What happens if a motion to continue a foreclosure hearing is filed without a new hearing date and time included? - North Carolina

Short Answer

In North Carolina, a motion to continue a foreclosure hearing that does not include a new hearing date and time may be treated as incomplete for calendaring purposes. The clerk’s office may require the moving party to confirm an available hearing slot, revise the paperwork, and resubmit it or a proposed order with a date and time certain. A motion alone does not continue the hearing; the hearing is continued only when the clerk or court enters an order or otherwise approves the continuance.

Understanding the Problem

In North Carolina, the issue is whether a party in a foreclosure-related file can rely on a previously submitted motion to continue when the filing did not identify the new hearing date and time. The key action is the continuance request, and the key trigger is the court office’s need for a confirmed hearing slot before the matter can be reset. This answer focuses only on what happens to that continuance filing and what must be corrected for the clerk’s office to process it.

Apply the Law

North Carolina foreclosure hearings under a power of sale are heard before the Clerk of Superior Court in the county where the land, or part of the land, is located. In the statutory continuance situations discussed below, the continuance order must give the clerk and the parties a clear reset date, time, and place. Without that information in an order or notice, the clerk cannot reliably calendar the matter, notify parties, or enter an order that moves the hearing to a definite setting.

North Carolina law also generally requires good cause for continuances. In foreclosure matters, the statutes use the phrase “date and time certain” in key continuance situations. That means the new hearing setting should not be open-ended unless a specific statute or local procedure allows it. For a file connected to potential foreclosure surplus funds, the timing of the foreclosure hearing can affect when the foreclosure file moves forward, but it does not decide who receives any surplus funds. For more on the separate surplus-funds process, see this overview of how to find out whether surplus foreclosure funds are available.

Key Requirements

Confirmed reset date and time: The revised motion or proposed order should list the new hearing date, time, and location approved by the clerk’s office.
Good cause for the continuance: The motion should state the reason the current hearing cannot go forward as scheduled and what relief is requested.
Proper filing with the clerk: The corrected paperwork should be filed in the same foreclosure special proceeding with the Clerk of Superior Court handling the foreclosure file.
Notice and service: The moving party should serve the revised motion, notice, and any order as required, then file a certificate of service or other proof required by the clerk.

What the Statutes Say

N.C. Gen. Stat. § 45-21.16 (Notice and hearing) - requires a foreclosure hearing before the clerk and states that certain continued hearings must be reset to a date and time certain.
N.C. Gen. Stat. § 45-21.16C (Owner-occupied residential foreclosure continuance) - allows a clerk to continue certain residential foreclosure hearings for good cause to a date and time certain, generally not more than 60 days from the original hearing date.
N.C. Gen. Stat. § 1A-1, Rule 40(b) (Continuances) - states that a continuance may be granted only on application to the court and for good cause.
N.C. Gen. Stat. § 1A-1, Rule 6(d) (Motion notice timing) - generally requires written motions and notice of hearing to be served at least five days before the hearing unless a different period is set by rule or court order.

Analysis

Apply the Rule to the Facts: The client’s prior motion identified a need to continue the foreclosure hearing, but it did not include the new hearing date and time. Because North Carolina foreclosure continuance practice requires a definite reset date in important settings, the clerk’s office can require revised paperwork before processing the request. The next step is to confirm an available hearing slot with the clerk, revise the motion or proposed order to show that setting, and resubmit the corrected filing with proper service.

Process & Timing

Who files: The party requesting the continuance, or that party’s attorney. Where: The Clerk of Superior Court in the North Carolina county where the foreclosure special proceeding is pending. What: A revised motion to continue, a notice or proposed order showing the new hearing date and time, and a certificate of service. When: As soon as the clerk’s office confirms an available hearing slot and before the current hearing date, if possible.
Confirm the slot first: The moving party should contact the clerk’s office, obtain an available hearing date and time, and confirm any local formatting or eFiling requirements. County practices vary, especially on whether the clerk wants a separate notice of hearing, a proposed order, or both.
Resubmit and serve: After revising the paperwork, the moving party should file it in the foreclosure file and serve all parties who must receive notice. If the continuance relates to a service problem in a power-of-sale foreclosure, the reset date generally must be at least 10 days from the originally scheduled hearing, and notice problems must be corrected.
Wait for approval: The original hearing is not safely continued until the clerk or court approves the continuance or enters an order. Once entered, the order or notice should be sent to parties as required by statute, rule, or the clerk’s instruction.

Exceptions & Pitfalls

Assuming the motion automatically continues the hearing: Filing a motion does not, by itself, remove the hearing from the calendar. The file needs an approved continuance or order.
Leaving the new setting blank: A blank date and time can prevent the clerk from processing the continuance because the clerk cannot reset the case to an uncertain hearing slot.
Missing service requirements: A revised motion or order should be served on the required parties, and proof of service should be filed. Missing service can cause another delay.
Waiting too close to the hearing: If the corrected filing reaches the clerk too late, the hearing may still appear on the calendar, and the moving party may need to appear or request emergency direction from the clerk’s office.
Confusing foreclosure issues with surplus-funds entitlement: A continuance of a foreclosure hearing addresses timing. It does not decide who owns surplus funds, which may require a separate claim or special proceeding before the clerk.

Conclusion

In North Carolina, a motion to continue a foreclosure hearing filed without a new hearing date and time may be deficient for scheduling. The clerk’s office may require the motion to be revised and resubmitted after an available hearing slot is confirmed. The key next step is to file a corrected motion or proposed order with the Clerk of Superior Court showing the new date and time because the existing hearing remains on the calendar until the continuance is approved.

Talk to a Surplus Funds Attorney

If you're dealing with a foreclosure file, a continued hearing, or a surplus-funds issue tied to an estate, 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.