GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2021
SESSION LAW 2022-60
SENATE BILL 769
AN ACT to align certain provisions for the postponement of judicial sales and execution sales with the corresponding provisions for postponement of sales authorized UNDER power of sale and to make technical, conforming, and clarifying changes, as recommended by the general statutes commission.
The General Assembly of North Carolina enacts:
SECTION 1. G.S. 1‑339.20 reads as rewritten:
"§ 1‑339.20. Public sale; postponement of sale.
(a) A person authorized to
hold a public sale by auction may postpone the sale to a day certain not later
than six days, exclusive of Sunday, 90 days after the original
date for the sale, and a person authorized to hold a public sale of timber by
sealed bid may postpone the time for submitting and opening bids to a date,
time, and place certain not later than six days, exclusive of Sunday, 90
days after the original date for the opening of bids: bids if any
of the following occurs:
(1) When there There
are no bidders, or bidders.
(2) When, in his In
the person's judgment, the number of prospective bidders at the sale is
substantially decreased by inclement weather or by any casualty, or casualty.
(3) When there There
are so many other sales advertised to be held at the same time and place as
to make it inexpedient and impracticable, in his the person's judgment,
to hold the sale on that day, or day.
(4) When he The
person is unable to hold the sale because of illness or for other good reason,
or reason.
(5) When other Other
good cause exists.
The person authorized to hold the sale may postpone the sale more than once whenever any of these conditions are met, so long as the sale is held not later than 90 days after the original date for the sale, as computed pursuant to G.S. 1A‑1, Rule 6.
(b) Upon each postponement
of public sale the person authorized to hold the sale shall personally, or
through his the person's agent or attorneyattorney, do
all of the following:
(1) At the time and place
advertised for the sale or for the opening of sealed bids, publicly announce
the postponement thereof;postponement.
(2) On the same day, attach
to or enter on the original notice of sale or a copy thereof posted, sale,
as provided in G.S. 1‑339.17 in the case of real property or
G.S. 1‑339.18 in the case of personal property, a notice of the postponement;
andpostponement.
(2a) Give written or oral notice of postponement to each party previously served pursuant to G.S. 1A‑1, Rule 4(j). Written notice of postponement shall be served in any manner provided in G.S. 1A‑1, Rule 5(b).
(3) In the case of a public
sale of timber by sealed bid, give notice of postponement to each person who
that submitted a bid.
(c) The notice of
postponement shall:shall be signed by the person authorized to hold
the sale, or by the person's agent or attorney, and shall state the following:
(1) State that That
the sale is postponed,postponed.
(2) In the case of a sale by
public auction, state the hour and date to which the sale is postponed,postponed.
(2a) In the case of a sale of
timber by sealed bid, state the date, time, and place to which the
opening of bids is postponed,postponed.
(3) State the The reason
for the postponement, andpostponement.
(4) Be signed by the person authorized to hold the
sale, or by his agent or attorney.
(d) If a public sale is not
held at the time fixed therefor for the sale and is not postponed
as provided by this section, or if a postponed sale is not held at the time
fixed therefor, the person authorized to make the sale shall report the these
facts with respect thereto to the judge or clerk of court having
jurisdiction, who shall thereupon make an order for the time
and place of the public sale of the property to be held at such time and
place and upon such notice to be given in such and the manner and for
such length of time as he deems advisable.for the notice of the
sale."
SECTION 2.(a) G.S. 1‑310 reads as rewritten:
"§ 1‑310. When dated and returnable.
"(a) Executions shall issue in accordance
with G.S. 1A‑1, Rule 62. In no case shall an execution against
property issue until 10 days after entry of judgment. Executions shall be
dated as of the day on which they were issued, and
shall be issued and are returnable to the court from which they were
issued not more than 90 days from said date, and no executions against
property shall issue until 10 days after entry of judgment.that date. If
an execution sale is postponed pursuant to G.S. 1‑339.58, the 90‑day
period to return the execution to the court is extended by the number of days
the sale is postponed.
(b) The sheriff shall separately notate on the return of execution for a judgment requiring the payment of money (i) any amount collected without an execution sale and the date of collection and, if multiple payments to the sheriff are collected on different dates pursuant to a single writ of execution, the individual dates of collection and the amount collected on each date and (ii) the date of levy and description of property levied and sold through an execution sale pursuant to Article 29B of this Chapter."
SECTION 2.(b) G.S. 1‑339.58 reads as rewritten:
"§ 1‑339.58. Postponement of sale.
(a) The sheriff may postpone
the sale to a day certain not later than six days, exclusive of Sunday, 90
days after the original date for the sale:sale if any of the
following occurs:
(1) When there There
are no bidders, bidders.
(2) When, in In the
sheriff's judgment, the number of prospective bidders at the sale is
substantially decreased by inclement weather or by any casualty, casualty.
(3) When there There
are so many other sales advertised to be held at the same time and place as
to make it inexpedient and impracticable, in the sheriff's judgment, to hold
the sale on that day, day.
(4) When the The sheriff
is unable to hold the sale because of illness or for other good reason, or reason.
(5) When other Other
good cause exists.
The sheriff may postpone the sale more than once whenever any of these conditions are met, so long as the sale is held not later than 90 days after the original date for the sale, as computed pursuant to G.S. 1A‑1, Rule 6.
(b) Upon each postponement
of a the sale, the sheriff shall:shall do all of the
following:
(1) At the time and place
advertised for the sale, publicly announce the postponement of the sale; andsale.
(2) On the same day, attach
to or enter on the original notice of sale or a copy of the notice, sale,
posted as provided by G.S. 1‑339.52 in the case of real property
or G.S. 1‑339.53 in the case of personal property, a notice of the
postponement.
(3) Give written or oral notice of postponement to the judgment debtor. Written notice of postponement shall be served in any manner provided in G.S. 1A‑1, Rule 5(b).
(c) The posted notice of
postponement shall:shall be signed by the sheriff and shall state the
following:
(1) State that That
the sale is postponed,postponed.
(2) State the The hour
and date to which the sale is postponed,postponed.
(3) State the The reason
for the postponement, andpostponement.
(4) Be signed by the sheriff.
(d) If a sale is not held at
the time fixed for the sale and is not postponed as provided by this section, or
if a postponed sale is not held at the time fixed for the sale, the sheriff
shall report the these facts with respect thereto to the
clerk of the superior court, who shall thereupon make an order for the
time and place of the sale of the property to be held at such time
and place and upon such notice to be given in and the manner and for
the length of time as the clerk of the superior court deems advisable, but
nothing for the notice of the sale. Nothing in this section relieves
the sheriff of liability for the nonperformance of the sheriff's official
duty."
SECTION 3. G.S. 45‑21.21 reads as rewritten:
"§ 45‑21.21. Postponement of sale; notice of cancellation.
(a) Any person exercising a
power of sale may postpone the sale to a day certain not later than 90 days,
exclusive of Sunday, days after the original date for the sale ‑sale
if any of the following occurs:
(1) When there There
are no bidders, orbidders.
(2) When, in his In
the person's judgment, the number of prospective bidders at the sale is
substantially decreased by inclement weather or by any casualty, orcasualty.
(3) When there There
are so many other sales advertised to be held at the same time and place as
to make it inexpedient and impracticable, in his the person's judgment,
to hold the sale on that day, orday.
(4) When he The
person is unable to hold the sale because of illness or for other good reason,
orreason.
(5) When other Other
good cause exists.
The person exercising a power of sale
may postpone the sale more than once whenever any of the above these conditions
are met, so long as the sale is held not later than 90 days after the original
date for the sale. The 90‑day time period is computed in the manner
provided by G.S. 1A‑1, Rule 6.
(b) Upon postponement of a
sale, the person exercising the power of sale shall personally, or through his
the person's agent or attorney ‑attorney, do all of
the following:
(1) At the time and place
advertised for the sale, publicly announce the postponement thereof;postponement.
(2) On the same day, attach
to or enter on the original notice of sale or a copy thereof, sale,
posted at the courthouse door, as provided by G.S. 45‑21.17,
G.S. 45‑21.17(1)a., a notice of the postponement; andpostponement.
(3) Give written or oral notice of postponement to each party entitled to notice of sale under G.S. 45‑21.17.
(c) The posted notice of
postponement shall ‑shall be signed by the person authorized to
hold the sale, or by the person's agent or attorney, and shall state the
following:
(1) State that That
the sale is postponed,postponed.
(2) State the The hour
and date to which the sale is postponed,postponed.
(3) State the The reason
for the postponement, andpostponement.
(4) Be signed by the person authorized to hold the
sale, or by his agent or attorney.
(e) A sale may be postponed more than once provided the
final postponed sale date is not later than 90 days, exclusive of Sunday and
legal holidays when the courthouse is closed for transactions, after the
original date for the sale.
(f) Repealed by Session Laws 2019‑243, s. 26(a), effective November 6, 2019.
(g) If it is determined that the sale cannot
be held in accordance with this section or is
postponed pursuant to this section, then the person exercising the power of
sale shall, immediately upon determining that the sale will not occur and prior
to the scheduled time of the sale, deliver a written notice to the Clerk of
Superior Court clerk of superior court that is to include all of the
following:
(1) The case number assigned
by the Clerk.clerk.
(2) The mortgagor(s) and
record owner(s) name(s).name of each mortgagor and record owner.
(3) The United States Postal Service address of the property or, if no address has been assigned, a brief description of the location of the property.
(4) The originally scheduled date and time for the sale.
(5) A statement that the foreclosure sale has been withdrawn, rescheduled for a specific date and time, or postponed with no date yet set, as appropriate.
(h) If the notice required
by subsection (g) of this section is not received by the Clerk clerk prior
to the scheduled time of the sale, then the person exercising the power of sale
shall personally, or through his or her the person's agent or
attorney, do all of the following:
(1) At the time and place advertised
for the sale, publicly announce the cancellation thereof;cancellation.
(2) On the same day, attach
to or enter on the original notice of sale or a copy thereof, sale,
posted at the courthouse door, as provided by G.S. 45‑21.17,
G.S. 45‑21.17(1)a., a notice of the cancellation;cancellation.
(3) Give written or oral
notice of cancellation to each party entitled to notice of sale under G.S. 45‑21.17;
andG.S. 45‑21.17.
(4) Hand‑deliver the
written notice required under subdivision (2) of this subsection to the Clerk's
clerk's office.
(i) So that the notice
required by subsection (g) of this section may be delivered in the time frame required
therein, required, the Clerk's clerk's office shall,
upon request, provide to the person exercising the power of sale an e‑mail
email address and/or or fax telephone number number,
or both, to use for delivery of said notices.
(j) Should the Clerk's clerk's
office be unexpectedly closed on the day of the sale, sale or at the
time designated for the sale to take place pursuant to G.S. 45‑21.23,
the requirements of this subsection shall be section related to
notice to or filings with the clerk are delayed until the next day the Clerk's
clerk's office is open for transactions.
(k) All notices of a
scheduled foreclosure sale, withdrawal of a scheduled sale, or postponement of
a scheduled sale shall, on the day of receipt by the Clerk, clerk, be
posted by the person exercising the power of sale in the location at the county
courthouse normally used for the posting of public notices. If a scheduled sale
has been withdrawn, that the notice shall remain in that the
location for no less than 30 days. If the sale has been postponed, that the
notice shall remain in that the location until it is replaced
by a notice of a rescheduled sale or of a withdrawn sale.
(l) The delivery of
notices required by this section in no way removes any responsibility of any
party to file documents with the Clerk clerk as required
elsewhere by law.
(m) A clerk of superior court may report habitual
noncompliance with this subsection to the Administrative Office of the Courts."
SECTION 4. This act becomes effective October 1, 2022, and applies to sales noticed on or after that date.
In the General Assembly read three times and ratified this the 1st day of July, 2022.
s/ Phil Berger
President Pro Tempore of the Senate
s/ Tim Moore
Speaker of the House of Representatives
s/ Roy Cooper
Governor
Approved 2:07 p.m. this 8th day of July, 2022