North Carolina Judicial Branch

What is custody mediation?

Mediation is a conversation between parents that is guided by a neutral third party, or “mediator,” who works for the court. Parents meet together with the mediator to talk about child custody, share information and make decisions together to avoid having a trial. A custody case must be filed to participate in the courts’ Child Custody and Visitation Mediation Program.

What are the advantages of custody mediation?

Mediators are trained to help parents work through their difficulties and find the best child custody solutions for their family. This allows parents to avoid the stress, anxiety, time, and expense of going to court, and ensures that decisions about the children’s lives are made by the adults who know them best and are responsible for raising them.

Is everyone required to go to mediation?

Yes, in general. The parents and anyone else making a legal claim for custody of the children are required to attend unless a judge “waives” mediation, meaning that the parties are legally excused from attending. Waiver does not happen automatically. If you want mediation to be waived, you must file a Motion and Order to Waive Custody Mediation, which can be found online or in person in the Custody Mediation Office. The judge will then decide whether to waive mediation in your case. Valid reasons to waive mediation include: you live more than fifty (50) miles from the court; the other party has abused you or the children; the other party suffers from alcoholism, drug addiction or severe psychiatric or psychological problems; or you have agreed to a private mediation.

How does custody mediation work?

After a custody case is filed, the parties are required to attend an orientation class. After that, there will be a mediation session of up to two hours. If you need additional time, another session can be scheduled at the mediator’s discretion if the parties agree. If you reach an agreement in mediation, the mediator will prepare a written Parenting Agreement, which will be signed by the parties and a judge.

How do I sign up for custody mediation?

This process varies by county. A custody case must be filed to participate in the courts’ Child Custody and Visitation Mediation Program. You should ask about signing up when you file your case. If someone else files a case against you, you should receive information about your orientation class in the mail.

Do I have to pay for custody mediation?

No. The courts provide custody mediation free of charge.

What is orientation?

Orientation is a group class that prepares people for mediation. Orientation is usually scheduled within 30 days of the date the case is sent to the Custody Mediation Program. The other person or people involved in your case may be at the same orientation session, but you are not required to talk to each other or make decisions at orientation.

Can the mediator make decisions about my case?

No. The mediator does not decide who is right or wrong and does not make any decisions about child custody. The mediator’s job is to guide the parents’ discussion of the children’s needs and the parents’ concerns, and to help the parents reach an agreement if possible.

Do I need to bring evidence to custody mediation?

No. Custody mediation is about agreeing on a solution for your case, not proving it, and you are not expected to agree about things that happened in the past. Having evidence to present to the court is important if you cannot resolve your case in mediation and your case has to be decided by a judge.

Do I need an attorney for mediation?

Attorneys do not attend mediation sessions through the Custody Mediation Program. However, it is recommended that anyone with a child custody or visitation case consult an attorney to learn about their legal rights and obligations, and to review the draft of the Parenting Agreement, even if the case does not go to trial.

Can we make decisions about child support in mediation?

No. Custody mediation helps parents make decisions only about child custody and visitation, not financial issues. You can file for child support through your county’s Child Support Enforcement office.

Will the mediator tell the judge what we said in mediation?

No. The discussions in mediation sessions are private. The mediator will not share information discussed in the session with others, including the judge or attorneys. This rule does not apply if the mediator has concerns about unreported child abuse, hears threats to harm someone, or witnesses a crime.

What happens if we reach an agreement in mediation?

The mediator will write a draft of the Parenting Agreement and send it for review to the parties, and to their attorneys, if they are represented. If possible, parents should meet with an attorney before signing a Parenting Agreement. After the parties sign the agreement, a judge will review and sign it.

Is a Parenting Agreement legally binding?

Yes. Once a judge signs it, your Parenting Agreement becomes a court order. The agreement then has the same legal effect as if the judge had decided the custody case after a trial. Once the order is signed, the parties cannot change it without additional court action. Parties can be held in contempt of court for violating the signed Parenting Agreement.

What if we don’t agree in mediation?

If there is no agreement in mediation, one of the parties will need to schedule the case for trial. If you have not yet hired an attorney, it is recommended that you do so. Attorneys are often able to negotiate a resolution before trial. Otherwise, a judge will hear and decide your case.

What if a custody case involves a nonparent?

In some situations, grandparents or other third parties may file a claim for child custody. All parties to the case, including nonparents, must attend mediation. It is especially important for anyone involved in a case with a nonparent to contact an attorney for more information about their rights and obligations.

How can I make a complaint about mediation?

Any complaints about mediation or a specific mediator should be in writing and can be mailed to the Chief District Court Judge of the judicial district where the mediation took place.

What is family law?

Family law judges hear domestic and child welfare matters and receive specialized training to increase their expertise. North Carolina district courts consolidate and assign a family's legal issues before a single district court judge or team of judges. This allows judges to become familiar with and better address each family's issues, and keeps families from having to recount their history for multiple judges at each hearing. Parent education programs also may be available. Learn more.

What are the requirements to get married in North Carolina?

Both parties must intend to marry, must not be currently married to anyone else, and must be able to understand their actions. Both parties must be at least 18 years old, unless specific requirements for minors are met. The parties cannot be more closely related than first cousins, and cannot be double first cousins (for instance, the children of two sisters who married two brothers). The couple must get a marriage license before their wedding.

What are the requirements for someone under 18 to marry?

Minors ages 16 and 17 may marry a person no more than four years older and must file with the Register of Deeds a written consent to the marriage signed by a parent with sole or joint legal custody, or by a person, agency, or institution that has legal custody of the minor or is serving as the minor’s legal guardian or a certified copy of an order issued by a district court authorizing the marriage as provided in G.S. 51-2.1.

You can find a copy of the complaint form needed to file the case here.

Minors under the age of 16 may not marry.

What are the requirements for a marriage ceremony?

Couples who want to marry must obtain a marriage license before the ceremony. The marriage ceremony must be conducted by a recognized officiant. Both parties must solemnly declare their intent to marry. Following the ceremony, at least two witnesses are required to sign the marriage license.

Is a medical exam or pre-marital counseling required before marriage?

No.

What are the legal consequences of marriage?

Marriage creates many legal rights and obligations, including in the areas of property, financial obligations, inheritance, taxes, and more. You should contact an attorney or tax professional with any questions.

How do I get a marriage license?

Couples getting married in North Carolina must get a marriage license before the wedding. If your wedding will be in North Carolina, you can get a marriage license from the Register of Deeds in any county in the state. In general, both partners must visit the Register of Deeds office, though some counties allow online applications to be submitted before visiting the office to save time. Applicants for a marriage license must pay a fee and fill out a form stating their names, ages, marital status, and intention to marry.

Applicants must provide either a Social Security number or a notarized statement that the applicant is ineligible to receive a Social Security number. The Register of Deeds may require proof of age, such as a government-issued ID or birth certificate. The Register of Deeds may also require proof of divorce if either partner was previously married. Because requirements can vary, you should contact the Register of Deeds in your county with any specific questions.

How long before the wedding do I need to apply for a marriage license?

The marriage license must be issued before the wedding. North Carolina has no required waiting period between the issuance of the marriage license and the wedding. A marriage license expires after 60 days if the wedding has not taken place, and applicants must apply again if the wedding does not occur within 60 days.

Who can officiate a wedding in North Carolina?

A wedding can be performed by a magistrate or by any minister who is ordained in a religious denomination or authorized by a church. Marriages can also be performed in the recognized manner of any religious denomination that does not use officiants, or in the recognized manner of any federally or state-recognized Native American tribe.

How can I arrange to have a magistrate perform my wedding?

You should contact the magistrate’s office in your county, because availability varies by county.

Can a judge perform my wedding?

No. Judges cannot perform marriages in North Carolina.

Are prenuptial agreements (“prenups”) legal in North Carolina?

Yes. Prenuptial agreements are legal and enforceable as long as all legal requirements are met. Prenuptial agreements can be used to determine property and inheritance rights and to change or eliminate the right to spousal support if the marriage ends.

What are the requirements for a prenuptial agreement?

To be valid, the prenuptial agreement must be in writing and signed by both parties before the marriage. A prenuptial agreement cannot limit the child support that a child would otherwise receive.

What are my rights as an employee who is the victim of domestic violence?

Your employer should not penalize you for taking time off to go to court for a Domestic Violence Protective Order (DVPO). You are required to follow your employer’s usual time-off policy or procedure. If your employer requires written documentation to explain your absence, you can ask the clerk of court to provide you with a note.

What are my rights as a tenant who is the victim of domestic violence?

A landlord cannot discriminate against a tenant because the tenant is a victim of domestic violence.

You may terminate your lease on 30 days’ notice to your landlord if you give your landlord a copy of either 1) a DVPO or 50C order that was issued after the defendant was served (this does not include an ex parte order), 2) a criminal order that prohibits the defendant from having contact with you, or 3) an Address Confidentiality Program card. You must also give your landlord a copy of a safety plan, which you can create with the help of your local domestic violence or sexual assault agency. Once you submit these documents, your landlord can charge you rent for the following 30 days, but cannot charge other fees for early termination, such as refusing to return your security deposit.

If the perpetrator is not on the lease for your home, you can request that your landlord change the locks and do not need to provide documentation of the domestic violence. The landlord is required to either change the locks or allow you to do so. If the perpetrator is on your lease, the landlord is required to change the locks if you give the landlord a copy of a DVPO or other court order requiring the perpetrator to stay away from your home. The landlord can charge you for the cost of changing the locks.

What is the Address Confidentiality Program?

The Address Confidentiality Program is a program operated by the North Carolina Attorney General’s Office to keep the addresses of victims of domestic violence, sexual assault, and stalking out of public records. You can learn more about this program and sign up by calling (919) 716-6785 or visiting the program’s website. Your local domestic violence agency also may be able to assist you in signing up for this program.

What is the Victim Compensation Program?

The Victim Compensation Program is a program run by North Carolina state government to pay the medical bills and lost wages of victims resulting from crime, including domestic violence and sexual assault. You can learn more about this program and submit an application for assistance by calling (919) 733-7974 or visiting the program’s website. Your local domestic violence agency also may be able to assist you with your application.

How will getting a DVPO affect my child custody case?

Judges are required to consider domestic violence as a factor in child custody cases, whether or not there is a DVPO. The judge will also consider all other relevant factors in the case, including anything that affects the best interests of the child. You should consult with an attorney about your specific situation.

What is eviction?

Eviction is a type of court case. In North Carolina, an eviction case is called “summary ejectment.” Landlords can file to legally remove a tenant rented property if the tenant has failed to pay rent, violated the lease agreement, or if other conditions apply.

Can a landlord evict a tenant without going to court?

Landlords cannot force tenants out of their homes without going to court, for instance, by changing the locks, turning off utilities or removing the doors. Landlords may send tenants “eviction notices” warning tenants that they plan to file for eviction unless the tenant moves out first. In general, landlords are not required to send an eviction notice before filing an eviction. An eviction notice allows the tenant to choose to voluntarily move out to avoid the court process.

What is a landlord required to do to get an eviction?

The landlord must file a “Complaint in Summary Ejectment” with the clerk of court. In court, the landlord must prove that grounds for eviction exist. Landlords can evict tenants under the following circumstances:

1. The tenant did not pay rent, the landlord made a demand for rent and waited 10 days, but the tenant still has not paid the rent.
2. The lease has ended, but the tenant has not moved out.
3. The tenant has violated a condition of the lease allowing for eviction. This may include failure to pay rent if the lease includes appropriate language.
4. Criminal activity has occurred for which the tenant can be held responsible.

What if I want to get someone out of my home, but we never signed a lease?

Leases can be written or oral. However, a person allowed to live in someone else’s home without any agreement to pay rent or become a tenant is a guest. The eviction process is intended for tenants, and also gives tenants certain rights, including written notice of the claims against them and the opportunity for a hearing in which they can present a defense. Guests do not have these rights, and guests who refuse to leave the property may be removed either by the police or through a trespass warrant issued by a magistrate.

Can I be evicted if I was unable to pay the rent for a good reason?

Yes. Failing to pay rent is grounds for eviction even if it is not your fault that you were unable to pay.

Will evictions show up on my record?

Evictions are not criminal and will not show up in a criminal record. However, evictions are public record, which may appear in credit reports or affect the tenant’s ability to qualify for another lease.

What if I live in public housing or have a Section 8 voucher?

Tenants who live in public housing or receive subsidized housing vouchers have more rights than tenants renting from private landlords without assistance. You should seek legal assistance if you are in public housing or have a housing voucher and are being evicted, because an eviction could affect your right to receive further housing assistance.

What if I own a mobile home and rent a lot?

When a landlord rents a lot to a mobile home owner and wants to end the lease, the landlord must give 60 days’ notice. However, if the tenant fails to pay rent or breaches the lease, the landlord can evict the tenant on the same timeline as any other tenant. Tenants who own their mobile homes are responsible for the cost of moving the mobile home. Local zoning regulations may also affect owners’ ability to move an old mobile home.

What notice does a tenant get of the eviction?

The landlord must have the tenant “served” with the court paperwork, either by certified mail, return receipt requested, or by paying the sheriff to deliver the paperwork. If the landlord arranges to have the sheriff serve the tenant, the sheriff must first attempt to contact the tenant to serve him or her personally. If this fails, the sheriff can serve the tenant by posting the paperwork on the door of the property. This is proper notice even if the tenant does not actually see the paperwork. However, if the tenant is served only by posting and does not appear in court, the court cannot order the tenant to pay any money, including past due rent, to the landlord.

Who decides eviction cases?

Eviction cases are typically handled in small claims court, where they are decided by a magistrate. If either the landlord or the tenant appeals, the case will go to District Court, where there will be a new hearing before a judge.

What happens in small claims court?

Small claims court can be held in a courtroom or in the magistrate’s office. The magistrate will typically have many cases scheduled for the same date and time. The magistrate will first call the names of everyone with a case scheduled to find out who is in court, and will then hear the cases one at a time.

Because the landlord filed the case, the magistrate will hear from the landlord first. The tenant has the right to ask questions of the landlord and any witnesses once they have finished testifying. The magistrate will then allow the tenant to testify, call witnesses and present any other evidence, such as pictures or documents. Both landlords and tenants may hire attorneys to represent them in small claims court if they wish, but they are not required to do so.

After hearing the case, the magistrate will make a decision. The magistrate will usually announce the decision in court, but will sign a written order later. You may receive a copy in the mail, or you can get a copy of the written order from the clerk of court.

What if a party doesn’t go to small claims court?

Because eviction cases are civil, not criminal, no one is arrested for failure to appear in court. If a landlord fails to appear in small claims court, the case will be dismissed. If a tenant fails to appear, the magistrate will hear the case based only on the landlord’s version of the facts. The magistrate can order an eviction in the tenant’s absence, and can order the tenant to pay money in the tenant’s absence only if the tenant was not served by posting the notice on the property.

Can I get a continuance in small claims court?

Magistrates may grant continuances for good cause, but may not give a continuance of more than five days unless the parties agree. You should be prepared to present your case on the first court date.

How much time do I have to move if the magistrate evicts me?

Both parties have 10 days after the magistrate’s decision to appeal the case to District Court. The landlord cannot remove the tenant from the home until the appeal period has ended, whether or not the tenant appeals the case. Once the 10 days have passed, the landlord can return to court and ask the clerk for an order called a “Writ of Possession,” which allows the sheriffs to padlock the home. The sheriff’s office must then remove the tenant within 5 days. Local sheriffs’ departments will often notify tenants in advance of the date they intend to padlock the home.

When the sheriffs come, will they throw my things out on the street?

No. However, the sheriffs will remove the tenants from the home and the landlord will padlock the doors or change the locks. This means that there could be a delay of hours or days before you are able to go back inside to get anything that you have left in the home.

How much time do I have to get my things out after the eviction?

Depending on the value of your belongings left in the home, you have 5 to 7 days after the home is padlocked to arrange with the landlord a time to remove your belongings. Landlords are only required to allow tenants one visit to the home to collect all of the property. If you leave property worth a total of $500 or less in the home, you have 5 days to retrieve it; if it is worth more than $500, you have 7 days. If you have not yet arranged to move your things in this time period, the landlord can dispose of them.

What happens when an eviction case is appealed?

The case is scheduled for a new trial before a District Court judge in the same county. Both the landlord and tenant will have a new opportunity to testify and present evidence and witnesses, and the judge will make a new decision about whether the landlord has proven grounds to evict the tenant.

How can I appeal my eviction case?

Either a landlord or a tenant can appeal an eviction decision from small claims court to District Court by filing a Notice of Appeal with the clerk of court. Many tenants also file a Petition to Appeal as an Indigent and a Bond to Stay Execution (see the next two questions).

eCourts Guide & File is available to help users prepare court documents online to file for Appeal to District Court and for Petition to Proceed as an Indigent.

Do I have to pay to appeal?

In general, in order to appeal, a tenant must timely pay to the clerk of court the appeal costs. Tenants who are unable to pay can ask to be found “indigent,” which means they are not required to advance the court costs. Anyone receiving public assistance through the Supplemental Nutrition Assistance Program (SNAP or food stamps), Temporary Assistance to Needy Families (TANF or welfare) or Supplemental Security Income (SSI) is considered unable to pay. You can find the indigency form here. This should be filed with the Notice of Appeal.

eCourts Guide & File is available to help users prepare court documents online to file for Appeal to District Court and for Petition to Proceed as an Indigent.

Can I stay in the home while my case is on appeal?

A tenant, including an indigent tenant, must take certain actions if they wish to stay in the property pending an appeal. A tenant, who appeals a magistrate’s judgment, may stay enforcement of the judgment pending the appeal by (i) paying undisputed rent in arrears as determined by the magistrate, unless indigent, and (ii) signing and filing an undertaking “Bond to Stay Execution” with the Notice of Appeal agreeing to pay the tenant’s share of contract rent as it becomes due. In actions based upon alleged nonpayment of rent where the magistrate’s judgment is entered more than five business days before the next rent due date, a tenant is also required to pay prorated rent under the terms of the undertaking. A tenant who fails to pay rent during this time can be evicted before a judge hears the appeal.

What are the rules for return of security deposits?

A landlord may keep a tenant’s security deposit to cover unpaid bills such as rent, damage to the property, court costs charged to the tenant in an eviction case, costs due to the tenant’s breach of the lease, or the cost of removing and storing the tenant’s property after eviction. In order to withhold part or all of a security deposit, the landlord is required to send the tenant an initial itemized bill within 30 days and a final bill within 60 days, explaining what the deposit is being used for. The landlord can only keep the amount needed to cover actual costs. If the tenant’s forwarding address is unknown, the landlord is not required to provide an accounting but must hold any remaining money for the tenant for at least six months.

Can I represent myself in my eviction case?

Yes. Many people, including both landlords and tenants, represent themselves in small claims court. Self-representation is less common if the case is appealed to District Court, since this is the last opportunity for a trial in the case. If you choose to represent yourself in either court, you will be held to the same rules of evidence and procedure as a licensed attorney. Court officials, such as judges and clerks of court, cannot give you legal advice about your rights and obligations, possible claims or defenses, or the likely outcome of your case.

Can I get free legal assistance with my landlord/tenant case?

Legal Aid of North Carolina is a statewide nonprofit organization that represents some tenants in their housing cases. You can apply for Legal Aid representation by calling 1-866-219-5262 or applying online.

eCourts Guide & File is available to help users prepare court documents online to file for Summary Ejectment: Complaint in Summary Ejectment, Tenant’s Answer and Counterclaims, Appeal to District Court.

How can I file a complaint against a landlord for discriminating against me?

You can learn more about your rights regarding housing discrimination and file a complaint here.

What is a foreclosure?

A foreclosure is a method of enforcing payment of a debt secured by a mortgage, deed of trust, or lien on real property by selling the real property and applying the proceeds of the sale to satisfy the debt. As a result of the foreclosure, the property owner loses all rights in the property.

What is a power of sale foreclosure?

A power of sale foreclosure is a contractual right under the terms of a deed of trust which gives the trustee the power to sell the real property on behalf of the lender if the borrower defaults. The procedure for power of sale foreclosure is contained in Article 2A in Chapter 45 of the North Carolina General Statutes. A power of sale foreclosure may not proceed unless authorized by a court after a hearing. A clerk of superior court in the county where the real property is located has authority to authorize or deny a power of sale foreclosure. A clerk of superior court may only hear and decide certain factual and legal issues in a power of sale foreclosure proceeding.

What is a foreclosure by civil action?

A foreclosure by civil action differs from a power of sale foreclosure. A foreclosure by civil action is filed in either district or superior court depending on the value of the real property subject to foreclosure. The procedure for a sale in a foreclosure by civil action is contained in Article 29A in Chapter 1 of the North Carolina General Statutes. A judge in a foreclosure by civil action has broader jurisdiction and authority than the clerk does in a power of sale foreclosure. See the Lawsuits Help Topic for more information on civil cases.

What is a tax foreclosure?

Foreclosure of a tax lien is a lawful means of collecting unpaid property taxes by a local government entity. There are two methods to foreclose a tax lien:

1. A tax lien may be foreclosed by civil action pursuant to North Carolina General Statute §105-374.
2. An in rem foreclosure is a method of foreclosing a tax lien pursuant to North Carolina General Statute §105-375.

There is no court hearing in this method of foreclosure prior to entry of a foreclosure judgment.  However, a person having an interest in the real property may appear before the clerk and move for the foreclosure judgment to be set aside on the ground that the tax has been paid or that the tax lien upon which the judgment is based is invalid. However, a person seeking to have the judgment set aside must appear before the clerk on the motion prior to execution on the judgment.

What is a homeowners’ or condominium owners’ association foreclosure?

Under North Carolina law, a homeowners’ association or a condominium owners’ association may file a claim of lien on real property when a homeowner does not pay assessments as required under restrictive covenants (declaration). The procedure for filing and foreclosing a claim of lien is set forth in North Carolina General Statute §47F-3-116 for homeowners’ associations and North Carolina General Statute §47C-3-116 for condominium owners’ associations. The association, acting through the executive board, may foreclosure the claim of lien in a like manner as a mortgage or deed of trust under power of sale as provided under Art. 2 in Chapter 45 of the General Statutes. An association may also choose to foreclose a claim of lien through the foreclosure by civil action process.

What is a promissory note?

A promissory note is a legal document where one party promises to pay a sum of money to another party at a fixed time, on demand, or in regular intervals. A borrower (debtor) signs a promissory note when a lender (creditor) loans money. Real property can be used as collateral to secure payment of the debt.

What is a deed of trust?

A deed of trust is a legal document whereby the owner of real property conveys legal title of the real property to a trustee held to secure a debt (loan) for a third party (beneficiary). The equitable title remains with the borrower or another individual or entity. Most deeds of trust in North Carolina contain “power of sale” language requiring the trustee to sell the property, on the request of the beneficiary, in the event of a default under the terms of a promissory note or deed of trust.

What is a holder?

A holder is a person, entity, estate, trust, partnership, etc. that is (i) in possession of a note that is (ii) payable to bearer, indorsed in blank, or payable to an identifiable person that is the person in possession. See N.C. Gen. Stat. § 25-1-201(b)(21).

What is a “mortgagee” and a “mortgagor”?

Under G.S. § 45-21.1(b)(2), the term mortgagee or trustee includes any person or entity exercising a power of sale pursuant to Art. 2A in G.S. Ch. 45. A mortgagor is a borrower who is obligated to pay the loan.

Who is the trustee or substitute trustee?

The trustee is a neutral third party that holds legal title to real property as security for a debt until the debt is satisfied.  If the borrower defaults under the terms of the note or deed of trust, for example stops making payments, the beneficiary under the deed of trust can ask the trustee to begin the foreclosure process. A beneficiary under a deed of trust may substitute one trustee for another by recording a document substituting the trustee with the county Register of Deeds.

What is a default?

A default is a borrower’s (debtor’s) failure to fulfill an obligation(s) under a promissory note, deed of trust, or homeowner’s or condominium’s association covenants, such as by failing to make required payments. A default is the trigger that allows the beneficiary under a deed of trust or a homeowner’s/condominium owner’s association to authorize a trustee to begin foreclosure proceedings.

Is free legal assistance available for foreclosure cases?

Legal Aid of North Carolina is a statewide nonprofit organization that may be able to assist some homeowners in their foreclosure cases. You can apply for Legal Aid representation by calling 1-866-219-5262 or applying online. See the Find an Attorney Help Topic for additional organizations that represent homeowners in foreclosure and more information about finding an attorney.

Under North Carolina law, can a lender sell a property without going to court?

No. In power of sale and civil action foreclosures, real property cannot be sold without first getting a court order permitting a sale. In many cases, lenders are required to send a pre-foreclosure notice to delinquent borrowers at least 45 days in advance of filing a foreclosure proceeding, informing them of options that may be available to help them stay in their homes. The North Carolina Housing Finance Agency administers the pre-foreclosure filing requirement through the State Home Foreclosure Prevention Project. Request system access or submit a pre-foreclosure filing using this link. Note: This response is not intended to address procedures for federal foreclosure remedies such as under the federal Single and Multi Family Mortgage Foreclosure Acts.

What resources are available to borrowers who fall behind on their mortgages?

• Borrowers who have missed a mortgage payment or expect to miss a mortgage payment because of financial difficulties should contact their mortgage company or servicer. Borrowers may be eligible for programs designed to avoid foreclosure, such as a loan modification, forbearance, or a repayment plan.
• HUD-approved housing counseling agencies may be able to provide assistance or work with a mortgage company to obtain a loan modification. You can view a listing of HUD-approved agencies in North Carolina here.
• The State Home Foreclosure Prevention Project, administered by the North Carolina Housing Finance Agency, is also an available resource. Contact the Agency by visiting their website or their toll-free number at 1-888-442-8188 to be connected to a housing counselor.
• Borrowers and homeowners should be wary of solicitations from companies or out-of-state law firms that offer help to save a property. You can find information on scams involving foreclosure assistance from the North Carolina Department of Justice here.

What happens when a foreclosure case is filed?

A “power of sale” foreclosure is initiated when the trustee or substitute trustee files a “notice of hearing” with the clerk of superior court in the county where the subject real property is located. The matter is filed as a special proceeding. The notice provides the date, time, and location of the hearing, among other information. The notice of hearing must be served on borrowers, record property owners, and anyone else required under the deed of trust. The notice must be served in any manner provided by the Rules of Civil Procedure for services of summons, including service by the sheriff or certified mail, return receipt requested. If a party cannot be personally served, the sheriff can serve it by posting a copy of the notice in a conspicuous place and manner upon the real property.

Once a foreclosure is filed, is there still time to negotiate a solution?

Possibly. Borrowers may be able to negotiate a loan modification or other resolution at any time until the sale is final and keep the property. Borrowers will generally need to begin loan modification or other loss mitigation processes as early as possible to ensure time for processing. See above for resources for borrowers having difficulty paying their mortgages.

Who hears foreclosure cases?

In a special proceeding, the hearing is before the clerk of superior court or an assistant clerk of superior court. If the case is appealed, it will be heard by a judge. If the case is filed as a civil action, it will be heard by a judge.

What must the clerk find in a hearing to enter an order authorizing the foreclosure to proceed?

In a power of sale foreclosure, the lender must prove that it is authorized to foreclose on the real property. In order for the trustee or substitute trustee to obtain an order allowing the sale of real property, the clerk must find the existence of the following:

1. A valid debt in which the party seeking to foreclose is the holder,  
2. Default by the borrower,
3. Right of the holder to foreclose under the deed of trust,      
4. Notice of hearing to those entitled to notice,
5. That the mortgage debt is not a home loan, or if it is a home loan, that pre-foreclosure notice under G.S. 45-102 was provided in all material respects and certain statutory time periods have elapsed, and,
6. That the foreclosure is not barred under G.S. 45-21.12(A), a statute which provides protections in certain circumstances to specified military borrowers.

What evidence can be presented in a foreclosure case?

Evidence may include testimony of the borrowers and other witnesses, as well as written documents. In a special proceeding, the clerk of superior court may only consider evidence related to the six elements listed above, including legal defenses. This means that a borrower may argue, for instance, that the mortgage company lacks the authority to foreclose because the deed of trust does not secure the note or that the borrower is not actually in default. However, a borrower may not present equitable defenses in the special proceeding, such as that the mortgage company committed fraud or breached its contract with the borrower. In a homeowner’s or condominium owner’s association foreclosure, the homeowner may not raise equitable arguments, for instance that the association failed to fulfill its obligations to maintain the property appropriately. Equitable defenses may only be raised by filing a separate civil lawsuit to “enjoin” (stop) the sale before it becomes final. Borrowers considering potential defenses to a foreclosure should consult an attorney licensed in North Carolina.

What if a party doesn’t attend a foreclosure hearing?

Because foreclosure cases are civil, not criminal, no one is arrested for failure to appear in court. If the trustee or substitute fails to appear, the clerk of court may deny the request for foreclosure. If a borrower fails to appear at the hearing, the clerk of superior court may hear the case based on the evidence presented by the trustee or substitute trustee, lender’s attorney, or other witnesses. The clerk of superior court may enter an order allowing a trustee to proceed to sell the real property according to the sale procedures set forth in the North Carolina General Statutes.

Are continuances available in foreclosure hearings?

Continuances, or postponements of the court date, are available under some circumstances. If the debtors occupy the real property as a principal residence, the clerk of superior court must continue a hearing for up to 60 days from the date of the original hearing date if, at the commencement of the hearing, the clerk finds there is good cause to believe that additional time or additional measures have a reasonable likelihood of resolving the delinquency without foreclosure. The clerk may also continue the foreclosure hearing at the request of either party for “good cause.”

May a foreclosure order be appealed?

Yes. Once an order is entered, there are 10 days in which to appeal the clerk’s decision to district or superior court. This requires filing a written notice of appeal. There is not a standard form for the notice of appeal. Borrowers or real property owners considering an appeal should consult an attorney licensed in North Carolina.

Does an appeal stop the foreclosure sale?

In order to prevent a foreclosure sale from moving forward while the case is on appeal, a borrower or property owner must pay a bond to the clerk of superior court. By law, if the appealing party occupies the property as a principal residence, the default bond is 1% of the principal balance due on the note, but the amount of the bond is ultimately within the clerk’s discretion. If the bond is not paid, a judge can still hear the appeal, but the trustee can proceed with a foreclosure sale before a judge decides the appeal.

What happens in an appeal?

If either the lender or the borrower appeals the clerk of superior court’s decision, there will be a new hearing before a district or superior court judge, who will decide whether the trustee or substitute trustee is entitled to proceed with the foreclosure. The judge is limited to hearing the same issues considered by the clerk of superior court, as listed above. A party who wishes to raise equitable arguments must file a separate lawsuit.

When does the foreclosure sale get scheduled if a foreclosure order is entered?

A date for the foreclosure sale is often, but not always, scheduled at the end of the foreclosure hearing before the clerk of superior court, if the clerk enters an order allowing the trustee to proceed with foreclosure. The notice of sale must be served according to statute and posted at the courthouse for at least 20 days before the scheduled sale date and must be advertised in a newspaper. Once scheduled, the foreclosure sale date can later be postponed or canceled by the lender. A lender may choose to postpone or cancel the sale if the borrower is actively working with the lender to save the property.

When does a foreclosure sale become final?

A foreclosure sale can be finalized at the conclusion of the “upset bid period.” Once the foreclosure sale is conducted, there is a 10-day period in which other bidders may place a higher bid, or “upset bid,” for the real property. Each new upset bid starts a new round of bidding, and another 10-day period begins to run from the date of the most recent upset bid. Once the 10-day period passes with no further bids, the foreclosure sale may be finalized. Borrowers may consult an attorney licensed in North Carolina about their legal options during this period.

Once a foreclosure sale is complete, what happens next?

Upon completion of the sale, the trustee or substitute trustee will transfer title or ownership of the real property to the purchaser by executing a trustee’s deed. The deed will be recorded in the county register of deeds office. The trustee or substitute trustee will file an accounting of the sale proceeds with the clerk of superior court. If a property owner does not willingly vacate the property, the new owner may take legal action though the court to obtain possession, such as applying for a court order for possession or a writ of possession. Tenants occupying the real property may have additional rights and should consult with an attorney licensed in North Carolina with any questions about what rights they may have to remain in the property. G.S. 45-21.33A sets forth the effect of foreclosure on a preexisting tenancy.

View charts listing the current court costs for all types of court cases – criminal, civil, estates, and special proceedings, as well as certain miscellaneous costs and fees that the courts must collect. (View prior years' court costs and waiver lists.)

Most (but not all) of the statutes that set court costs and fees are found in the N.C. General Statutes Chapter 7A, Article 28.

How did the court decide the amount of costs for my case?

The courts in North Carolina do not decide the amounts of court costs. North Carolina’s state constitution gives authority over court costs to our legislature, the General Assembly. The courts are required by law to collect the costs enacted by the General Assembly, though in some cases, the law gives court officials limited discretion to waive or reduce those costs or to allow a party to delay their payment.

How does the court spend the costs that it collects?

Just like the General Assembly sets the amount of court costs in North Carolina, it also decides where the money goes. Although several of the statutes about court costs say that the money is “for the support of the General Court of Justice,” most of the money collected does not stay with the courts and is not reserved for the courts’ use.

Out of the total court costs for each type of case – criminal, civil, estates, and special proceedings – the General Assembly allotted $4.00 to stay with the courts to help pay for the courts’ technology. The largest share of court costs goes to the State’s General Fund, to be spent by the General Assembly however they think appropriate. The remainder is distributed to various government agencies at the State and local levels, like to county governments to fund courthouse facilities or to State and local law enforcement agencies to fund some of their operations.

What costs will I have to pay if I am found not guilty?

None. Court costs are assessed against a defendant only if you are convicted of a crime or infraction (which is called a “finding of responsibility” for an infraction, but this FAQ uses “conviction” to cover both types of offense). Note that if you hired an attorney to represent you, you still will be responsible for any payment agreement you made with the attorney, but that is an obligation to the attorney, not to the court. If you were appointed an attorney by the court and are not convicted of any offense, then you will not be required to repay the State for the attorney’s services.

Your cost chart for criminal cases lists a “Total” costs for my case. Why does the clerk say I have to pay an amount much higher than that?

The “Total” on the court costs chart is only a portion of the total monetary obligations that might be imposed in the court’s judgment upon conviction when you are convicted of a crime or infraction. Other costs in that chart also might apply, like an additional fee if you previously failed to appear during the course of the case, daily fees to reimburse the county for any days spent in jail before your case was disposed, and additional fees for conviction of certain kinds of offenses like impaired driving or having improper equipment on a motor vehicle.

In addition to court costs, the court might impose other monetary obligations in its judgment, like a fine as punishment, restitution to any victim(s) of the offense, attorney fees to pay back the State for a court-appointed lawyer, and other costs or fees associated with certain conditions of probation (like a fee for the community service program). If you dispose of your case by “waiver” - which means waiving your right to a trial and pleading guilty online, by mail, or before a clerk or magistrate - the court generally will be required by law to assess a fine from a list created by the State’s chief district court judges. The current lists of waivable offenses and the fines to be imposed.

I didn’t even go to court -- I paid my ticket online. Why do I have to pay “court costs” when I didn’t go to court?

The law that sets the court costs requires the courts to assess and collect those costs for all convictions of criminal/infraction offenses. The costs statute does not make exceptions for cases disposed by “waiver” online or by mail, so the courts have no choice but to assess the costs in those cases.

How can I make a payment?

Whether you are paying monetary obligations previously imposed in a court’s judgment or pleading guilty by “waiver” (as discussed in the previous two questions), your payment options are the same: online, by mail, or in person at the courthouse (or at a magistrate’s office, for in-person waivers).

OnlinePayments online can be made by credit card or debit card at the courts’ Online Services portal. If you were placed on supervised probation, you can make a partial payment of the total due. If you are pleading guilty via waiver or are making a payment for a judgment that imposed unsupervised probation (or no probation at all), then the payment must be for the full amount due; partial payments against those cases are not accepted. 

MasterCard, Visa, American Express, and Discover are accepted online (plus processing fees). The name on the card and the name of the defendant may be different. The secure payment vendor, NIC, Inc., applies a portal administrative fee for all payments, and a payment confirmation email will be sent as a receipt. For online payment problems, contact NIC, Inc., at 1-888-859-6183.

By MailPayment can be made by mail to the clerk of superior court in the county where you were charged. Do not send cash through the mail. Payments by mail should be by certified check, cashier’s check, or money order, only. Personal checks will not be accepted. Make sure the payment is made out to the “Clerk of Superior Court of [X] County,” where “[X]” is the name of the county where you were charged. If mailing a payment in order to plead guilty via waiver, be sure to sign and date the written waiver on your citation and include it with the payment, or your case will remain pending, and you still must appear for your court date.

In PersonPayments can be made at the courthouse during the clerk’s regular business hours. Payment can be made by cash, certified check, cashier’s check, money order, or credit/debit card (plus processing fees). Personal checks will not be accepted. As with payments by mail, make sure any certified/cashier’s check or money order is made out to the “Clerk of Superior Court of [X] County,” where “[X]” is the name of the county in which you are making the payment.

When do I have to pay? Can I pay over time?

Monetary obligations from criminal and infraction cases are due at the time of the conviction, but in some cases, payment might be delayed to a later date or paid over time. If your conviction results in probation, payment usually can be made any time during the period of probation. If your probation is supervised, your probation officer will discuss with you the expected schedule of payments. For persons not placed on probation, the court might allow some additional time to pay, but that is entirely within the judge’s discretion. Note that if all monetary obligations are not paid in full at the time of conviction, the courts are required to assess an additional one-time fee of $20 to cover the State’s costs of processing future payments.

I heard I had 40 days to pay. Is that true?

No. As explained above, monetary obligations from a criminal or infraction judgment are due as soon as the judgment is imposed, though the court might allow you additional time to pay. If the total amount is not paid within 40 days of the conviction (or within 40 days of the date allowed by the court, if a later date), then an additional fee will be added to the total because of the delay. See the next question for more detail.

What happens if I don’t pay the total amount by the time it’s due?

It depends on the type of offense and the courts’ local practices for responding to a failure to pay (also called a “failure to comply,” or “FTC”).

For a motor vehicle (traffic) offense, an FTC likely will lead to suspension of your driver’s license (or your ability to get one, if you don’t have a license). See the Traffic Help Topic for more information about license suspension.

As noted above, if you fail to comply within 40 days of the court’s judgment, an additional “FTC fee” also will be added to your total obligation for most cases. The court also might issue an order for you to appear in court and explain (“show cause”) to the court why you should not be jailed or otherwise penalized for the failure to comply. Some courts will issue an order for your arrest to compel this appearance before the court.

Unpaid monetary obligations from a criminal or infraction judgment also might result in a civil judgment against you. See the Lawsuits Help Topic for more information about the effect of a civil judgment and how it might be collected.

Court costs must be assessed for all of the types of cases filed with the courts, not just criminal cases. This includes:

• Civil cases – what most of us think of when we hear the word “lawsuit”;
• Estates – the legal management and distribution of a person’s property and assets, usually after they have died, but this type of case also applies to some living persons who need someone else to manage their affairs for them, like an adult who needs a legal guardian; and
• Special Proceedings – a special category of cases that the General Assembly has decided aren’t regular “civil” cases. Common special proceedings involve certain family or financial relationships between the parties, like adoptions and incompetency hearings for adults who might need guardians. Other special proceedings decide the disposition or ownership of land (“real property”), like foreclosures, “partitions” (a process to divide a single piece of property between its multiple owners), and some boundary disputes.

The court costs for each of these case types will vary, depending on the exact nature of the case and the court in which it will be heard. But each case type involves the up-front payment of initial filing fees to start the case. Most cases also will require the payment of additional costs during the course of the case, like a fee to have a hearing on a motion or fees to have the Sheriff serve another party with notices (also called serving “process”).

The costs and fees for civil cases, estates, and special proceedings are set out in a separate chart for each case type. The costs for a particular case will depend on the details of that specific case, so if you have questions about the costs that might apply to your situation, you should consult an attorney who can advise you.

When do I have to pay the costs?

The court costs to file a civil case, estate, or special proceeding must be paid in advance, when the case is filed. This usually requires payment of the filing fees (shown in the court cost charts as the General Court of Justice Fee, a facilities fee, and a telecommunications fee), plus fees for the Sheriff to serve other parties with notice that the case has been filed.

Additional costs over the course of the case must be paid at the time you file the paperwork that triggers the fee. For example, the fee to have a hearing on a motion must be paid when you file a notice of that hearing with the court.

What if I can’t afford to pay the costs when they’re due?

In some cases the clerk of superior court or the court can allow you to file your case as an “indigent,” meaning you will not be required to pay the costs in advance. If you are represented by certain legal services agencies, like Legal Aid of North Carolina, you will not be required to advance costs. (Legal Aid can represent persons in only certain types of cases. To contact Legal Aid to find out if they can represent you, see their website.)

If you are not represented by Legal Aid or a similar organization, you can petition the court to file as an indigent on the form AOC-G-106. If you do not fit into one of the categories on that form but still want to ask to file a case as an indigent, the court probably will require that you provide some information about your income and expenses before deciding whether or not to allow it. So if you do not fit into one of the categories listed on that form, contact the clerk’s office in the county where you plan to file your case, to find out what additional information you will need to provide. A directory of contact information for each county can be found here. Many counties will require that you complete this form to submit with your petition, but a few counties have local forms that they use for this purpose.

Note that even if you are allowed to file your case as an indigent, the court still must track the costs that are due, and they might be collected at a later date. For example, if you are approved to file a lawsuit as an indigent, and you win a judgment for money, the court might require that the unpaid costs be collected out of any money you recover from the other party.

In addition to the court costs for criminal/infraction cases, civil cases, estates, and special proceedings, the courts are required to collect fees for other services that the courts provide. For example, if you want photocopies of court records, the clerk must charge a per-page fee for those copies. A chart of these “miscellaneous” fees can be found here.