North Carolina General Statutes 45-21.31. Disposition of proceeds of sale; payment of surplus to clerk
(a) The proceeds of any sale shall be applied by the person making the sale, in the following order, to the payment of –
(1) Costs and expenses of the sale, including the trustee‘s commission, if any, and a reasonable auctioneer’s fee if such expense has been incurred, and reasonable counsel fees for an attorney serving as a trustee if allowed pursuant to subsection (a1) of this section;
Terms Used In North Carolina General Statutes 45-21.31
- Contract: A legal written agreement that becomes binding when signed.
- Deed: The legal instrument used to transfer title in real property from one person to another.
- following: when used by way of reference to any section of a statute, shall be construed to mean the section next preceding or next following that in which such reference is made; unless when some other section is expressly designated in such reference. See North Carolina General Statutes 12-3
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Mortgage: The written agreement pledging property to a creditor as collateral for a loan.
- Mortgagee: The person to whom property is mortgaged and who has loaned the money.
- Obligation: An order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.
- property: shall include all property, both real and personal. See North Carolina General Statutes 12-3
- Trustee: A person or institution holding and administering property in trust.
(2) Taxes due and unpaid on the property sold, as provided by N.C. Gen. Stat. § 105-385, unless the notice of sale provided that the property be sold subject to taxes thereon and the property was so sold;
(3) Special assessments, or any installments thereof, against the property sold, which are due and unpaid, as provided by N.C. Gen. Stat. § 105-385, unless the notice of sale provided that the property be sold subject to special assessments thereon and the property was so sold;
(4) The obligation secured by the mortgage, deed of trust or conditional sale contract.
(a1) The clerk of the superior court of the county where the sale was had may exercise discretion to allow reasonable counsel fees to an attorney serving as a trustee (in addition to the compensation allowed to the attorney as a trustee) where the attorney, on behalf of the trustee, renders professional services as an attorney that are different from the services normally performed by a trustee and of a type which would reasonably justify the retention of legal counsel by a trustee who is not licensed to practice law. Counsel fees are presumed reasonable if in compliance with N.C. Gen. Stat. § 6-21.2(1) and (2). Nothing in this section, however, shall preclude the clerk of superior court from deeming a higher fee reasonable.
(b) Any surplus remaining after the application of the proceeds of the sale as set out in subsection (a) shall be paid to the person or persons entitled thereto, if the person who made the sale knows who is entitled thereto. Otherwise, the surplus shall be paid to the clerk of the superior court of the county where the sale was had –
(1) In all cases when the owner of the property sold is dead and there is no qualified and acting personal representative of his estate, and
(2) In all cases when he is unable to locate the persons entitled thereto, and
(3) In all cases when the mortgagee, trustee or vendor is, for any cause, in doubt as to who is entitled to such surplus money, and
(4) In all cases when adverse claims thereto are asserted.
(c) Such payment to the clerk discharges the mortgagee, trustee or vendor from liability to the extent of the amount so paid.
(d) The clerk shall receive such money from the mortgagee, trustee or vendor and shall execute a receipt therefor.
(e) The clerk is liable on his official bond for the safekeeping of money so received until it is paid to the party or parties entitled thereto, or until it is paid out under the order of a court of competent jurisdiction. (1949, c. 720, s. 1; 1951, c. 252, s. 1; 1967, c. 562, s. 2; 1981, c. 682, s. 10; 2013-104, s. 1.)