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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 88730
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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A summary Judgment was obtained and renewed by the Plaintiff

Customer Question

A summary Judgment was obtained and renewed by the Plaintiff for which the presiding Judge favored Summary Judgment a second time on 7-08-2008. The defendant appealed because of Insufficient Delivery. The Plaintiff mailed the summons and complaint via Fed Ex and they were received by a person that resided within the household. In that it was an electronic signature, an affidavit was obtained via the Plaintiff, the Judge stated that it was OK despite the NC statutes stating that the summons and complaint should have been delivered to the addressess by a County Agent and the receiving person must have been 21 yrs of age and reside within the household.The Plaintiff obtained the Judgment but failed to have delivered it to the defendant within (5) days from issuance also. May the defendant file a motion to vacate the judgment given the circumstances provided? Caselaw has been located to validate the incorrect decision rendered by the Judge. Thank you, Cindy


 


Note: I failed to mention that the Summary Judgment was appealed on 7-11-2008 by the NC Court of Appeals (Raleigh,NC) for which the case was not processed. I recall receiving a letter but unable to locate. The defendant recalls something about "non-prejudice" which was electronically  submitted to the District Court where one currently resides? In the mean time, the Plaintiff filed a Motion to Dismiss Appeal in District Court in the county where defendant resides. The defendant was advised by Administrative personnel that Appeal Cases were not heard in District Court. They needed to be sent to Raleigh, NC (Misleading information).The defendant filed for an Extension of Time in order to comply with the Appelate11 Rule response, which was not answered by the Clerk of Courts nor the Plaintiff. The defendant did not receive a court hearing date either.Due to multiple deaths and other distractions in life, the defendant did not think a bout the matter much until a Writ of Execution arrived metered stamped (5-20-2013) at one's residential address discovered in advertisements on or about 6-02-2013. It was dated: 4-26-2013.The Writ of Possession was not served; however, the notice of sale was delivered on the day that the family's vehicle was taken (7-10-2011).


Thank you,


Cindy


 


The defendant found that the Plaintiff had (2) active file numbers for the Summary Judgment. After haven gone to view the records, information provided to the Judge and parties at the hearing were no where to be found (disappeared).A writ to Stay was filed once haven received the Writ of Execution by mail. The defendant was able to schedule a hearing with the Judge that rendered the Summary Judgment to the Plaintiff on 9-5-2013. The vehicle taken on 7-10-2013 held vested interest by a family member but was not reflected on the title. It was a gft to the family from parent and is essential for the transporting of a yound adult family member to and from weekly doctor appointments.


 


Thank you,


Cindy

Submitted: 1 year ago.
Category: Legal
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking.

If you have proof that the judge and the other party did not follow the statute regarding proper service and did not provide proper notice that is grounds to vacate a judgment and you need to file a motion to vacate. If the motion is denied, then you can file an appeal of the denial within 30 days of the motion being denied and can get it reviewed by the appeals court.



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