What happens if I don’t submit the affidavit of title before the hearing? – North Carolina

Short Answer

In North Carolina surplus-funds cases, failing to file a required affidavit of title before the hearing usually does not end the case permanently, but it can stop the hearing from going forward. The Clerk of Superior Court can continue (reschedule) the hearing, decline to rule on the request until the affidavit is filed, or require additional steps to protect other claimants’ rights. The practical result is delay, added cost, and a higher chance of objections from other parties with counsel.

Understanding the Problem

In North Carolina, a party seeking foreclosure surplus funds through the Clerk of Superior Court may be told that an affidavit of title must be submitted before the hearing. The issue is what happens when that affidavit is not submitted by the deadline the court set. The decision point is whether the Clerk will hear and decide the surplus claim as scheduled or require the missing title affidavit before moving forward.

Apply the Law

Foreclosure surplus funds are often held by the Clerk of Superior Court when there is uncertainty about who is entitled to the surplus or when adverse claims exist. A claimant typically asks the clerk to determine entitlement through a special proceeding. In that setting, the clerk may consider affidavits and recorded-document evidence, and the clerk can require the claimant to provide proof that supports the claimant’s position. An affidavit of title is commonly used for that purpose because it summarizes the chain of title and identifies parties whose recorded interests could affect who gets paid.

Key Requirements

Proper forum and procedure: The claim is usually handled as a special proceeding before the Clerk of Superior Court that decides who is entitled to surplus funds.
All claimants and known interested parties are included: Other persons who filed a claim, or who are known to assert a claim, should be joined so the clerk can resolve competing interests in one case.
Proof of entitlement: The claimant must provide reliable evidence showing why that claimant has priority to the surplus. Courts often expect recorded-document support, and may require an affidavit of title as part of the proof package.

What the Statutes Say

N.C. Gen. Stat. § 45-21.31 (Payment of surplus to the clerk) – Requires surplus to be paid to the Clerk of Superior Court in several common situations, including adverse claims or doubt about entitlement.
N.C. Gen. Stat. § 45-21.32 (Special proceeding to determine ownership of surplus) – Allows a claimant to start a special proceeding before the clerk to determine who is entitled to the surplus and requires other claimants to be made parties.
N.C. Gen. Stat. § 1-339.71 (Special proceeding to determine ownership of surplus) – Provides a similar clerk-based special proceeding framework for surplus funds held by the clerk in certain sale contexts.

Analysis

Apply the Rule to the Facts: The facts describe a surplus-funds request with a hearing being set, multiple parties with counsel, and a court requirement that an affidavit of title be filed before the hearing. Because the clerk’s job is to pay the right person and avoid paying twice when adverse claims may exist, the affidavit of title functions as a key piece of proof and notice. If it is missing, the clerk often cannot comfortably decide priority and may postpone the hearing or refuse to rule until the record is complete.

Process & Timing

Who files: The surplus claimant (or counsel). Where: Office of the Clerk of Superior Court in the county where the foreclosure sale occurred. What: A petition or motion in the surplus-funds special proceeding, plus supporting evidence (often including an affidavit of title and relevant recorded documents). When: By the deadline in the clerk’s notice, scheduling order, or local courthouse instructions; if the clerk set a “before the hearing” deadline, filing after that point can lead to a continuance.
What happens if it is not filed on time: The clerk may continue the hearing to a new date, require the affidavit to be filed by a specific date, and require updated notice to other parties if the new filing could affect their ability to respond.
What happens after the missing affidavit is filed: The clerk may reset the hearing and allow other parties to file responses or objections. If any party’s response raises factual disputes about who owns the funds, the clerk can transfer the matter to the civil issue docket of Superior Court for trial.

Exceptions & Pitfalls

Local practice can be strict: Some clerk’s offices treat “file before the hearing” requirements as mandatory for the hearing to go forward, especially when multiple parties have counsel and priority disputes are likely.
Notice and fairness concerns: Filing key evidence late can trigger requests to continue the hearing so other parties have a fair chance to review and respond.
Factual disputes can change the forum: If late filings lead to contested facts about ownership or priority, the clerk may transfer the matter to Superior Court for a civil trial setting.
Incomplete title work: An affidavit of title that does not address recorded liens, assignments, or other interests can draw objections and delay payment even if it was filed on time.

Conclusion

In North Carolina, surplus funds are commonly held by the Clerk of Superior Court when there is doubt or competing claims, and a claimant may need to prove entitlement through a clerk-run special proceeding. If the clerk required an affidavit of title before the hearing and it is not filed, the clerk will often continue the hearing or decline to rule until the affidavit is submitted and other parties have a chance to respond. The next step is to file the affidavit of title with the Clerk of Superior Court by the deadline set in the clerk’s order or notice.

Talk to a Surplus Funds Attorney

If a surplus-funds hearing is approaching and the clerk’s office requires an affidavit of title (especially where multiple parties have counsel), an attorney can help assemble the title proof, identify who must be served, and reduce avoidable delays. 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.