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Motion to Dismiss Ignored, Default Judgment Granted in NC??


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Hello:

A few months back, I posted a few threads regarding the fact I was sued in the wrong county by a law firm who was well aware of my current address in another county. Upon much recommendation and insight from the forum, I filed a Pre-Answer Motion to Dismiss and accompanied it with an Affidavit supporting the facts of my MTD.

The MTD was filed with the court on 3/20. However, a default judgment was granted on 4/7. I learned this by calling the court house to determine if there was any update in my case file since filing my MTD.

I'm entirely confused at how this was possible. I was under the impression that the MTD would stop the clock, so to speak, on the time to answer and that the judge would have to make a decision regarding such before any default judgments could be secured.

Furthermore, when speaking to the clerk she told :

1). I did not schedule a hearing for my Motion to Dismiss, so the judge would ignore it.

2). I needed to file an Answer, regardless. I was told that Answering before the judge ruled on the MTD may express submission to the new county and be detrimental to my case.

3). The Plaintiff had to file a Motion for Default Judgment, but I was not served with a copy of such motion.

I'm frustrated and not quite sure what course of action to take at this point. I appreciate any and all help the good members of this forum may be able to provide.

Sincerely,

QM07

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Call a NACA lawyer

That's what I figure I'll have to do. Is this typical of some states to require that I had scheduled a hearing for the Motion to Dismiss I filed?

I have another case in my current county in which I filed a Motion to Strike an affidavit as hearsay and almost 60-days has passed with no update to the motion. I'm thinking its time I review my rules of civil procedure.

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i'm going thru the same thing..sued in a county over 3 hours away

if the c.a. registered agent is in a different county, they can use the registered agents county to sue you in according to nc gs 1-79,which they will do in order to obtain default judgments

you filed a mtd for venue but didnt include an alternative motion to change venue

a judge wont rule on a motion if its not calendared for a hearing

he probably didnt even see it in the file or care even if he did see it

without a hearing he cant rule on it

you still had to answer the complaint

the mtd for venue should have been heard first to determine whether or not the court has jurisdiction to hear the rest of the case

you need to file a motion to set aside default for failure to answer and additionally file a motion to change venue to your county pursuant to 1-83" judicial fairness" and also include that the nc debt collection statutes require the plaintiff to sue the debtor in the county in which they reside regardless of where their registered agent is located

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also in order to get a default issued against you there is a process they have to go through

they have to file a notice of default first and then file an entry for default

this takes months

assuming your in bigboy court

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I would just file a motion to Vacate the Judgment based on improper venue and also state whatever other objections you have to their case.

All courts have their court procedures, you need to read them when filing, or it will bite you, just like it did this go around.

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I would just file a motion to Vacate the Judgment based on improper venue and also state whatever other objections you have to their case.

All courts have their court procedures, you need to read them when filing, or it will bite you, just like it did this go around.

You're right about this. I relied on others excellent help without learning enough on my own. I'm pretty frustrated with myself for not scheduling a hearing. To be honest, I don't even know how to go about this.

As per RA's recommendation last night I contacted a NACA lawyer. I'm supposed to be talking to him this afternoon/evening and will update you all on what he tells me incase this experience is useful to others.

In NC, every motion filed must have a copy of the motion served upon the opposing party. Wasn't the Plaintiff supposed to serve me with a copy of their motion for default judgment?

*Update: I just got off the phone with the NACA Lawyer -- He's very nice, but really left me wondering -- he doesn't seem to have paid attention to my initial communications with him where I outlined what happened and he seemed entirely unsure about vacating the judgment and/or counterclaims against the lawyer. He asked me what my goal was, whether or not I wanted to counterclaim the lawyer so I told him it was really depending on his opinion of the course of events. He basically kept telling me he wasn't sure in a very passive manner and said he'd have to look into it and call me back tomorrow. He also said he was unsure about vacating the judgment and whether or not the judge will accept the fact I no longer reside in the old county -- left me feeling not too confident. I was hoping he would want to be aggressive and tear their heads off. Instead, he said we may not want to file counterclaims against a firm that stands before the judge everyday*

Kind regards,

QM07

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sometimes it seems like lawyers play a game with you. just because he seemed tentative doesn't mean that the judgement cannot be vacated. improper venue, lack of jurisdiction are accepted reasons for vacating a judgement. Of course, look at your state ruels of civil procedure but there is the law of voids see below:

http://mysite.verizon.net/~vze2snju/void/detailsvoid.htm

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Thanks for the replies everyone. I'm not sure if this is of significant note or not. However, because I was afraid filing an actual Answer would submit to the improper venue, I accompanied my MTD with a notarized graduated sworn denial affidavit -- sort of indicates my willingness to answer coupled with the MTD and the second affidavit swearing to the facts surrounding the MTD.

I'll wait for the lawyer to call me back tomorrow. Not going to rely on him to help me though. Will have to start looking into exactly how to file a motion to vacate and motion to change venue.

Kind regards,

QM07

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Sometimes you need to shop around to find a lawyer that can really help you. Just like with doctors, sometimes you need to get a second or a third opinion.

I had the exact same issue a few years ago. A naca lawyer told me it would be cost prohibitive to vacate the judgment and basically that the judgment was my fault for not keeping my address up to date with the creditor. He gave me a speech about taking responsibility for my debts.

Other naca lawyers wouldn't take the case against this OC/CA attorney.

I ended up doing it myself. But later on, I found another naca lawyer who helped me make sure my settlement was good. I wish I met her earlier on.

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Thanks for the input. The thing that's upsetting about this is that not only did I keep my address current with the OC, the Attorney knew of my new address for over a year before they filed suit in the wrong county.

The lawyer hasn't called me back yet 3:25 pm EST, so I don't expect him to today anymore. I'll give him a call tomorrow, so as not to bother him this afternoon. He's pretty laid back and doesn't seem averse to helping me (atleast not from the first conversation). Atleast he was willing to research some case law as he said he intended to.

Kind regards,

QM07

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Just wanted to update you on the status of this situation:

Today I received a letter from the Plaintiff's attorney threatening an execution order directing the Sheriff to seize and sell any non-exempt assets. Enclosed is a copy of the default judgment. It should be of note that in NC, based on RCP, the Assistant Clerk of Superior Court can grant DJ's in cases where the amount is directly computable. In my case, the DJ was granted by the Clerk, and not the Judge.

After reviewing much of my RCP, I have a few questions regarding whether or not procedure was actually followed in my case.

Interestingly enough, part of the verbiage of the DJ states that it appeared to the court that no motion to dismiss was filed. This, of course, is inaccurate. And, the NACA lawyer has blown me off up to this point.

Sincerely,

QM07

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also in order to get a default issued against you there is a process they have to go through

they have to file a notice of default first and then file an entry for default

this takes months

assuming your in bigboy court

I didn't receive any notice of default. The NACA lawyer told me the Plaintiff's attorney is not required to serve me with a copy of this motion (although RCP says I must be served with a copy of all motions) and that its simply good practice to do so.

I'm pretty confused because NC RCP states that they must provide me notice of Entry of Default within 3 days of its entry.

The Plaintiff's lawyer just sent me entry of default today, which is a little under 60 days after its entry.

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You really need to get a lawyer to even the playfield. Try other naca lawyers, or get a referral from your state bar association and talk to someone about your case and your options. Get a consultation soon.

You are up against someone with dubious ethics and you already lost a battle on a technicality. Don't make the same mistake twice. GET A LAWYER!!!!

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You really need to get a lawyer to even the playfield. Try other naca lawyers, or get a referral from your state bar association and talk to someone about your case and your options. Get a consultation soon.

You are up against someone with dubious ethics and you already lost a battle on a technicality. Don't make the same mistake twice. GET A LAWYER!!!!

I appreciate your suggestion. NACA.net locates 4 FDCPA lawyers in my State, and 1 of them is already blowing me off. I would feel remiss not to prepare my own motion to vacate in the meantime.

I've spent a few hours today reviewing RCP and my original MTD. I feel like the Motion to Vacate would be based on the same exact grounds as my MTD, in very repetitive nature. I'm not really sure if I should rehash the MTD facts or what.... I'll try and post a rough version of it tonight.

Would I want to attach my original MTD and supporting affidavit as exhibits to the motion to vacate, or the fact they are already on file would be sufficient?

NCGS Rule 60(B) allows for vacation of judgment based on excusable neglect. I'm unsure as to whether or not my filing of the MTD without scheduling the hearing, and subsequently not filing an Answer based upon my fear of submission to improper venue but instead accompanying the MTD with a sworn denial should be the crux of my Motion to Vacate and base on this rule.

Can I base a Motion to Vacate on multiple rules, for ex:

1. Rule 60(B) - excusable negligence

2. Rule 12(B)(2) and 12(B)(5) - Improper service

3. Rule 12(B)(3) - Improper venue

4. And thus the Law of Voids

? -- or do I need to select one reason. I'm very unsure as to how to word my motion to vacate itself. I've found good information regarding supporting affidavits, so perhaps I'm not looking hard enough. Any help is genuinely appreciated as I'm feeling a bit overwhelmed today.

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Hello there. Yes you could bring up multiple reasons why the judgement shoud be vacated. You would not say the law of voids, however. You would say something like you have already written: improper service, improper venue, lack of jurisdiction etc. You might also bring up the MTD that you submitted and attach it as an exhibit. Seems like you are being denied due process and that you need help. Don't just try naca lawyers though. See if a local attorney who takes up civil matters can give you a consultation and consult PACER for information on how your docs should be formatted and their subject matter. I know this is tough and wish you the best of luck.

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the verbiage of the DJ states that it appeared to the court that no motion to dismiss was filed

It may have been misfiled by the court clerk. Ask the clerk about it. An attorney I know of had his response to a MTD misfiled. The judge dismissed the case, but later reversed himself after the error was pointed out.

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what makes you think its the wrong venue?

Because the FDCPA and NC General Assembly Debt Collection Statutes require a debt collector to file suit in the county of residence of the debtor. They knowingly filed suit in a county I have not lived in for years, despite my written communication of my current address, and their written acknowledgment of this update over 6 months prior to their filing suit.

Admin, and others have termed this improper venue. Perhaps I am mistaken on the terminology. I appreciate any clarification.

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It may have been misfiled by the court clerk. Ask the clerk about it. An attorney I know of had his response to a MTD misfiled. The judge dismissed the case, but later reversed himself after the error was pointed out.

Hello Merrybucks:

Thank you for joining my thread. This was the first question I asked the Clerk when I called. They informed me that my Motion to Dismiss was filed properly, but that it was my responsibility to schedule a hearing for the Motion.

They further went on to tell me that I was still required to file an Answer, despite my claim of lack of jurisdiction and filing the MTD. Because of this, the 30-day to answer time window expired and the Plaintiff moved for DJ only a week later. I had a 10-day time window to schedule my hearing before the 30-days was up to Answer. And, apparently, my sworn denial was not considered an answer.

Interestingly enough, the MTD itself is considered a defense as per NC RCP.

Also, to Rikkivs:

Thank you for posting as well. I'm interested to learn why you feel I should not mention the Law of Voids in my Motion to Vacate. NC RCP Rule 60(B)(4) states ", the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:" line item (4) under 60(B) states "If the Judgment is Void".

Based on a previous poster, and the defintion of a Void judgment, given the fact this court lacked jurisdiction, wouldn't that make this a Void judgment?

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Hello there:

Let me clarify, a bit; I am saying that you wouldn't say "LAW of VOIDS" in your answer or motion to dismiss. You would cite the RCP for your state and then invoke the law of voids just as you have stated, this judgement is void because of ---. I hope that is clearer. From what I gather, saying 'law of voids' is somewhat ambiguous, but stating 'this judgement is void because of thus and so' is a clearer statement.

And given the link I provided earlier, you could then specify that the judgement is void because of ab and c. This is more or less semantics!

See this page, it is more comprehensive and even cites case law regarding voidable judgements.

http://www.amatterofjustice.org/amoj/library/0008voidauthority.htm

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Hello there:

Let me clarify, a bit; I am saying that you wouldn't say "LAW of VOIDS" in your answer or motion to dismiss. You would cite the RCP for your state and then invoke the law of voids just as you have stated, this judgement is void because of ---. I hope that is clearer. From what I gather, saying 'law of voids' is somewhat ambiguous, but stating 'this judgement is void because of thus and so' is a clearer statement.

And given the link I provided earlier, you could then specify that the judgement is void because of ab and c. This is more or less semantics!

See this page, it is more comprehensive and even cites case law regarding voidable judgements.

http://www.amatterofjustice.org/amoj/library/0008voidauthority.htm

Hello Rikkivs:

I'm really sorry for misunderstanding you. I'm so tired, been at this all day and night. I thought you were saying that the law of voids didn't apply. I understand what you mean, and have actually worded my MTV in the fashion you've outlined. I'm going to post a VERY ROUGH copy in a second.

I need a lot of cleaning up to do, but wanted you to see the general ideas I'm raising and how I'm stating them for constructive criticism.

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STATE OF NORTH CAROLINA

IN THE GENERAL COURT OF JUSTICE

DISTRICT COURT DIVISION WAKE COUNTY

HSBC Bank Nevada, N.A. ) Case no: XXXXXX

Plaintiff, )

)

Vs. ) MOTION TO VACATE

) DEFAULT JUDGMENT

QM07 )

Defendant. )

Comes now the Defendant and states:

1. The Defendant was not personally served with a copy of the Summons and Complaint for this matter. The Defendant does not live in Wake County nor is that the Defendant’s usual place of abode.

2. The subject matter of this action is an alleged credit card balance Plaintiff claims is owed to them. This is an alleged consumer debt as the law defines it and the Fair Debt Collection Practices Act requires the Plaintiff to file suit in the Defendant’s home county of New Hanover pursuant to 15 USC 1692i.

3. Therefore, Wake County is improper venue for this action.

4. Because the Defendant was not properly served pursuant to Section 12(B)(2) and 12(B)(5) of the North Carolina Rules of Civil Procedure this judgment is void and should be vacated pursuant to Rule 60(B)(4) of the North Carolina Rules of Civil Procedure.

5. Additionally, because this Default Judgment was secured in a court lacking jurisdiction over the Defendant this judgment is Void and should be vacated pursuant to Rule 60(B)(4) as well.

6. The Defendant filed a Motion to Dismiss based upon improper venue (or lack of jurisdiction?) and improper service on March 20, 2009. The Defendant included copies of all previous communications between himself and the Plaintiff’s attorney through which Plaintiff’s attorney acknowledged the fact the Defendant resided in New Hanover County 7 months prior to negligently commencing civil action in Wake County. This motion also outlined the Plaintiff’s Attorney’s willful noncompliance with FDCPA 811(a)(2)(B) and Section 12(B)(3) of the North Carolina Rules of Civil Procedure.

7. Attached to this Motion please find the original Motion to Dismiss, supporting affidavit, and sworn denial of the allegations as “Exhibit A”, “Exhibit B”, and “Exhibit C”

8. Attached to this Motion please find the Express Mail Receipt and Tracking Information confirming the filing of this Motion to Dismiss on March 20, 2009 as “Exhibit D” and “Exhibit E”

9. The Defendant accompanied this Motion to Dismiss with a sworn denial of the erroneous allegations made by the Plaintiff in attempt to exhibit willingness to Answer without displaying submission to the improper venue in Wake County.

10. Due to the Defendant’s misunderstanding of the Rules of Civil Procedure as a Pro Se Defendant, he failed to schedule a hearing for the Motion to Dismiss.

11. The Plaintiff’s Attorney moved for Default Judgment on April 7, 2009 despite knowledge of the aforementioned facts of their noncompliance with federal and state law as well as the Plaintiff’s motion on these grounds. In bad faith, the Plaintiff’s Attorney did not serve the Defendant with a copy of their Motion for Default Judgment. This contributed to the Defendant being unaware of the fact the Clerk of Superior Court does not schedule hearings and one must be initiated by the Defendant.

12. Had the Plaintiff’s Attorney acted in good faith and practice and served the Defendant with a copy of this Motion for Default Judgment, Defendant would have been alerted to the procedural mistake and taken action to bring the facts of the Motion to Dismiss to the Court.

13. The Defendant was not served with a copy of the Entry for Default Judgment within 3-days of its entry pursuant to Rule 54 of Civil Procedure.

WHEREFORE, Defendant asks the Court for an order vacating the default judgment pursuant to Rules 12(B)(2) and 12(B)(5) based on improper venue as well as Rule 12(B)(3) regarding improper service. Defendant also asks the court to consider Rule 60(B) and find the Defendant’s neglect in scheduling a hearing for the Motion to Dismiss excusable based upon the facts at hand.

Dated this ________ day of May, 2009

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Hello again:

We are all learning on this thread and I apologize for being so vague initially:) Anyway, your motion looks nice. I do believe motions should have accompanying points and authorities. You can find how mtd's are formatted by checking out PACER, scribD and/or your local court website. But ultimately, your state rules of civil procedure and rules of court will explain the information that must be contained in a motion, how it must be formatted (page numbering, margins, fonts etc) and so forth.

Best wishes. I think citing relevant cases with voided judgements in your jurisdiction or the state of NC will be great to add. You did a good job to include the applicable rules of civil procedure. Now you will need to add some RECENT and RELEVANT cases. I say those boldy because I have read a few tentative rulings in various jurisdictions where judges chided pro se litigants for citing old cases.

Oh, on #1, cite information on NC process serving laws to elaborate and explain how you were not properly served. That way there is no ambiguity. See this link http://www.serve-now.com/resources/process-serving-laws/North-Carolina

BEST WISHES:)

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