This website uses cookies to store information on your computer. Some of these cookies are used for visitor analysis, others are essential to making our site function properly and improve the user experience. By using this site, you consent to the placement of these cookies. Click Accept to consent and dismiss this message or Deny to leave this website. Read our Privacy Statement for more.
Home   |   Contact Us   |   Sign In   |   Register
Article Library
Blog Home All Blogs
Search all posts for:   


View all (853) posts »

North Carolina: Appellate Reviews of Due Diligence Requisites for Service by Publication or Posting

Posted By USFN, Tuesday, April 17, 2018
Updated: Monday, April 16, 2018

April 17, 2018

by Devin Chidester
Brock & Scott, PLLC – USFN Member (North Carolina)

In North Carolina, if personal service on a defendant is unavailable, the plaintiff may satisfy service of process alternatively through publication or posting at the subject property. However, for these alternative measures, a plaintiff must complete the requisite due diligence required by the Rules of Civil Procedure.1 Recently, two North Carolina Court of Appeals decisions added further layers to the “due diligence” interpretation.

In re Ackah

First, In re Ackah2 dealt with lack of actual notice by a homeowners association (HOA). In Ackah, the homeowner moved out of the country (leasing her home during her absence) and had her mail forwarded to a relative’s home. The defendant fell behind in HOA dues and, accordingly, the HOA commenced foreclosure. Delinquency and foreclosure notices sent to the defendant were returned “unclaimed” and the HOA posted notice at the subject property.3 Defendant Ackah successfully set aside the sale for improper service.

Upon appeal by the third-party purchaser at the sale, the Court of Appeals held that the HOA failed to meet the due diligence standard required, prior to posting notice to the subject property. Specifically, the court pointed to the fact that the HOA chose not to attempt contact through a known email address. The court reasoned that the HOA should have known that Ackah did not reside at the property after sending letters to an out-of-state address, and since all other notices were returned as either unclaimed or undeliverable. According to the court, due diligence required the HOA to at least attempt notice through a known form of contact information, such as the defendant’s email address.

Watauga County v. Beal

Next, the Court of Appeals examined whether due diligence was satisfied in the context of a tax foreclosure. In Watauga County v. Beal,4 the county attempted to collect delinquent taxes from the defendant for two years. The defendant provided only a fax number and post office box address as contact information. The county sent delinquency and foreclosure notices to the fax number, post office box, and subject property. All notices were returned as “unclaimed” or “undeliverable,” resulting in the county publishing notice. Defendant Beal appealed the foreclosure, asserting improper service because the plaintiff allegedly did not satisfy due diligence prior to publishing notice. The Court of Appeals held that the county had, in fact, satisfied necessary due diligence, because — in addition to efforts undertaken by the county to effectuate service — the county also had an extensive prior history of non-contact by Beal.


The standard for due diligence, cited by both Ackah and Beal, requires a plaintiff to use “all resources reasonably available … in attempting to locate defendant.”5 Neither case diverges from this standard, but both may have further muddied the already unclear waters.

1 See N.C.G.S. § 1A-1, Rule 4(j1), (k); N.C.G.S. § 45-21.16; N.C.G.S. § 47F-3-116(c), (f).
2 In re Ackah, __ N.C. App. __, 803 S.E.2d 794 (2017).
3 Associations are allowed to post a notice of hearing to the subject property when service by publication would be allowed under Rule 4 of Rules of Civil Procedure. See N.C.G.S. § 47F-3-116(c), (f) and N.C.G.S. § 1A-1, Rule 4(j1), (k).
4 Watauga County v. Beal, 806 S.E.2d 338 (2017).
5 See Jones v. Wallis, 211 N.C. App. 353, 712 S.E.2d 180 (2011).

© Copyright 2018 USFN. All rights reserved.
April e-Update

Note for consideration of the USFN Award of Excellence: This article is not a "Feature."


This post has not been tagged.

Share |
Permalink | Comments (0)
Membership Software Powered by YourMembership  ::  Legal