Author Topic: How long do I have to vacate a SJ in NC, and what is considered proper service?  (Read 2703 times)

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'preciatechya

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Greetings, All.  Thank you for hosting this forum, and forgive me if I've started this topic in the wrong area.

I am in receipt of a Summary Judgment granted in Buncombe County, NC.  Smith Debnam is the attorney, representing Discover Bank, the Plaintiff.  I would like to file a Motion to Vacate the Summary Judgment, as I did not receive notice that a court date was pending.  From my preliminary investigation, though, it appears as though mailing the notice through regular USPS mail constitutes as a valid means of service in NC.  Does anyone know if that is accurate?

Discover has obviously not provided a copy of a signed contract, as it does not exist.  They do, however, have copies of each and every statement going back to a zero balance.  I don't know if it's worth fighting, or if I should just go ahead and start making payments so they don't take any further action.

Also, I can't seem to come up with a concrete answer as to how long I have to file this Motion to Vacate the SJ.  The Judgment was granted on April 15th, and mailed to me by the County on April 18th.  30 days, perhaps?  30 days from the Judgment, or 30 days from the mailing?

Any help that board members can offer would be greatly appreciated.  I have used this forum as a resource for months now, and can generally find answers to my questions without posting...not this time.

suemepunk

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Greetings, All.  Thank you for hosting this forum, and forgive me if I've started this topic in the wrong area.

I am in receipt of a Summary Judgment granted in Buncombe County, NC.  Smith Debnam is the attorney, representing Discover Bank, the Plaintiff.  I would like to file a Motion to Vacate the Summary Judgment, as I did not receive notice that a court date was pending.  From my preliminary investigation, though, it appears as though mailing the notice through regular USPS mail constitutes as a valid means of service in NC.  Does anyone know if that is accurate?

If Bumbombe is like Meck, I believe you would have to be served by a Sheriff or service in person to have an open case.
Did they send registered?  You sign anything?  The clerk of court will have the file, you can go check it out.   Are you
in Bumcombe County?


Discover has obviously not provided a copy of a signed contract, as it does not exist.  They do, however, have copies of each and every statement going back to a zero balance.  I don't know if it's worth fighting, or if I should just go ahead and start making payments so they don't take any further action.

I would not make payments until you resolve this....you will re-start the clock on SOL.

Also, I can't seem to come up with a concrete answer as to how long I have to file this Motion to Vacate the SJ.  The Judgment was granted on April 15th, and mailed to me by the County on April 18th.  30 days, perhaps?  30 days from the Judgment, or 30 days from the mailing?

I believe 30 days is the magic number.

Any help that board members can offer would be greatly appreciated.  I have used this forum as a resource for months now, and can generally find answers to my questions without posting...not this time.

kevinmanheim

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Was this in small claims court? How much was the judgment?

'preciatechya

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The Sheriff delivered the original papers last year, but I have been going back and forth with these folks during the Discovery process - I was not served by the Sheriff or notified with certified mail that there was a pending court date.  I will go to the courthouse today to determine how I was notified; unfortunately, it appears as though regular USPS mail is an acceptable means of service in NC.

The original amount was 9K and change, with their attorney's fees, it's up past 11K.

I want to file the MTVSJ, indicating that I had not been properly notified (hopefully that sticks), and fight the case on the grounds that there is no contract, as I believe that's my best defense.

I believe it is 30 days as well - whether its 30 days from date of judgment or 30 days from date that Buncombe Cty mailed the notice to me gives me an extra 3 days.  I think I'm going to get this written tonight to be within the 30 days of date of judgment just to be on the safe side.

kevinmanheim

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I was not served by the Sheriff or notified with certified mail that there was a pending court date. 
There is no requirement to serve you a court date via sheriff or certified mail. Only first class mail is necessary.

Once you were properly served with the summons, it became your responsibility to follow the case progress.

If it were me, I would take all the paperwork to a local attorney for a consult. See if they notice any holes in the case that would give you a chance to flip it.


'preciatechya

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Thank you all for the advice.  I had a feeling that regular mail was considered proper notice here in NC.  I'm afraid that if I do take this back into the court system, all that I will accomplish is racking up a couple of thousand more that I'll have to pay to them for their fees.

Any suggestions or advice on how to handle paying them back, now that they have a judgment?  The paperwork said that they MAY file a lien, I would like to avoid that if at all possible.  I'm thinking a regular payment plan may help.

Hope everyone has a great Friday, and a wonderful weekend!