Can my attorney ask the foreclosure side for more time so I can sell the house, and what do I do if they refuse? – South Carolina

Short Answer

Yes. A South Carolina attorney can ask the foreclosing lender to postpone the hearing or sale while the owners pursue a private sale, but the lender does not have to agree. If the lender refuses, the attorney can promptly ask the foreclosure court for a continuance or other appropriate relief, supported by a specific and realistic sale plan. A pending partition action does not automatically stop the foreclosure.

Understanding the Problem

The issue is whether a South Carolina co-owner can obtain enough time in a pending foreclosure to sell the property when another co-owner will not cooperate. The immediate decision concerns whether the lender or the court will delay the foreclosure before the upcoming hearing so that a voluntary sale or court-ordered partition sale can proceed.

Apply the Law

South Carolina uses a judicial foreclosure process. The lender may ask the court to determine the debt and order the property sold. In many counties, the Court of Common Pleas refers the case to the county Master-in-Equity, who conducts the foreclosure hearing and may oversee the judicial sale.

The lender may voluntarily agree to additional time, but an informal request alone does not change a hearing date or suspend the case. Any agreement should be written and should address the hearing, the foreclosure sale, required payments, the proposed closing deadline, and what happens if the private sale fails. If no agreement is reached, the owner must request relief from the court handling the foreclosure.

Key Requirements

A concrete request: The request should identify the exact amount of time needed and include evidence of a realistic path to closing, such as a listing agreement, purchase contract, payoff request, title work, or scheduled closing.
Authority to complete the sale: A private sale normally requires every record owner to sign the necessary documents. If a co-owner refuses, a partition action may provide a way to obtain a court-ordered sale, but it usually will not move as quickly as an approaching foreclosure hearing.
Timely court action: If the lender refuses, the attorney should seek a continuance, stay, or other appropriate relief before the scheduled hearing or sale. Filing a partition complaint by itself does not postpone the foreclosure.
Sufficient sale proceeds: A proposed sale generally must produce enough funds to satisfy the mortgage and other liens at closing unless the affected creditors approve different terms.
Grounds for partition by sale: The Court of Common Pleas may order a sale when the property cannot be fairly divided in kind or allotted without injury to the parties.

What the Statutes Say

S.C. Code Ann. § 29-3-10 (Foreclosure and sale) – Treats the borrower as the property owner while allowing the mortgage holder to pursue satisfaction of the debt through foreclosure and sale.
S.C. Code Ann. § 29-3-650 (Judgment and order of sale) – Allows the court to determine the secured debt and direct a sale of the mortgaged property in the same proceeding.
S.C. Code Ann. § 15-61-10 (Right to partition) – Allows qualifying joint tenants and tenants in common to compel partition.
S.C. Code Ann. § 15-61-50 (Partition jurisdiction and sale) – Gives the Court of Common Pleas authority to divide co-owned property or order a sale when a fair physical division or allotment cannot be made.
S.C. Code Ann. § 15-29-60 (Notice of judicial sale) – Generally requires notice of a court-ordered real estate sale to be advertised for twenty-one days, once a week for at least three weeks.

Analysis

Apply the Rule to the Facts: The property has multiple owners, one owner is not cooperating, and a foreclosure hearing is approaching. Those facts support making an immediate, documented request for a short delay, but they do not require the lender or court to grant one. Because a voluntary closing generally requires the other owner’s participation, the request will be stronger if it explains how the pending or proposed partition action can produce authority to sell and why the requested schedule is realistic.

The partition action and foreclosure address different rights. Partition addresses the co-owners’ right to end shared ownership, while foreclosure enforces the mortgage lien. More information about the partition remedy appears in this explanation of South Carolina partition actions. The mortgage lien does not disappear because a partition case is filed, and the foreclosure may overtake the partition case unless the lender agrees to wait or the foreclosure court grants relief.

Process & Timing

Who acts: The co-owner’s attorney. Where: Counsel for the foreclosing lender and, if necessary, the South Carolina Court of Common Pleas or county Master-in-Equity handling the foreclosure. What: A written request for postponement supported by the proposed listing or contract, estimated closing date, payoff information, title status, and a plan for obtaining the other owner’s signature or a partition order. When: Immediately and before the upcoming foreclosure hearing.
If the lender refuses: The attorney may file a motion or written request for a continuance, stay, or other available relief in the foreclosure case and ask that it be heard before the scheduled hearing or sale. The filing should explain the requested period, the likely benefit of a private sale, the status of the partition case, and the concrete steps already completed.
Address the co-owner problem: The partition complaint is filed in the Court of Common Pleas for the county where the property is located. The plaintiff must identify the owners and interested lienholders, establish the ownership interests, and ask for a sale if the property cannot be fairly divided. Depending on the type of property, a nonpetitioning co-owner may receive an opportunity to purchase the petitioning owner’s interest before the court orders a sale.
Complete the approved disposition: If the lender or court allows time and the owners obtain authority to sell, the closing attorney pays valid liens from the proceeds and distributes any remaining funds according to the owners’ rights or the partition order. If no postponement is granted, the foreclosure proceeds under the existing schedule.

Exceptions & Pitfalls

No automatic delay: Negotiations, a property listing, a purchase offer, or a newly filed partition case does not automatically continue the foreclosure hearing.
An unsigned deal may carry little weight: A general statement that the house could sell is less persuasive than a signed contract, verified financing, current payoff figures, completed title work, and a firm closing date.
The co-owner may still block a private sale: A listing agreement or purchase contract does not necessarily provide authority to transfer the entire property without every owner’s consent. Court authority may be needed.
Partition can take longer than foreclosure: Service, valuation, ownership disputes, lien issues, and a co-owner’s statutory opportunity to purchase an interest can delay a partition sale. Additional details appear in this overview of sales in South Carolina partition cases.
Liens affect the available equity: The mortgage and other valid liens generally must be addressed before co-owners receive sale proceeds. A partition action does not eliminate a prior mortgage.
Do not miss response deadlines: The foreclosure summons, hearing notice, and any court order may contain separate deadlines. Seeking more time from opposing counsel does not extend them unless the court enters an order or the applicable rules permit a written agreement.
Post-sale rules vary: In some foreclosure cases, bidding may remain open for thirty days after the sale. That period is not a dependable substitute for obtaining relief before the hearing or sale, and different rules may apply when the lender waives a deficiency claim.

Conclusion

A South Carolina attorney can ask the foreclosing lender for time to complete a private or partition sale, but the lender may refuse. The strongest request gives a definite closing schedule, proof that the sale can satisfy the mortgage, and a workable plan for the uncooperative co-owner. Because a partition filing does not automatically stop foreclosure, the next step is to file any request for a continuance or stay with the court handling the foreclosure before the scheduled hearing or sale.

Talk to a Partition Action Attorney

If a co-owner will not cooperate while foreclosure is moving forward, our firm has experienced attorneys who can evaluate the foreclosure schedule, communicate with the lender’s counsel, and explain whether a partition action or court request may preserve time for a sale.

Disclaimer: This article provides general information about South Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed South Carolina attorney.