Author Topic: About vacating a judgement?  (Read 2494 times)

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SREEL

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About vacating a judgement?
« on: August 23, 2009 03:12:50 AM »
I live in North Carolina, lvnv has 3 judgements that they slipped by me without my even knowing I had a Court date. they have already served a writ of execution for them, but I did not have any real property they could attach. now they are sending me letters telling me I need to make monthly payments. I am wondering what I can add to the vacate paper besides the fact of no court date knowledge?

Also a friend told me that if I try to vacate the judgement and loose I will owe twice what they say I owe now. I am ready to get them off my back.

Newryman

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Re: About vacating a judgement?
« Reply #1 on: August 23, 2009 04:42:32 AM »
How does you friend earn his living?

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Re: About vacating a judgement?
« Reply #2 on: August 23, 2009 10:38:35 AM »
Newryman?  Yes, how does the "friend" earn his living?  There is nothing in the law that states failure to overturn a judgment will result in a penalty to the loser of the judgment being doubled. 

SREEL? How long ago were these judgments awarded?  You may still have time to vacate them.  See GS 1A-1, Rule 60:  NC Civil Procedure, Relief from Judgment or Order:

http://www.ncleg.net/EnactedLegislation/Statutes/HTML/BySection/Chapter_1A/GS_1A-1,_Rule_60.html

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Rule 60. Relief from judgment or order.

...

(b)       Mistakes; inadvertence; excusable neglect; newly discovered evidence; fraud, etc. – On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:

(1)       Mistake, inadvertence, surprise, or excusable neglect;


(2)       Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);

(3)       Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;

(4)       The judgment is void;

(5)       The judgment has been satisfied, released, or discharged, or  a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or

(6)       Any other reason justifying relief from the operation of the  judgment.

The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order, or  proceeding was entered or taken. A motion under this section does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court. The procedure for obtaining any relief from a judgment, order, or proceeding shall be by motion as prescribed in these rules or by an independent action.

(c)       Judgments rendered by the clerk. – The clerk may, in respect of judgments rendered by himself, exercise the same powers authorized in sections (a) and (b). The judge has like powers in respect of such judgments. Where such powers are exercised by the clerk, appeals may be had to the judge in the manner provided by law.  (1967, c. 954, s. 1.)

(I edited out (a) because it does not apply here.)

If you never were served?  You would move to vacate the awards on the grounds of excusable mistake (mistake, surprise,excusable neglect) and fraud (failure to properly serve process).  The first tells the judge that you did not defend because you did not know you had to and the second because they defrauded you and the court by failing to serve notice to appear (and the complaint).

Note carefully:  If you were never served or service was deficient, LVNV defrauded both YOU and the court by failure to properly serve the complaints.  Go to the court and pull the files and note the "Certificate of Service" and what it says.  If there is anything that does NOT fit your situation and/or there is no certificate at all in any or all of the cases?  There's your proof.

Also see Rule 5 of the NC RCP (GS 1A-1, Rule 5) for the Rules pertaining to service of process:  http://www.ncleg.net/EnactedLegislation/Statutes/HTML/BySection/Chapter_1A/GS_1A-1,_Rule_5.html

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(b)       Service – How made. – A pleading setting forth a counterclaim or cross claim shall be filed with the court and a copy thereof shall be served on the party against whom it is asserted or on the party's attorney of record. With respect to all pleadings subsequent to the original complaint and other papers required or permitted to be served, service with due return may be made in the manner provided for service and return of process in Rule 4 and may be made upon either the party or, unless service upon the party personally is ordered by the court, upon the party's attorney of record. With respect to such other pleadings and papers, service upon the attorney or upon a party may also be made by delivering a copy to the party or by mailing it to the party at the party's last known address or, if no address is known, by filing it with the clerk of court. Delivery of a copy within this rule means handing it to the attorney or to the party, leaving it at the attorney's office with a partner or employee, or by sending it to the attorney's office by a confirmed telefacsimile transmittal for receipt by 5:00 P.M. Eastern Time on a regular business day, as evidenced by a telefacsimile receipt confirmation. If receipt of delivery by telefacsimile is after 5:00 P.M., service will be deemed to have been completed on the next business day. Service by mail shall be complete upon deposit of the pleading or paper enclosed in a post‑paid, properly addressed wrapper in a post office or official depository under the exclusive care and custody of the United States Postal Service.

A certificate of service shall accompany every pleading and every paper required to be served on any party or nonparty to the litigation, except with respect to pleadings and papers whose service is governed by Rule 4. The certificate shall show the date and method of service or the date of acceptance of service and shall show the name and service address of each person upon whom the paper has been served. If one or more persons are served by facsimile transmission, the certificate shall also show the telefacsimile number of each person so served. Each certificate of service shall be signed in accordance with and subject to Rule 11 of these rules.

Since they had to serve the summons at the commencement of the action as per Rule 4 ( http://www.ncleg.net/EnactedLegislation/Statutes/HTML/BySection/Chapter_1A/GS_1A-1,_Rule_4.html )
the proof had to be filed per Rule 5; the applicable part of Rule 4:

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Rule 4. Process.

(a)       Summons – Issuance; who may serve. – Upon the filing of the complaint, summons shall be issued forthwith, and in any event within five days. The complaint and summons shall be delivered to some proper person for service. In this State, such proper person shall be the sheriff of the county where service is to be made or some other person duly authorized by law to serve summons. Outside this State, such proper person shall be anyone who is not a party and is not less than 21 years of age or anyone duly authorized to serve summons by the law of the place where service is to be made. Upon request of the plaintiff separate or additional summons shall be issued against any defendants. A summons is issued when, after being filled out and dated, it is signed by the officer having authority to do so. The date the summons bears shall be prima facie evidence of the date of issue.

(b)       Summons – Contents. – The summons shall run in the name of the State and be dated and signed by the clerk, assistant clerk, or deputy clerk of the court in the county in which the action is commenced. It shall contain the title of the cause and the name of the court and county wherein the action has been commenced. It shall be directed to the defendant or defendants and shall notify each defendant to appear and answer within 30 days after its service upon him and further that if he fails so to appear, the plaintiff will apply to the court for the relief demanded in the complaint. It shall set forth the name and address of plaintiff 's attorney, or if there be none, the name and address of plaintiff. If a request for admission is served with the summons, the summons shall so state.

(c)       Summons – Return. – Personal service or substituted personal service of summons as prescribed by Rule 4(j)(1) a and b must be made within 60 days after the date of the issuance of summons. When a summons has been served upon every party named in the summons, it shall be returned immediately to the clerk who issued it, with notation thereon of its service.

Failure to make service within the time allowed or failure to return a summons to the clerk after it has been served on every party named in the summons shall not invalidate the summons. If the summons is not served within the time allowed upon every party named in the summons, it shall be returned immediately upon the expiration of such time by the officer to the clerk of the court who issued it with notation thereon of its nonservice and the reasons therefor as to every such party not served, but failure to comply with this requirement shall not invalidate the summons.

It also appears you were not properly notified by the court at the time the judgments were handed down; see GS 1A-1 Rule 58:

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Rule 58. Entry of judgment.

Subject to the provisions of Rule 54(b), a judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court. The party designated by the judge or, if the judge does not otherwise designate, the party who prepares the judgment, shall serve a copy of the judgment upon all other parties within three days after the judgment is entered. Service and proof of service shall be in accordance with Rule 5. If service is by mail, three days shall be added to the time periods prescribed by Rule 50(b), Rule 52(b), and Rule 59. All time periods within which a party may further act pursuant to Rule 50(b), Rule 52(b), or Rule 59 shall be tolled for the duration of any period of noncompliance with this service requirement, provided however that no time period under Rule 50(b), Rule 52(b), or Rule 59 shall be tolled longer than 90 days from the date the judgment is entered. Subject to the provisions of Rule 7(b)(4), consent for the signing and entry of a judgment out of term, session, county, and district shall be deemed to have been given unless an express objection to such action was made on the record prior to the end of the term or session at which the matter was heard.

Notwithstanding any other law to the contrary, any judgment entered by a magistrate in a small claims action pursuant to Article 19 of Chapter 7A shall be entered in accordance with this Rule except judgments announced and signed in open court at the conclusion of a trial are considered to be served on the parties, and copies of any judgment not announced and signed in open court at the conclusion of a trial shall be served by the magistrate on all parties in accordance with this Rule, within three days after the judgment is entered. If service is by mail, three days shall be added to the time periods prescribed by G.S. 7A‑228. All time periods within which a party may further act pursuant to G.S. 7A‑228 shall be tolled for the duration of any period of noncompliance of this service requirement, provided that no time period shall be tolled longer than 90 days from the date judgment is entered.

If those judgments were handed down and you were not served with the decisions within 90 days of the date of judgment as the law requires?  That would void those judgments and make them unenforceable if the party designated to prepare the judgment failed to serve the decision on all parties. 

In Small Claims, the magistrate would have to serve the notice if it was not announced in open court. This option would be impossible to pull off if any party were absent; your motion should make it clear that notice in that manner could not have been effective since you were not present and the record shows that the award(s) was (were) announced in open court.
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SREEL

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Re: About vacating a judgement?
« Reply #3 on: August 25, 2009 07:57:23 PM »
I have filed a Motion to Vacate Judgement on the 3 Judgements lvnv already have against me today. I will send a certified mail copy to the attorney on Friday.

Does the attorney contact me about this or will I get a court date? I would like to be prepared.

My friend was referring to the attorneys fees if I loose, I do not intend to loose...