NC General Statutes

N.C. Gen. Stat. § 45-21.32 (2026)

Special proceeding to determine ownership of surplus

✓ current as of July 2026

Find cases: SyfertCases citing this section NCLEGncleg.gov (official) JustiaChapter 45 CornellLII Search CasesGoogle Scholar

(a) A special proceeding may be instituted before the clerk of the superior court by any person claiming any money, or part thereof, paid into the clerk's office under G.S. 45-21.31, to determine who is entitled thereto.

(b) All other persons who have filed with the clerk notice of their claim to the money or any part thereof, or who, as far as the petitioner or petitioners know, assert any claim to the money or any part thereof, shall be made defendants in the proceeding.

(c) If any answer is filed raising issues of fact as to the ownership of the money, the proceeding shall be transferred to the civil issue docket of the superior court for trial. When a proceeding is so transferred, the clerk may require any party to the proceeding who asserts a claim to the fund by petition or answer to furnish a bond for costs in the amount of two hundred dollars ($200.00) or otherwise comply with the provisions of G.S. 1-109.

(d) The court may, in its discretion, allow a reasonable attorney's fee for any attorney appearing in behalf of the party or parties who prevail, to be paid out of the funds in controversy, and shall tax all costs against the losing party or parties who asserted a claim to the fund by petition or answer. (1949, c. 720, s. 1.)

§ 45-21.33. Final report of sale of real property.

(a) A person who holds a sale of real property pursuant to a power of sale shall file with the clerk of the superior court of the county where the sale is held a final report and account of his receipts and disbursements within 30 days after the receipt of the proceeds of such sale. Such report shall show whether the property was sold as a whole or in parts and whether all of the property was sold. The report shall also show whether all or only a part of the obligation was satisfied with respect to which the power of sale of property was exercised.

(b) The clerk shall audit the account and record it.

(1) A copy of the notices of sale and resale, if any, which were posted, and

(2) A copy of the notices of sale and resale, if any, which were published in a newspaper, together with an affidavit of publication thereof, if the notices were so published;

(3) Proof as required by the clerk, which may be by affidavit, that notices of hearing, sale and resale were served upon all parties entitled thereto under G.S. 45-21.16, 45-21.17, 45-21.17A, and 45-21.30. In the absence of an affidavit to the contrary filed with the clerk, an affidavit by the person holding the sale that the notice of sale was posted in the area designated by the clerk of superior court for posting public notices in the county or counties in which the property is situated 20 days prior to the sale shall be proof of compliance with the requirements of G.S. 45-21.17(1)a.

(d) The clerk's fee for auditing and recording the final account is a part of the expenses of the sale, and the person holding the sale shall pay the clerk's fee as part of such expenses. (1949, c. 720, s. 1; 1975, c. 492, s. 11; 1983, c. 799; 1993, c. 305, s. 21; 1995, c. 509, s. 26.)

§ 45-21.33A. Repealed by Session Laws 2019-53, s. 2, effective October 1, 2019, and applicable to petitions filed on or after that date.

Article 2B.

Injunctions; Deficiency Judgments.

Notes of Decisions

Cited in 11 cases (1 in the last 5 years), 1954–2026 · leading case: In re Foreclosure of Deed of Trust from Webber, 557 S.E.2d 645 (N.C. Ct. App. 2001).

Sort: Relevance Newest Treatment

In re Foreclosure of Deed of Trust from Webber, 557 S.E.2d 645 (N.C. Ct. App. 2001). · cites it 2× “See N.C. Gen. Stat. § 45-21.32 (1999) (any person who claims that they are entitled to some portion of the sur *162 plus may institute a special proceeding before the clerk of the superior court and, if any answer is filed raising issues of fact as to the ownership of the…”

Union Grove Mill. & Mfg. Co. v. Faw, 404 S.E.2d 508 (N.C. Ct. App. 1991). · cites it 2× “Because issues of fact were raised by the responsive pleadings, the proceeding was transferred to the civil issue docket pursuant to the provisions of N.C.Gen.Stat. § 45-21.32(c) (1984). The record reveals the following additional facts.”

In Re Foreclosure of Deed of Trust Recorded in Book 911, at Page 512, 279 S.E.2d 566 (N.C. 1981). “Conversely, the judgment liens held by Northwestern Factors and Conover Foam properly attached to the entirety property on 13 May 1976 and 6 July 1976 respectively.”

Forest Ridge Townhomes Corp. of Greensboro v. Heag Pain Mgmt. Ctr. P.A. (N.C. Ct. App. 2026). · cites it 32× “” N.C.G.S. § 45-21.32. Here, the parties do not contest that Petitioner validly filed its claim of lien on 20 November 2017 for $1,403.”

Journeys Int'l, Inc. v. Corbett, 280 S.E.2d 5 (N.C. Ct. App. 1981). · cites it 2× “Our Supreme Court held that a special proceeding pursuant to the provisions of G.S. 45-21.32 was a proper method to determine the ownership of the surplus funds.”

Childers v. Powell, 92 S.E.2d 65 (N.C. 1956). “If such be the case, G.S. 45-21.32 would seem to prescribe the appropriate remedy for the determination of the respective rights of plaintiff and intervenors in said funds.”

In Re Foreclosure of Deed of Trust From Gardner, 202 S.E.2d 318 (N.C. Ct. App. 1974). “G.S. 45-21.32 (c). Thereafter the clerk had no jurisdiction to adjudicate ownership of the funds which he held for safekeeping under G.”

Lenoir Cnty. v. Outlaw, 84 S.E.2d 330 (N.C. 1954). · cites it 2× “But, when a proceeding is instituted pursuant to the provisions of G.S. 45-21.32, to determine who is entitled to such funds, it is the clerk and not the administrator who determines the priority of payments.”

Union Grove Milling & Mfg. Co. v. Faw, 404 S.E.2d 508 (N.C. Ct. App. 1991). · cites it 2× “Because issues of fact were raised by the responsive pleadings, the proceeding was transferred to the civil issue docket pursuant to the provisions of N.C. Gen. Stat. § 45-21.32 (c) (1984). The record reveals the following additional facts.”

RDC, Inc. v. Brookleigh Builders, Inc. Ex Rel. Burns, 305 S.E.2d 722 (N.C. 1983). “G.S. 45-21.32 to determine the ownership of surplus funds from a foreclosure sale.”

Louis Michael Goldberg (Bankr. E.D.N.C. 2020). · cites it 6× “” Further, N.C. Gen. Stat. § 45-21.32 (c) allows for the transfer of such a special proceeding to the North Carolina Superior Court for trial if issues exceed the clerk of court’s limited jurisdiction.”

— N.C. Gen. Stat. § 45-21.32(a) — 2 cases

Forest Ridge Townhomes Corp. of Greensboro v. Heag Pain Mgmt. Ctr. P.A. (N.C. Ct. App. 2026). “” N.C.G.S. § 45-21.32. Here, the parties do not contest that Petitioner validly filed its claim of lien on 20 November 2017 for $1,403.”

Louis Michael Goldberg (Bankr. E.D.N.C. 2020). “” Further, N.C. Gen. Stat. § 45-21.32 (c) allows for the transfer of such a special proceeding to the North Carolina Superior Court for trial if issues exceed the clerk of court’s limited jurisdiction.”

— N.C. Gen. Stat. § 45-21.32(c) — 2 cases

Union Grove Mill. & Mfg. Co. v. Faw, 404 S.E.2d 508 (N.C. Ct. App. 1991). “Because issues of fact were raised by the responsive pleadings, the proceeding was transferred to the civil issue docket pursuant to the provisions of N.C.Gen.Stat. § 45-21.32(c) (1984). The record reveals the following additional facts.”

Journeys Int'l, Inc. v. Corbett, 280 S.E.2d 5 (N.C. Ct. App. 1981). “Our Supreme Court held that a special proceeding pursuant to the provisions of G.S. 45-21.32 was a proper method to determine the ownership of the surplus funds.”

— N.C. Gen. Stat. § 45-21.32(d) — 1 case

Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.