- Who sends it
- The trustee mails it to the record owner after the clerk receives an upset bid
- What it starts
- A new 10-day period for more upset bids; the sale is final when one ends with no new bid
- Do this first
- Find the last day for the next upset bid on the notice and call the trustee for a full payoff
What this notice is in North Carolina
An upset bid is a higher bid that beats the reported sale price or the last upset bid by at least 5 percent, and by at least $750. The bidder files it with the clerk of superior court, with a deposit of at least 5 percent of the new bid and never less than $750, on the court form Notice of Upset Bid (AOC-SP-403). Under N.C.G.S. 45-21.27(e1), the clerk notifies the trustee, who must mail written notice of the upset bid by first-class mail to the last prior bidder and the current record owners.
The form shows the new bid amount, the last day for the next upset bid, and the minimum amount of the next upset bid.
How to count the 10 days
- The first 10 days run from the filing of the trustee's report of sale with the clerk. Each later 10 days run from the filing of the last Notice of Upset Bid.
- A bid is on time if the deposit is filed by the close of normal business hours on the 10th day. If the 10th day is a Sunday, a legal holiday when the courthouse is closed, or a day the clerk's office is not open, the deadline moves to the next day the office is open.
- There can be any number of upset bids. When a period ends with no new bid, the rights of the parties become fixed, and no court confirmation is needed (N.C.G.S. 45-21.29A).
What it means for you
- Your home has not been finally sold yet.
- Under N.C.G.S. 45-21.20, the power of sale ends if, before the time for upset bids runs out, you pay or tender the full debt plus the sale expenses, including the trustee's compensation. Catching up only the missed payments is not enough under this statute.
- A higher price can matter to you. It may lower any shortfall or create surplus money after the sale costs, taxes and loan are paid. See North Carolina foreclosure surplus funds.
- A superior court judge can still be asked to stop the sale before the rights become fixed (N.C.G.S. 45-21.34), and North Carolina law recognizes a bankruptcy stay during this period.
What to do this week
- Write down the last day for the next upset bid shown on the notice.
- If you can raise the full payoff, ask the trustee for the exact figure in writing and how it must be paid.
- Call Legal Aid of North Carolina at 1-866-219-5262 right away about any other options.
- Keep the trustee informed of your mailing address so you get any surplus notice.
- Read after a North Carolina foreclosure sale.
Scam warnings
After an auction, investors may offer to buy your rights or claim your surplus for a fee. North Carolina limits fee agreements with people who find property owed to you, and you can claim surplus held by the clerk yourself through a special proceeding. Do not sign anything without talking to legal aid.
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.
Common questions
How long does the upset bid period last in North Carolina?
10 days after the report of sale is filed, and a new 10 days after each upset bid. The deposit must be filed by the close of business on the 10th day, or the next day the clerk's office is open (N.C.G.S. 45-21.27).
Can I stop a North Carolina foreclosure during the upset bid period?
Yes, by paying or tendering the full debt plus the sale expenses and trustee's fee before the last upset bid period ends (N.C.G.S. 45-21.20). After that, there is no right to buy the home back.
How much must an upset bid be in North Carolina?
At least 5 percent more than the last bid, with a minimum increase of $750, plus a deposit of at least 5 percent of the new bid and never less than $750.
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.
- Notice of hearing (power of sale foreclosure)In North Carolina, a power of sale foreclosure starts when the trustee files a notice of hearing with the clerk of superior court. It must be served on you at least 10 days before the hearing, or posted on the home at least 20 days before. At the hearing, the clerk decides whether the trustee may sell.
- 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.
- 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.
Sources
- N.C.G.S. 45-21.27, Upset bid on real property; compliance bonds
- N.C.G.S. 45-21.29A, No necessity for confirmation of sale
- N.C.G.S. 45-21.20, Satisfaction of debt before completion of sale
- NC Administrative Office of the Courts: Notice of Upset Bid (AOC-SP-403, Rev. 11/12)
- North Carolina Judicial Branch: Foreclosures help topic