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Hey gang..

My friend is here the one with the lawsuit for court next week.. I am looking at her summary information and there are dates all over.. for example it says they filed at the courthouse in December but she was not served until March (we live in a town the size of a postage stamp it doesnt take three months to serve)

Also there is an affidavit attached for judgement signed by the otherside and notrized.. both of these people are in VA.. we are in NC.. I remember reading something about that on this board but I can't find it..

We are trying to get the case dismissed... the judge seems to really like the plantiff though... (this is the second round in court)... These dates seem odd to me.. is this normal.. and the out of state notary.. seems strange.

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Guest E. Normis Debtor

In most jurisdictions you up to 6 months from the time you file to serve process. Your rules of civil procedure will give the exact time.

As long as the notary is current in VA, and that's where she did the notarizing, there is no problem.

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Rule 4. Process.

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.

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.

Summons -- Return.

Personal service or substituted personal service of summons as prescribed by Rule 4(j)(1) a and b must be made within 30 days after the date of the issuance of summons, except that in tax and assessment foreclosures under G.S. 47-108.25 or G.S. 105-374 the time allowed for service is 60 days. 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.

Summons -- Extension; endorsement, alias and pluries.

When any defendant in a civil action is not served within the time allowed for service, the action may be continued in existence as to such defendant by either of the following methods of extension:

  1. The plaintiff may secure an endorsement upon the original summons for an extension of time within which to complete service of process. Return of the summons so endorsed shall be in the same manner as the original process. Such endorsement may be secured within 90 days after the issuance of summons or the date of the last prior endorsement, or
  2. The plaintiff may send out an alias or pluries summons returnable in the same manner as the original process. Such alias or pluries summons may be sued out at any time within 90 days after the date of issue of the last preceding summons in the chain of summonses or within 90 days of the last prior endorsement. Provided, in tax and assessment foreclosures under G.S. 47- 108.25 and G.S. 105-374, the first endorsement may be made at any time within two years after the issuance of the original summons, and subsequent endorsements may thereafter be made as in other actions; or an alias or pluries summons may be sued out at any time within two years after the issuance of the original summons, and after the issuance of such alias or pluries summons, the chain of summonses may be kept up as in any other action. Provided, for service upon a defendant in a place not within the United States, the first endorsement may be made at any time within two years after the issuance of the original summons, and subsequent endorsements may thereafter be made at least once every two years; or an alias or pluries summons may be sued out at any time within two years after the issuance of the original summons, and after the issuance of such alias or pluries summons, the chain of summonses may be kept up as in any other action if sued out within two years of the last preceding summons in the chain of summonses or within two years of the last prior endorsement. Provided, further, the methods of extension may be used interchangeably in any case and regardless of the form of the preceding extension.

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You might be able to argue that the court does not have jurisidiction because of the late served summons, but I am betting teh judge will deny it since she answered and appeared.

You argue that the affidavits are not competent evidence as they are not sworn to by someone within the State and the affidavits are not accompanied by a certificate of conformity. The C/C would give the court comfort that the oath was taken in a manner that is proper in the other state. Otherwise, it is hearsay and not competent evidence. This has been used successfully as a defense in New York State courts. I can't tell you what the NC courts would have to say. But you make that argument and you ask teh cour tto deny the summary judgment motion.

That should be the secondline of defense. The first is that there is a triable issue of fact, that is, there is some tangible dispute about , say, 1) the plaintiff's standing or capacity, 2) the obligation, 3) the amount, etc. What are her defenses? She should be prepared to offer something that tends to support her defenses or casts doubt on the plaintiff's claim.

Is this a JDB?

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thanks for the information regarding that.. I was wondering about the notary... and the fact that it was filed at our courthouse in Dec and she didnt see it until March seemed really odd to me... (our county is very small she lives five minutes from the courthouse)..

as far as a second line of defense, since she was not allowed to use her credit report to show SOL that went out the window.. and since it states they filed in December...one month from her SOL it appears they got in under the wire

mikey where did you find that. I may need a copy of the five day rule

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Guest E. Normis Debtor

You argue that the affidavits are not competent evidence as they are not sworn to by someone within the State and the affidavits are not accompanied by a certificate of conformity. The C/C would give the court comfort that the oath was taken in a manner that is proper in the other state. Otherwise, it is hearsay and not competent evidence. This has been used successfully as a defense in New York State courts.

I've not seen that requirement in other jurisdictions. If such a defense were raised, since this is a motion hearing, I would think the plaintiff could motion leave to cure the defect nunc pro tunc.

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Guest E. Normis Debtor
Found the rules for civil procedure and with everything I read it appears that they were to serve it with in five days... in NC.. can she use this as a counter claim.. she was not served until march (she had not moved or left town)... is this even worth bringing up the judge... thanks!!!!!

It's always worth bringing up. Generally answering or appearing is considered waiver of service so it may be moot to the court.

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