What does the commissioner’s percentage cover, and can that amount be reduced or challenged? – North Carolina

Short Answer

In North Carolina, a commissioner’s percentage is compensation for administering a court-ordered sale and distribution—things like giving notices, coordinating the sale, handling deposits, filing reports, and overseeing disbursement. It is treated as a cost of the proceeding and paid before funds are distributed. The Clerk of Superior Court must approve the amount and may reduce it if it is unreasonable or overlaps with attorney work. Any interested recipient may object before or at the approval hearing, and appeal within the short statutory window.

Understanding the Problem

The issue is whether, in North Carolina surplus funds matters, the commissioner’s “standard percentage” taken before distribution is automatic or reviewable. The decision point is: can recipients of court-held funds seek a reduction of that percentage at the disbursement stage before the Clerk of Superior Court? The question arises when multiple recipients await distribution, attorney’s fees are presented and capped at a brief hearing, and the clerk issues checks after the order and notice period.

Apply the Law

Under North Carolina law, a commissioner’s compensation is not automatic; it is allowed and fixed by the court as a reasonable cost of the sale and distribution process. The percentage is meant to cover the commissioner’s administrative services (notice, sale logistics, deposits, reports, and coordinating payment). Out-of-pocket expenses (advertising, recording, posting, auctioneer fees) are separate items that must be documented. The forum is the Clerk of Superior Court in the county where the proceeding is pending. Objections to the percentage should be raised in writing and at the hearing; appeals from the clerk’s order generally have a short deadline.

Key Requirements

• Court approval: The commissioner’s percentage is allowed and set by the court; it is not self-executing.
• Reasonableness: The court evaluates the work performed, complexity, and local practice to set a reasonable fee.
• No duplication: The percentage should not double-count work separately billed as attorney’s fees.
• Documented costs: Out-of-pocket expenses are reimbursed only with proper documentation and are separate from the percentage.
• Notice and objection: Interested recipients must receive notice and may file written objections and be heard at the approval hearing.
• Taxed as costs: Approved compensation and allowable expenses come “off the top” before net distribution to recipients.

What the Statutes Say

• North Carolina Gen. Stat. § 46A-50 (Partition costs) – court may tax reasonable costs, including compensation tied to sale/administration, as part of the proceeding.
• North Carolina Gen. Stat. § 1-339.11 (Judicial sales: compensation and expenses) – allows the court to provide for compensation and necessary expenses in court-ordered sales.
• North Carolina Gen. Stat. § 46A-102 (Confirmation and distribution) – governs confirmation of a sale and distribution of proceeds under court supervision.

Analysis

Apply the Rule to the Facts: Here, multiple recipients will share court-held funds. The commissioner intends to take a standard percentage before distribution, but that amount must be approved as reasonable by the Clerk of Superior Court and cannot duplicate the capped attorney’s fees presented at the hearing. Any recipient may object to the percentage in writing and at the hearing, asking the clerk to reduce it if the work was limited, routine, or overlaps with counsel’s tasks.

Process & Timing

1. Who files: The commissioner (or moving party) seeks approval of compensation and expenses. Where: Clerk of Superior Court, Special Proceedings/Civil Division, in the county where the case is pending. What: Motion for approval of commissioner compensation and costs; report/accounting; proposed order; and any affidavits/time records. When: Presented at the brief approval/disbursement hearing; objections should be filed before or stated at that hearing.
2. The clerk hears the motion, considers objections, and sets a reasonable amount. If approved, the order authorizes payment of the commissioner’s percentage and any allowed expenses as costs, then sets net amounts for recipients.
3. After the order and the standard short appeal window, the clerk/treasury issues checks. Many clerks allow in-person pickup with photo ID; arrangements are made through the clerk’s office to avoid mailing delays.

Exceptions & Pitfalls

• If no timely objection is made, the court may treat the percentage as uncontested and approve it.
• Do not allow double recovery: separate attorney tasks should not be baked into the commissioner’s percentage.
• Require receipts/invoices for out-of-pocket expenses; undocumented costs can be denied.
• Confirm service of the motion and hearing notice; late or improper notice can delay distribution.
• Coordinate pickup with the clerk; bring ID and ensure the payee name matches the court’s records to prevent delays.

Talk to a Surplus Funds Attorney

If you’re dealing with a court-held surplus and a commissioner’s percentage that seems high, 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.