§ 105-375. In rem method of foreclosure. - North Carolina Statutes

§ 105‑375.  In remmethod of foreclosure.

(a)        Intent of Section.– It is hereby declared to be the intention of this section that proceedingsbrought under it shall be strictly in rem. It is further declared to be theintention of this section to provide, as an alternative to G.S. 105‑374,a simple and inexpensive method of enforcing payment of taxes necessarilylevied, to the knowledge of all persons, for the requirements of localgovernments in this State; and to recognize, in authorizing this proceeding,that all persons owning interests in real property know or should know that thetax lien on their real property may be foreclosed and the property sold forfailure to pay taxes.

(b)        DocketingCertificate of Taxes as Judgment. – In lieu of following the procedure setforth in G.S. 105‑374, the governing body of any taxing unit may directthe tax collector to file with the clerk of superior court, no earlier than 30days after the tax liens were advertised, a certificate showing the following:the name of the taxpayer as defined in G.S. 105‑273(17), for each parcelon which the taxing unit has a lien for unpaid taxes, together with the amountof taxes, penalties, interest, and costs that are a lien thereon; the year oryears for which the taxes are due; and a description of the property sufficientto permit its identification by parol testimony. The fees for docketing andindexing the certificate shall be payable to the clerk of superior court at thetime the taxes are collected or the property is sold.

(c)        Notice to Taxpayerand Others. –

(1)        Notice required. – Thetax collector filing the certificate provided for in subsection (b) of thissection, shall, at least 30 days prior to docketing the judgment, send noticeof the tax lien foreclosure to the taxpayer, as defined in G.S. 105‑273(17),at the taxpayer's last known address, and to all lienholders of record who havea lien against the taxpayer (including any liens referred to in the conveyanceof the property to the taxpayer).

(2)        Contents of notice.– All notice required by this subsection shall state that a judgment will bedocketed and the proposed date of the docketing, that execution will be issuedas provided by law, a brief description of the real property affected, and thatthe lien may be satisfied prior to judgment being entered.

(3)        Service of notice. –The notice required by this subsection shall be sent to the taxpayer byregistered or certified mail, return receipt requested.

(4)        Additional effortsmay be required. – If within 10 days following the mailing of the notice, areturn receipt has not been received by the tax collector indicating receipt ofthe notice, then the tax collector shall do both of the following:

a.         Make reasonableefforts to locate and notify the taxpayer and all lienholders of record priorto the docketing of the judgment and the issuance of the execution. Reasonableefforts may include posting the notice in a conspicuous place on the property,or, if the property has an address to which mail may be delivered, mailing the noticeby first‑class mail to the attention of the occupant.

b.         Have a noticepublished in a newspaper of general circulation in the county once a week fortwo consecutive weeks directed to, and naming, all unnotified lienholders andthe taxpayer that a judgment will be docketed against the taxpayer.

(5)        Costs of noticeadded to lien. – All costs of mailing and publication, plus a charge of fiftydollars ($50.00) to defray administrative costs, shall be added to the amountof taxes that are a lien on the real property and shall be paid by the taxpayerto the taxing unit at the time the taxes are collected or the property is sold.

(d)        Effect of DocketingCertificate of Taxes Due. – Immediately upon the docketing and indexing of acertificate as provided in subsection (b), above, the taxes, penalties,interest, and costs shall constitute a valid judgment against the real propertydescribed therein, with the priority provided for tax liens in G.S. 105‑356.The judgment, except as expressly provided in this section, shall have the sameforce and effect as a duly rendered judgment of the superior court directingsale of the property for the satisfaction of the tax lien, and it shall bearinterest at an annual rate of eight percent (8%).

(e)        SpecialAssessments. – Street, sidewalk, and other special assessments may be includedin any judgment for taxes taken under this section, or the special assessmentsmay be included in a separate judgment docketed under this section. The taxcollector may use such a judgment as a method of foreclosing the lien ofspecial assessments. When used to foreclose the lien of special assessments,the procedure may be instituted at any time after the assessment or installmentfalls due and remains unpaid; the waiting period required by subsection (b) ofthis section does not apply to the foreclosure of special assessments.

(f)         Motion to SetAside. – At any time prior to the issuance of execution, any person having aninterest in the real property to be foreclosed may appear before the clerk ofsuperior court and move to set aside the judgment on the ground that the taxhas been paid or that the tax lien on which the judgment is based is invalid.

(g)        Cancellation uponPayment. – Upon payment in full of any judgment docketed under this section, togetherwith interest thereon and costs accrued to the date of payment, the taxcollector receiving payment shall certify the fact thereof to the clerk ofsuperior court and cancel the judgment.

(h)        Relationshipbetween G.S. 105‑374 and This Section. – If, before the issuance ofexecution on the judgment under subsection (i), below, the taxing unit is madea defendant in a foreclosure action brought against the property under G.S. 105‑374,it shall file an answer in that proceeding and thereafter all proceedings shallbe governed by order of the court in accordance with that section.

(i)         Issuance ofExecution. – At any time after three months and before two years from theindexing of the judgment as provided in subsection (b), above, execution shallbe issued at the request of the tax collector in the same manner as executionsare issued upon other judgments of the superior court, and the real propertyshall be sold by the sheriff in the same manner as other real property is soldunder execution with the following exceptions:

(1)        No debtor'sexemption shall be allowed.

(2)        In lieu of personalservice of notice on the taxpayer, the sheriff shall send notice by registeredor certified mail, return receipt requested, to the taxpayer at the taxpayer'slast known address at least 30 days prior to the day fixed for the sale. Ifwithin 10 days following the mailing of the notice, a return receipt has notbeen received by the sheriff indicating receipt of the notice, then the sheriffshall make additional efforts to locate and notify the taxpayer and alllienholders of record of the sale under execution in accordance withsubdivision (4) of subsection (c) of this section.

(3)        The sheriff shalladd to the amount of the judgment as costs of the sale any postage expenses incurredby the tax collector and the sheriff in foreclosing under this section.

(4)        In any advertisementor posted notice of sale under execution, the sheriff may (and at the requestof the governing body shall) combine the advertisements or notices for propertiesto be sold under executions against the properties of different taxpayers infavor of the same taxing unit or group of units; however, the property includedin each judgment shall be separately described and the name of the taxpayerspecified in connection with each.

The purchaser at the executionsale shall acquire title to the property in fee simple free and clear of allclaims, rights, interests, and liens except the liens of other taxes or specialassessments not paid from the purchase price and not included in the judgment.

(j)         Attorney's Fee. – Thegoverning body of the taxing unit may make whatever arrangement it deemssatisfactory for compensating an attorney rendering assistance or advice inforeclosure proceedings brought under this section, but the attorney's feeshall not be added to the judgment as part of the costs of the action.

(k)        Consolidation ofLiens. – By agreement between the governing bodies, two or more taxing unitsmay consolidate their tax liens for the purpose of docketing a judgment, or mayhave one execution issued for separate judgments, against the same property. Inlike manner, one execution may issue for separate judgments in favor of one ormore taxing units against the same property for different years' taxes.

(l)         Purchase andResale by Taxing Unit. – The rights of a taxing unit to purchase real propertyat a foreclosure sale and resell it are governed by G.S. 105‑376.

(m)       Procedure if SectionDeclared Unconstitutional. – If any provisions of this section are declaredinvalid or unconstitutional by the Supreme Court of North Carolina, a UnitedStates district court of three judges, the United States Circuit Court ofAppeals, or the United States Supreme Court, all taxing units that haveproceeded under this section shall have five years from the date of the filingof the opinion (or, in the case of appeal, from the date of the filing of theopinion on appeal) in which to institute foreclosure actions under G.S. 105‑374for all taxes included in judgments taken under this section and for subsequenttaxes due or which, but for purchase of the property by the taxing unit, wouldhave become due; and such judicial decision shall not have the effect ofinvalidating the tax lien or disturbing its priority. (1939, c. 310, s. 1720; 1945,c. 646; 1957, cc. 91, 1262; 1971, c. 806, s. 1; 1973, c. 108, s. 52; c. 681,ss. 1, 2; 1983, c. 808, s. 9; c. 855, ss. 1, 2; 1987, c. 450; 1989, c. 37, s.7; c. 682; 1999‑439, ss. 2, 3; 2001‑139, s. 9; 2006‑106, ss.4‑6.)