5.2 Remission, Relief & Motions to Set Aside Forfeiture

Remission, Relief, and Motions to Set Aside

Receiving a notice of forfeiture is a high-stress event, but it is not the final word. North Carolina law provides specific, structured mechanisms for a surety or bail agent to seek relief from a forfeiture before it becomes a final, collectible judgment. The primary tool for this is the Motion to Set Aside the forfeiture, governed by NCGS 15A-544.5.

Understanding NCGS 15A-544.5

NCGS 15A-544.5 is arguably the most important statute for a bail agent to memorize regarding forfeiture defense. It strictly limits the reasons a court can use to set aside a forfeiture. If a situation does not fit precisely into one of the statutory grounds, the court has no authority to set the forfeiture aside, no matter how sympathetic the circumstances.

The 7 Statutory Grounds to Set Aside a Forfeiture

To successfully set aside a forfeiture, the surety or bail agent must prove that one of the following seven conditions exists:

1. The defendant's failure to appear has been set aside by the court and any order for arrest issued for that failure to appear has been recalled. This often happens if the defendant had a valid excuse for missing court (e.g., medical emergency) and the judge reinstates the bond.
2. All charges for which the defendant was bonded to appear have been finally disposed by the court other than by the State's taking a dismissal with leave. If the underlying criminal case is resolved (e.g., guilty plea, not guilty verdict, outright dismissal), the bond's purpose is fulfilled.
3. The defendant has been surrendered by a surety on the bail bond as provided by G.S. 15A-540. This is the most common ground; the bail agent apprehends the fugitive and surrenders them to the county jail.
4. The defendant has been served with an Order for Arrest for the Failure to Appear on the criminal charge in the case in question. If law enforcement catches the defendant on the FTA warrant before the 150 days expire, the surety can seek relief.
5. The defendant died before or within the period between the failure to appear and the final judgment. Death of the principal extinguishes the bond obligation. A certified death certificate is required.
6. The defendant was incarcerated in a unit of the Division of Adult Correction and Juvenile Justice (NC Department of Public Safety) and is serving a sentence or in a unit of the Federal Bureau of Prisons located within the borders of the State at the time of the failure to appear. If the state or federal government already has the defendant locked up in NC, the surety is relieved.
7. The defendant was incarcerated in a local, state, or federal penal institution in any jurisdiction outside the State of North Carolina at the time of the failure to appear, and the district attorney for the county in which the charges are pending was notified of the defendant's incarceration while the defendant was still incarcerated and the defendant remains incarcerated for a period of 10 days following the district attorney's receipt of notice. This is the "out-of-state incarceration" ground, requiring specific notice to the DA and a 10-day holding period.

The Motion Process

Filing a Motion to Set Aside is a formal legal procedure that must be executed correctly.

• Timing: The motion must be filed in the clerk's office on or before the 149th day (effectively before the 150 days expire) after the notice of forfeiture was given.
• Documentation: The motion must be in writing and state the specific statutory ground relied upon. It must be accompanied by evidence supporting the claim (e.g., a Certificate of Surrender, a death certificate, court records showing case disposition).
• Service: A copy of the motion and supporting documents must be served on the district attorney and the attorney for the county board of education. The school board is a party to these proceedings because forfeiture proceeds constitutionally fund the public schools in North Carolina.

Objections and Hearings

Once the motion is filed and served, the district attorney or the school board attorney has 20 days to file a written objection.

• No Objection: If no objection is filed within 20 days, the clerk of superior court will administratively enter an order setting aside the forfeiture.
• Objection Filed: If an objection is filed, the matter must be scheduled for a hearing before a judge. At this hearing, the burden of proof is entirely on the surety or bail agent to demonstrate, by a preponderance of the evidence, that one of the seven statutory grounds has been met. The judge will then issue an order either granting or denying the motion.

Remission of Forfeiture

Remission refers to the process of seeking the return of money after a final judgment of forfeiture has already been paid. This is a very rare and difficult process.

Under NCGS 15A-544.8, a surety may seek remission only under extremely narrow circumstances, primarily if the surety can prove that extraordinary cause prevented the filing of a motion to set aside before the final judgment was entered. Even if extraordinary cause is shown, remission is highly discretionary and heavily contested by the school board.

Bail agents should never rely on remission as a strategy. The focus must always be on resolving the forfeiture during the 150-day window via a Motion to Set Aside.

Striking vs. Setting Aside

It is important to understand the terminology:

• Setting Aside: This is the process described above under 15A-544.5. It relieves the surety of liability because the bond condition has been satisfied (e.g., by surrender) or excused. The bond is no longer active.
• Striking the FTA: Sometimes, a judge will "strike" the failure to appear and reinstate the bond. This means the court acts as if the FTA never happened. The forfeiture is set aside, but the bond remains active, and the surety continues to be liable for the defendant's future appearances. Bail agents must monitor these situations closely, as they remain on the hook for a defendant who has already demonstrated unreliability.

Current Set-Aside Grounds under G.S. 15A-544.5(b)

The Pearson content outline historically summarized seven motion-to-set-aside reasons. Current G.S. 15A-544.5(b) lists nine exclusive statutory reasons, including:

1. FTA set aside and any OFA recalled
2. All charges finally disposed (other than dismissal with leave)
3. Defendant surrendered by surety under G.S. 15A-540
4. Defendant served with OFA for the FTA
5. Defendant died before final judgment (death certificate)
6. Incarcerated in N.C. Division of Prisons / federal prison in NC at time of FTA
7. Incarcerated elsewhere in the U.S. with timely DA notice and 10-day incarceration after notice
8. Notice of forfeiture was not provided as required by G.S. 15A-544.4(e) — motion for this ground must be filed within 30 days of notice under 544.4(d)
9. Court refused to issue an OFA for the FTA

Ordinary set-aside motions (grounds other than #8) may be filed any time before 150 days after notice under G.S. 15A-544.4(d). If neither the DA nor the county board of education objects within 20 days after service of the motion, the clerk must set the forfeiture aside.