State Codes and Statutes

State Codes and Statutes

Statutes > North-carolina > Chapter_46 > GS_46-28_1

§ 46‑28.1.  Petition forrevocation of confirmation order.

(a)        NotwithstandingG.S. 46‑28 or any other provision of law, within 15 days of entry of theorder confirming the partition sale or real property, any party to thepartition proceeding or the purchaser may petition the court to revoke itsorder of confirmation and to order the withdrawal of the purchaser's offer topurchase the property upon the following grounds:

(1)        In the case of apurchaser, a lien remains unsatisfied on the property to be conveyed.

(2)        In the case of anyparty to the partition proceeding:

a.         Notice of thepartition was not served on the petitioner for revocation as required by Rule 4of the Rules of Civil Procedure; or

b.         Notice of the salewas not mailed to the petitioner for revocation as required by G.S. 46‑28(b);or

c.         The amount bid orprice offered is inadequate and inequitable and will result in irreparabledamage to the owners of the real property.

In no event shall theconfirmation order become final or effective during the pendency of a petitionunder this section. No upset bid shall be permitted after the entry of theconfirmation order.

(b)        The partypetitioning for revocation shall deliver a copy of the petition to all partiesrequired to be served under Rule 5 of G.S. 1A‑1, and the officer orperson designated to make such sale in the manner provided for service ofprocess in Rule 4(j) of G.S. 1A‑1. The court shall schedule a hearing onthe petition within a reasonable time and shall cause a notice of the hearingto be served on the petitioner, the officer or person designated to make such asale and all parties required to be served under Rule 5 of G.S. 1A‑1.

(c)        In the case of apetition brought under this section by a purchaser claiming the existence of anunsatisfied lien on the property to be conveyed, if the purchaser proves by apreponderance of the evidence that:

(1)        A lien remainsunsatisfied on the property to be conveyed; and

(2)        The purchaser hasnot agreed in writing to assume the lien; and

(3)        The lien will not besatisfied out of the proceeds of the sale; and

(4)        The existence of thelien was not disclosed in the notice of sale of the property, the court mayrevoke the order confirming the sale, order the withdrawal of the purchaser'soffer, and order the return of any money or security to the purchaser tenderedpursuant to the offer.

The order of the court inrevoking an order of confirmation under this section may not be introduced inany other proceeding to establish or deny the existence of a lien.

(d)        In the case of apetition brought pursuant to this section by a party to the partitionproceeding, if the court finds by a preponderance of the evidence thatpetitioner has proven a case pursuant to sub‑subdivision (a)(2)a., b., orc. of this section, the court may revoke the order confirming the sale, orderthe withdrawal of the purchaser's offer, and order the return of any money orsecurity to the purchaser tendered pursuant to the offer.

(d1)      In the case of apetition brought pursuant to sub‑subdivision (a)(2)c. of this section,and when an independent appraisal of the property being sold has not beenpreviously entered into evidence in the action, and upon the request of anyparty, the court may order an independent appraisal prepared by a real estate appraisercurrently licensed by the North Carolina Appraisal Board and prepared inaccordance with the Uniform Standards of Professional Appraisal Practice. Thecost of an independent appraisal shall be borne by one or more of the partiesrequesting the appraisal in such proportions as they may agree. Before rulingon the petition brought pursuant to sub‑subdivision (a)(2)c. of thissection, the court may in its discretion require written evidence from theappraiser that the appraiser has been paid in full for the appraisal. If basedon the appraisal and all of the evidence presented, the court finds the amountbid or price offered to be inadequate, inequitable, and resulting inirreparable damage to the owners, the court may revoke the order confirming thesale, order the withdrawal of the purchaser's high bid or offer, and order thereturn to such purchaser of any money or security tendered by the purchaserpursuant to the high bid or offer.

(e)        If the courtrevokes its order of confirmation under this section, the court shall order aresale. The procedure for a resale is the same as is provided for an originalpublic sale under Article 29A of Chapter 1 of the General Statutes.

(f)         An orderconfirming the partition sale of real property becomes final and effective 15days after entry of the order of confirmation or when the clerk denies apetition for revocation, whichever occurs later. A party may appeal an orderconfirming the partition of sale of real property within 10 days of the orderbecoming final and effective.  (1977, c. 833, s. 1; 1985, c. 626, ss. 3‑7;2001‑271, s. 19; 2009‑362, s. 4; 2009‑512, s. 5.)