- Who sends it
- The trustee or substitute trustee, served by the sheriff, certified or registered mail, or posting on the home
- What it starts
- A special proceeding before the clerk of superior court, with a hearing at least 10 days after service
- Do this first
- Write down the hearing date and call Legal Aid of North Carolina at 1-866-219-5262
What this notice is in North Carolina
North Carolina does not use a separate notice of default. Under N.C.G.S. 45-21.16, the trustee files a notice of hearing with the clerk of superior court in the county where the home is, and the case is filed as a special proceeding. The NC Judicial Branch says real property cannot be sold in a power of sale foreclosure without first getting a court order permitting a sale.
The notice must describe the deed of trust, name the current holder, state the default and whether the debt was accelerated, and give the name, address and phone number of the trustee. It must also say that the trustee is a neutral party who may not advocate for the lender or for you, that you can contest the evidence at the hearing, and that free legal services may be available from Legal Aid of North Carolina.
How to count the days
- The notice must be served at least 10 days before the hearing date. If it is served by posting on the home, the posting must be at least 20 days before the hearing.
- If anyone entitled to notice is not served in time, the clerk must continue the hearing at least 10 days.
- Within 30 days of the date of the notice, you must have been mailed a detailed statement of the principal, interest, fees and costs the holder claims, with a daily interest figure. The notice must confirm this under N.C.G.S. 45-21.16(c)(5a).
- The hearing can be held later than the date on the notice. You must be told of any change, so keep the trustee informed of your address in writing.
What the clerk must find
Before allowing the sale, the clerk must find a valid debt held by the party foreclosing, a default, a right to foreclose under the deed of trust, proper notice, that the 45-day pre-foreclosure notice was given if this is a home loan, and that military service rules do not bar the sale. The NC courts say you can raise legal defenses on these points, such as that you are not in default. Equitable defenses, such as fraud by the lender, cannot be raised before the clerk and need a separate lawsuit before a superior court judge under N.C.G.S. 45-21.34.
Asking for more time at the hearing
Under N.C.G.S. 45-21.16C, at the start of the hearing the clerk must ask whether you live in the home as your principal residence and what the servicer did to resolve the default, unless the servicer filed an affidavit describing those efforts. If there is good cause to believe more time could resolve the delinquency without foreclosure, the clerk must continue the hearing to a date not more than 60 days after the original hearing date. The clerk can also continue a hearing for other good cause. North Carolina has no statewide foreclosure mediation program, so this is your main chance to ask for time in court.
What to do this week
- Call Legal Aid of North Carolina at 1-866-219-5262 or apply online, and call the State Home Foreclosure Prevention Project at 1-888-442-8188.
- Gather proof of what you have done to resolve the default, such as a pending application, letters from your servicer, or a plan to pay. Bring it to the hearing.
- You do not have to attend. The notice must tell you that skipping the hearing does not affect your right to pay the debt and stop the sale. But if you do not appear, the clerk can rule on the lender's evidence alone.
- Check the amounts in the written statement against your records.
- Read how long a North Carolina foreclosure takes and our national notice of default page.
The rest of the North Carolina process
See how foreclosure works in North Carolina, the timeline, ways to stop it and free help in North Carolina, or read the national guide to this letter.
Common questions
How much notice do I get before a North Carolina foreclosure hearing?
At least 10 days after service, or at least 20 days if the notice is posted on the home, under N.C.G.S. 45-21.16(a). If you were not served in time, the clerk must continue the hearing at least 10 days.
Can the clerk postpone my North Carolina foreclosure hearing?
Yes. If you live in the home and there is good cause to believe more time could resolve the default, the clerk must continue the hearing up to 60 days (N.C.G.S. 45-21.16C). The clerk can also continue it for other good cause.
Is the trustee on my side or the lender's side in North Carolina?
Neither. The notice of hearing must state that the trustee is neutral and may not advocate for the lender or for you. Get your own advice from legal aid or a licensed attorney.
Can an HOA send a North Carolina notice of hearing?
Yes. The NC courts say a homeowners or condo association can foreclose its claim of lien for unpaid assessments under the same power of sale procedure. Treat it the same way.
Other North Carolina letters
- 45-day pre-foreclosure noticeFor a home loan on your primary residence, North Carolina requires your servicer to mail this notice at least 45 days before it files a foreclosure notice of hearing. It lists what you owe to catch up and tells you where to get free help. It is a warning, not a court case.
- Clerk's order allowing the foreclosure saleAfter the hearing, the clerk of superior court can sign an order authorizing the trustee to sell your home. You have 10 days to appeal it to a judge. An appeal stops the sale only if you post a bond, usually 1 percent of the principal balance for an owner who lives in the home.
- Notice of sale (trustee's foreclosure sale)The notice of sale tells you the date, hour and place the trustee will auction your home. It must be posted at the courthouse and mailed to you at least 20 days before the sale, and published in a newspaper for 2 weeks. The sale is held between 10 a.m. and 4 p.m. and is not final on sale day.
- Notice of Upset BidAfter a North Carolina foreclosure auction, anyone can raise the bid within 10 days. Each higher bid is filed with the clerk on a Notice of Upset Bid, and the trustee must mail you notice. Each one starts a new 10-day period, and until the last period ends you can still end the foreclosure by paying the full debt and expenses.
- Order for possessionIf you are still in the home after the sale is final and paid for, the buyer can ask the clerk of superior court for an order for possession after giving you 10 days' notice. The sheriff then has no more than 5 days to carry it out and must tell you the approximate time first.