Author Topic: Vacating default judgement in north carolina  (Read 432 times)

0 Members and 1 Guest are viewing this topic.

afterhours1

  • Valued Member
  • Posts: 4
Vacating default judgement in north carolina
« on: September 24, 2014 04:52:02 PM »
 :whackacow: I checked my credit report yesterday and found that I had a judgement filed against me in July of this year.
I called the clerk of court and service was back in September of 2010 by certified letter having being signed by my exwife. I did not even live there at the time. How do I vacate the judgement...attorneys here want 4k to do this. I searched the NC courts system and did not find anything but the cover letter looking for a forum.
thanks

kevinmanheim

  • Valued Member
  • Posts: 9412
Re: Vacating default judgement in north carolina
« Reply #1 on: September 24, 2014 05:32:00 PM »
I would contact the attorney that obtained the judgment for the creditor. Send a CMRRR letter to them.

Let them know that you were never served in the case, this is the first you have heard about it, and that you want to know if they will agree to a joint motion to vacate the judgment.

 

afterhours1

  • Valued Member
  • Posts: 4
Re: Vacating default judgement in north carolina
« Reply #2 on: September 24, 2014 05:54:19 PM »
No, now that they have the judgment, they are not so inclined. I called this morning. They are happy to settle for the full amount.

kevinmanheim

  • Valued Member
  • Posts: 9412
Re: Vacating default judgement in north carolina
« Reply #3 on: September 24, 2014 06:05:19 PM »
Did you speak to the attorney, or an employee of a law firm?

Brunothe JDBKiller

  • Valued Member
  • Posts: 5971
Re: Vacating default judgement in north carolina
« Reply #4 on: September 24, 2014 06:09:33 PM »
File this motion.


Even after a judgment has been rendered by a court, then entered by the clerk of court, the judgment debtor still has options for getting it nullified. Most people are aware that an appeal can be taken directly to the Court of Appeals.  This generally must be done within 30 days of entry of the judgment.

What is less well-known, however, is that the debtor also has the option of filing a motion in the trial court to have the judgment set aside. This is done under Rule 60 of the North Carolina Rules of Civil Procedure.  (There are other post judgment motions under the Rules, but Rule 60 is the one most likely to come up during the execution phase).

The thing to watch out for is: unlike an appeal,which has to be filed within 30 days or the right to appeal is lost, the right to file a Rule 60 motion lasts for a reasonable time.

The Rule goes on to provide, in part, that the "reasonable time" it refers to (depending on which subsection of Rule 60 the debtor is invoking) may not exceed a full year. When collecting a judgment, therefore, the first thing to do is determine whether the judgment debtor is still eligible to file a Rule 60 motion.
You might think that all that needs to happen is to look at the date of the judgment (which is measured from the date the clerk stamped or "clocked in" the order), but that is not all there is to it.

Despite the one year time limit under Rule 60, there have been cases where Rule 60 motions have been held to have been timely filed, even when they were filed well after one year. For example, in the recently decided case of Sharyn's Jewelers, LLC v IPayment, Inc., et al., 674 S.E. 2d 732 (April 2009), the North Carolina Court of Appeals found "extraordinary circumstances" to justify allowing one of the Defendants to have its Rule 60 motion considered even though the motion had not been filed until 17 months after the judgment had been entered. The circumstances were that the appealing defendant (Vericomm) had not received notice of the judgment against it for 17 months, and that the judgment awarded relief to the Plaintiff that exceeded what was sought in the Plaintiff's complaint. Specifically, the trial court had erroneously entered judgments against Vericomm on causes of action that had been pled only against the other defendants, but not Vericomm. As such, the judgment was "irregular" and could therefore be vacated in part, to the extent of the irregularities.


http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/BySection/Chapter_1A/GS_1A-1,_Rule_60.html
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

afterhours1

  • Valued Member
  • Posts: 4
Re: Vacating default judgement in north carolina
« Reply #5 on: September 24, 2014 06:55:51 PM »
I spoke to the plantiffs attorney. He knows what it will cost for me to hire and fight.

So in filing a 60 motion, i found the cover sheet form, do i need to use an official form to file the motion to vacate and would a summons be necessary, I guess what I am asking will there be a hearing or will it just be ruled on. Thanks for all the good info, good stuff. thanks again

Brunothe JDBKiller

  • Valued Member
  • Posts: 5971
Re: Vacating default judgement in north carolina
« Reply #6 on: September 24, 2014 08:39:18 PM »
No summons, just file the motion. Google it, there should be plenty of samples to copy from. Or check the sample pleadings section here. You have to be able to do your own research.

Check your rules to see if you have to notice the other side. If a hearing is scheduled, they will notify you or you can look it up on the court web site.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

afterhours1

  • Valued Member
  • Posts: 4
Re: Vacating default judgement in north carolina
« Reply #7 on: September 24, 2014 08:48:21 PM »
cool thanks