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Discover card is suing me for my soon to be ex-wife credit card, now want my assets.


loyola73
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Discover card is suing me for my soon to be ex-wife credit card, now want my assets. I didn’t know she had a discover card.

I was served in Oct 2010 but the summons doesn't have a court date. It states to send them a reply or else they would apply to the court for the money awed. A judgment was entered against me ($5800) in May 2011 I just found out today because I moved out of town. They are pursuing a exempt property motion in my new county of residence. In north Carolina a husband doesn’t have to be responsible for the spouse debt. The original summons doesn't have all the information. How can I let the court know that I wasn't given a chance to appear in court?

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------------------------------------------My Civil Summons--------------------------------------------------------------------

A civil action has been served against you

You are notified to appear and answer the complainant of the plaintiff as follows:

1. Serve a copy of your written answer to the complaint upon the plaintiff or plaintiffs’ attorney with in thirty days after you have been served. You may serve your answers by delivering a copy to the plaintiff or by mailing it to the plaintiffs last known address

2. File the original of the written answer with the clerk of superior court of the county named above

If you fail to answer the complaint, the plaintiff will apply to the court for the relief demanded in the complaint.

--------------------------------------The North Carolina States Summons must contain--------------

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.

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I was served papers in person.

Soon after being served I sent a letter to the creditor but forgot to file it at the court.

Then i lost my job and lost track of the whole thing... I was traveling for job interviews and was barely home. Then I checked my credit and a judgement appeared on it.

The thing is that I tried to go to court but there was no date of court apperance.

Is this enough grounds to Quash the summons based on the North Carolina law. (No court date on the summons. See above thread)?

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Once you file an answer, the court dates get set from there...if you didn't answer, the plaintiff gets a default judgment if you don't answer in 20-30 days after service.

You may want to talk to a lawyer about vacating the judgment or other options that you might have, since my knowledge of NC law is very limited.

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I was served papers in person.

Game Over.

I forgot, I did not know, I lost my job, I did not (insert anything here), won't work. You were, by your own admission, legally served.

You don't get court dates with a civil summons. It's not like a speeding ticket where they hand you the ticket and it has a date, time, and location of the court if you want to fight the citation.

They sue, you answer, then generally speaking the parties start discovery. Then one of the parties will ask for a hearing or a court date (pre-trial).

Other times after a few months the court might set a pre-trial to see where the parties are on the case.

When you did not answer the lawsuit (for whatever reason, does not matter), that means you lost by default, basically forfit and game over.

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Not necessarily game over. You say you received court papers but they had no date of appearance on them. If you do indeed have those papers then that is what you need to present as proof.

You need to approach this in one of two ways.

First you could file for lack of service. It is required on those papers from the court that a date for your appearance be entered. Without a date for your appearance the court should not have even served you by law.

Next you could attack the judgment itself. Every jurisdiction has in its rules of trial procedure, the means to challenge a judgments standing.

You have a lot of work to do if you want to fight this. But with out examining the court docket sheet and seeing how the case transpired I can not tell you what you can do at this point in time.

If you can post what the docket sheet says and the dates of such we can help you more.

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Question: how was the card issued? Was it issued as a joint account or did she apply for the card in her own name while you were married?

If the card was issued jointly, they can come after each of you or come after either one of you - even if you are divorced. It doesn't matter what your divorce papers say since the creditor is not a party to your divorce. However, if you have an arrangement in writing that your ex wife is responsible for the account then you can sue your ex wife for recovery if you have to pay the debt to the creditor. These type of arrangements can be found in the PSA (property settlement agreement). If you haven't addressed the debt you incurred during the course of the marriage, make sure you do before the final decree is issued.

I mentioned all of this because, even if you manage to quash this service you need to come up with a permanent plan to figure out what to do with the debt. They aren't going to back off forever if you quash the service.

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It is required on those papers from the court that a date for your appearance be entered. Without a date for your appearance the court should not have even served you by law.

Yeah if your court requires a court date on the papers then you would have a little wiggle room I guess. I've never had a court date ever on a civil documents.

Criminal (yes traffic tickets are criminal) you dang sure better have a specific date, time, and location. However, I've never heard or seen of civil paperwork having a court appearance, just telling you an answer date.

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Discover card is suing me for my soon to be ex-wife credit card, now want my assets. I didn’t know she had a discover card.

I was served in Oct 2010 but the summons doesn't have a court date. It states to send them a reply or else they would apply to the court for the money awed. A judgment was entered against me ($5800) in May 2011 I just found out today because I moved out of town. They are pursuing a exempt property motion in my new county of residence. In north Carolina a husband doesn’t have to be responsible for the spouse debt. The original summons doesn't have all the information. How can I let the court know that I wasn't given a chance to appear in court?

Is your state a "community property state" ? If it is, you may have a fight on your hands, if it's not a community property state, they can't touch your personal assets if your name is not on the contract, at least an attorney told me this...but the law may vary from state to state in this regard. I admit I'm not well versed in that law.

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Yeah if your court requires a court date on the papers then you would have a little wiggle room I guess. I've never had a court date ever on a civil documents.

Criminal (yes traffic tickets are criminal) you dang sure better have a specific date, time, and location. However, I've never heard or seen of civil paperwork having a court appearance, just telling you an answer date.

I've seen a couple of Tenn summons which clearly show the date of appearance and further stating that "you have 30 days to answer''..however according to the court clerk in my county, it's not required to file your answer with the court...just the attorney for the plaintiff.

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Is your state a "community property state" ? If it is, you may have a fight on your hands, if it's not a community property state, they can't touch your personal assets if your name is not on the contract, at least an attorney told me this...but the law may vary from state to state in this regard. I admit I'm not well versed in that law.

North Carolina is NOT a Community Property State. If your name is not on the Note agreeing to be liable for the debt then it simply is not your debt.Your Motion to Vacate would state that the summons was deficient on its face (lacking a date certain with which to file an Appearance, although the "20 days after Service would usually be sufficient for this) and that you have meritorious defenses that have not been heard.

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I have never, ever received a summons be it civil or not that does not have an initial court date on it. Once a complaint is filed the court assigns a date of appearance to the complaint, stamps it with the court seal and hands you enough copies to serve all parties involved in the case.

I would go as far as to say the papers they served were used on a fraudulent basis in as much to elude you from knowing when the actual court date was.

What you need to do is get a copy of the docket sheet and post what it says here so we can examine it.

I would suspect they used a bit of fraud to get a default judgement. But a default judgment is not the end. Most courts rules of trial procedure have language that allows a person to attack the judgement itself as to whether or not it is a valid judgment.

Find you state rules of trial procedure, look under filing a claim and process of serving a complaint. In those rules it will explain the process the court takes when a claim is filed, it will tell you, in legal binding terms, what the court does when a claim is filed.

Article 2.

Commencement of Action; Service of Process, Pleadings, Motions, and Orders.

Rule 3. Commencement of action.

(a) A civil action is commenced by filing a complaint with the court. The clerk shall enter the date of filing on the original complaint, and such entry shall be prima facie evidence of the date of filing.

A civil action may also be commenced by the issuance of a summons when

(1) A person makes application to the court stating the nature and purpose of his action and requesting permission to file his complaint within 20 days andYou need to find out by looking at the docket sheet if this happened in the allotted 20 days.

(2) The court makes an order stating the nature and purpose of the action and granting the requested permission.

The summons and the court's order shall be served in accordance with the provisions of Rule 4. When the complaint is filed it shall be served in accordance with the provisions of Rule 4 or by registered mail if the plaintiff so elects. If the complaint is not filed within the period specified in the

clerk's order, the action shall abate. (B) The clerk shall maintain as prescribed by the Administrative Office of the Courts a separate index of all medical malpractice actions, as defined in G.S. 90‑21.11. Upon the commencement of a medical malpractice action, the clerk shall provide a current copy of the index to the senior regular resident judge of the district in which the action is pending. (1967, c. 954, s. 1; 1987, c. 859, s. 2.)

North Carolina General Assembly - General Statutes - Chapter 1A: Rules of Civil Procedure.

See rule 55 Default

(d) Setting aside default. – For good cause shown the court may set aside an entry of default, and, if a judgment by default has been entered, the judge may set it aside in accordance with Rule 60(B)

Rule 60. Relief from judgment or order.

(a) Clerical mistakes. – Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the judge at any time on his own initiative or on the motion of any party and after such notice, if any, as the judge orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate division, and thereafter while the appeal is pending may be so corrected with leave of the appellate division.

(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.

© 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.)

Edited by BTO429
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