Legal Question in Credit and Debt Law in North Carolina
Hello!
There was a Complaint filed against me back in June 2013 from a local bank in North Carolina (their colors are maroon and they are named after the new minor league baseball stadium located in Forsyth county and starts with a "b"). This is in District Court in Forsyth County NC. The attorney for the bank is located about 1.5 hours south. The judgment is about $2,000+/- plus 8% since about 2011 plus attorney fees.
The attorney sent certified mail to only a UPS Store box. I was never served personally at home, work, or otherwise. I rarely check that box. By the time I got around to picking up the stack of mail there, I saw it. But, it was about 45-60 days later. So, I never had any chance to respond at all. Several weeks after I found out about this, I was visited by the Sheriff with a Notice of Rights To Have Exemptions Designated at my actual home (this was about 15 days ago as of today), which as you know, I have 20 days to respond to. Also, the bank had knowledge of my home address too and I never received anything about the Complaint, again, was never actually served.
So, I have finished and prepared the Rights To Have Exemptions Designated document of which I will be filing before Wen probably. However I am thinking of also filing the below to try to get it vacated and set aside because I really never had a chance to even respond because it was sent to the UPS Store that I rarely check. I was thinking of using this: http://www.uslegalforms.com/us/US-01528BG.htm (there is a full preview pdf available for you to look at it).
Here are my questions...
Questions:
1. While going through it in section 4 it is asking for specific NC statues to support my request. Would you be able to shoot me some good ideas and opinions on what statutes would be good to put here for a strong case to get this judgment set aside)? This can include service process issues or anything else that I could use.
2. Also, would it be even better to also cite some actual cases too? Which?
3. Do you have a better form to use and would you suggest a different approach etc to get this done?
4. I assume I have to respond with the Exemptions in case my request is denied...would you agree? So, I think I need to file the Exemptions and the Request/Petition to Vacate the Judgement too.
I just wanted to be sure I use the best possible statutes and cases (if I should add case references at all) to mention. Or, if you had any other ideas, I am willing to here what you have to say...smile. I have had to file Exemptions one time before so am familiar (when my business hit the ground hard post 08)...still recovering from all that...
Note: This has to do with a alleged withdraw that caused the bank acct to go negative just prior to my moving to another bank. So, I am not admitting or denying anything on it as I would have to research. So, it is NOT a credit card, loan, or any such debt...If reasonable, later, I may try to work out a settlement (if it makes sense) to just have it go away with the attorney (but right now they have a judgment that I was never able to respond to because of the above). The only thing they included in the Complaint was a 2 page bank statement and a Affidavit from a Bank Office outside the state of NC (West Virginia).
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I was going to totally remove section "2" of the Motion to Vacate from UsLegalForms Petition to Vacate Judgment. However, I was not sure of section "6" if I should just remove it totally or add a Exhibit A Affidavit with some meritorious defenses. The bank is basically saying a deposit was made and withdraw later that caused the account to go negative (that is the bottom line allegation). I do not recall exactly as I had multiple business and personal accounts with them at the time. So, basically, are there some good defense I could add to have them have to dig more to prove their case and otherwise persuade a judge to vacate the judgment for now?
I was going to offer to review the situation with the attorney and if agreed come up with some kind of plan to pay it off if their is a issue I believe is correct on their part...I just would like to get rid of the judgment in the short term to be able to handle and work something out..there did provide a 1 page statement but no signed agreements from me etc
Couple of quick links to help if you could assist:
http://www.ncga.state.nc.us/EnactedLegislation/Statutes/PDF/ByArticle/Chapter_1A/Article_7.pdf
http://www.ncga.state.nc.us/gascripts/Statutes/StatutesTOC.pl
http://www.americanbar.org/groups/delivery_legal_services/resources/pro_se_unbundling_resource_center/pro_se_resources_by_state.html#nc
Some others here under the North Carolina section (but not sure how to use): http://www.libertyforlife.com/~clive/coppercards/law/law_of_voids.htm
Thanks so much...
2 Answers from Attorneys
You MUST file the Motion To Claim exempt property on or before the 20th day after you received it. No exceptions. If you miss that deadline, your property will not be protected.
I will not advise you in detail about the rest of the question. You are asking a lot for a free message board, to follow all of those links and read them and comment on a commercial form. I will say that the court file should have an affidavit of service from the attorney stating the day you were served with the summons and complaint, and if you or someone of suitable age who resides in your household did not sign for or receive the summons and complaint on the day that the affidavit of service claims you were served, you may have grounds to set aside the default judgment under Rule 60 of the North Carolina Rules of Civil Procedure.
You should contact some local attorneys for advice rather than try to handle this on your own. If you bring them a complete copy of the court file on your case to review, a consultation regarding your ability to set aside this judgment should not cost very much.
I agree with Attorney Coleman. No attorney is going to give you a free motion to open the judgment and I am not going to comment on some form from a legal company which may or may not be accurate. Most forms are not.
The standard is set forth in Rule 60. You have to allege good cause. Good cause might be that you were not properly served but you do not relate any details in this regard. To establish good cause, you must show: (1) that you acted promptly, (2) that you were not at fault in answering sooner (because you were not properly served if this is borne out by the record) and (3) that you have meritorious defenses (which you do not explain here so I do not know if you do or do not - don't you know, even if you had mutiple businesses, whether you overdrew your account????). Meritorious defenses are: (1) statute of limitations, statute of frauds, some kind of contractual defenses or something like that; (2) you don't owe as much as claimed or the bank failed to give proper credit to payments; or (3) this is not a debt for which you are responsible.
What does the court file say as to where you were served? A courtesy copy may have been sent to the UPS store but the real complaint could have been sent to your home and left with an adult.
If you are going to settle this, then just settle this. Save your money and go that route. However, if you have exempt property then you definitely need to complete those exemptions even if you plan on settling. If you really do not owe the money (and you would have to review your bank statements to know) then I would consider a Rule 60 motion. Unless you meet all the elements for proving just cause to open the judgment a Rule 60 motion may be a waste of time as the court may deny it.
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