule a hearing to decide entitlement based on filings, or the matter may be transferred for trial if the Answer raises factual issues about ownership. In a transferred case, the clerk can require a cost bond from a party asserting a claim by petition or answer.

Exceptions & Pitfalls

Missing the caption or file number: If the Answer does not match the exact case caption and file number, the clerk may not file it in the correct matter, which can create avoidable deadline problems.
Not stating the interest in the funds: An Answer that does not clearly explain why the filer claims entitlement (and what is being requested) can weaken the position and can lead to confusion at the clerk hearing.
Service problems: Sending the Answer to the wrong attorney, using an unreliable delivery method, or failing to include a Certificate of Service can trigger disputes about whether proper notice occurred.
Creating a factual dispute without support: If the Answer raises factual issues, the case can transfer for trial and may require additional steps, including possible cost-bond requirements in some situations.

Conclusion

In North Carolina, a written Answer in a surplus funds special proceeding is filed with the Clerk of Superior Court under the same file number and should clearly state the filer’s identity, interest in the surplus funds, and position on the petition’s key statements. A copy should also be served on the other side’s attorney, and a Certificate of Service should be included to document when and how service occurred. Next step: file the Answer with the Clerk of Superior Court by the deadline stated on the court papers.

Talk to a Surplus Funds Attorney

If you’re dealing with a North Carolina surplus funds notice after a foreclosure and need to file an Answer and serve the other side correctly, our firm has experienced attorneys who can help explain options, paperwork, 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.