Short Answer

In North Carolina, file and serve a written motion to continue at least 5 days before the scheduled surplus funds hearing so all parties receive proper notice. The Clerk of Superior Court can allow shorter notice or grant a same-day request for good cause, but you should not rely on that. If you serve by mail, account for the extra 3 days added for mail service. Local scheduling practices can vary by county.

Understanding the Problem

You have a North Carolina surplus funds hearing before the Clerk of Superior Court in a special proceeding after a foreclosure or tax sale. You want to know how early you must file a motion to continue (postpone) because you feel unprepared to address how the proceeds should be distributed and what to do about unpaid property taxes.

Apply the Law

For special proceedings before the Clerk, North Carolina applies core Rules of Civil Procedure unless a specific statute says otherwise. A written motion and its hearing notice must generally be served at least 5 days before the time set for the hearing. The Clerk has broad discretion to control the calendar and may grant a continuance for good cause, including on shorter notice when circumstances warrant. If you serve your motion by mail, add 3 days to the timing calculation. File and serve in the special proceedings (SP) foreclosure file with the Clerk of Superior Court.

Key Requirements

• Five-day motion notice: Serve your written continuance motion and notice at least 5 days before the hearing.
• Service method matters: If serving by mail, add 3 days; plan accordingly so parties receive timely notice.
• Clerk’s discretion/good cause: The Clerk may continue a hearing for good cause, even on shortened notice, especially with party consent.
• Right file and forum: File in the existing special proceedings foreclosure surplus funds file with the Clerk of Superior Court.
• Include reasons and status: Explain why more time is needed (e.g., unresolved distributions, tax issues) and whether other parties consent.

What the Statutes Say

• N.C. Gen. Stat. § 1-393 (Civil Rules apply to special proceedings) – Makes Civil Rules (including motion notice) applicable unless a specific statute differs.
• N.C. R. Civ. P. 6 (Time; 6(d) motion notice; 6(e) mail adds 3 days) – Requires at least 5 days’ notice of written motions and adds 3 days for service by mail.
• N.C. Gen. Stat. § 45-21.31 (Surplus proceeds of foreclosure sale) – Governs handling and distribution of surplus funds after foreclosure.

Analysis

Apply the Rule to the Facts: Because your surplus funds matter is a special proceeding, the motion-notice rule applies. To be safe, file and serve your motion to continue at least 5 days before the hearing. If you must serve by mail, build in 3 extra days. Your reasons—needing time to sort out distribution priorities and unpaid taxes—support good cause, and a written consent from other parties strengthens the request if you are inside the 5-day window.

Process & Timing

1. Who files: The party seeking more time. Where: Clerk of Superior Court, Special Proceedings division (in the existing SP foreclosure file). What: Motion to Continue and Notice of Hearing on Motion (no standard AOC form; use a captioned motion). When: Serve at least 5 days before the hearing; if serving by mail, allow an additional 3 days.
2. Confirm a motion date with the clerk’s office if required by local practice. Provide a brief affidavit or declaration explaining the need for a continuance and whether other parties consent. Many clerks decide on the papers or at a brief motion setting.
3. If granted, the Clerk issues an order continuing the hearing and a new date is set. Serve the continuance order or new notice of hearing on all parties of record.

Exceptions & Pitfalls

• Short-notice requests: If you are within 5 days, explain the urgency and ask the Clerk to shorten time; attach any party consents.
• Service traps: Serve every party of record (including lienholders who appeared). If you use mail, calendar the extra 3 days.
• Local practice: Some counties require contacting the clerk’s scheduler before noticing a motion; check with the Clerk’s office.
• Substantive readiness: The Clerk may ask what tasks will be completed during the continuance (e.g., tax payoff verification, claim priority documents). Be ready to articulate a concrete plan.

Talk to a Surplus Funds Attorney

If you’re facing a surplus funds hearing and need more time to address distributions or taxes, 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.