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CalAttorney2
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Experience:  Civil litigation attorney for individuals and businesses.
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I have a judgment against me in nc. I tried to deal with

Customer Question

I have a judgment against me in nc. I tried to deal with them a pay off. they denied all I offered. I missed the court date of my lien. Of course they won. Now I filed a exemption paper. Not sure what to do. scared of them.
Submitted: 1 year ago.
Category: Legal
Expert:  CalAttorney2 replied 1 year ago.

If the judgment was recently entered, you can file a motion to have the judgment "vacated" (set aside), there is no guarantee the court will grant your motion, but it will give you another chance at litigating the matter. See: http://benchbook.sog.unc.edu/sites/benchbook.sog.unc.edu/files/pdf/Default%20Judgment%20(Rule%20of%20Civil%20Procedure%2055).pdf, excerpt below in italics).

When trying to settle a debt, creditors generally prefer lump sums over payment plans. They are often willing to accept an amount less than the full debt (the trade off is that they get a quick payment and don't have to worry about ongoing collection costs or administration). If you do not have the ability to offer a lump sum for something the creditor will accept (some will accept a small portion, while others want close to the full amount), you can try a payment plan, these are less satisfactory to the creditor (especially if they have a lien on your property already), but if you are willing to offer something with a reasonable chance to get the creditor a large amount of their debt back, you are likely to get them to accept it.

Whenever working with a creditor, make sure that you keep your communications in writing (if you speak to someone by phone, promptly send a confirmation letter to summarize your conversation), as this will help to ensure that there is no confusion later on, and you will be able to enforce your settlement against any future collection efforts.

Setting Aside Entry of Default. A party who has been defaulted for failure to timely respond may believe the failure is justifiable or should otherwise be excused. Upon motion, the trial court may set aside an entry of default when there is “’good cause shown.” Rule 55(d). A. “Good Cause” Determination. The court does not assess the merits of the action when deciding whether the defendant has shown good cause: “[T]he burden is on the defendant, as the defaulting party, not to refute the allegations of plaintiff's complaint, nor to show the existence of factual issues as in summary judgment, but to show good cause why he should be allowed to file answer to plaintiff's complaint.” Bell v. Martin, 299 N.C. 715, 721 (1980) (emphasis added). Whether a defaulting party has shown “good cause” for relief from entry of default “depends on the facts and circumstances of each particular case.” Old Salem Foreign Car Service, Inc. v. Webb, 159 N.C. App. 93, 97 (2003). Because the law disfavors default, “any doubt should be resolved in favor of setting aside an entry of default so that the case may be decided on its merits.” Automotive Equip. Distr., Inc. v. Petroleum Equip. & Serv., Inc., 87 N.C. App. 606, 608 (1987) (citations omitted). The good cause standard is not as stringent as the standard for setting aside default judgment (see subsection B below). Bailey v. Gooding, 60 N.C. App. 459, 462 (1983); see also Beard v. Pembaur, 68 N.C. App. 52, 56 (1984) (court erred to the extent it required “excusable neglect” on motion to set aside entry of default). “[A]n inadvertence which is not strictly excusable may constitute good cause, particularly where the plaintiff can suffer no harm from the short delay involved in the default and grave injustice may be done to the defendant. Lewis v. Hope, __ N.C. App. __, 736 S.E.2d 214, 216 (2012) (quotation omitted); Vares v. Vares, 154 N.C. App. 83, 90 (2002). B. Standard of Review. “A motion pursuant to this rule to set aside an entry of default is addressed to the sound discretion of the court.” Britt v. Georgia–Pacific Corp., 46 N.C. App. 107, 108 (1980); Security Credit Leasing, Inc. v. D.J.'s of Salisbury, Inc., 140 N.C. App. 521, 528 (2000). The trial court's determination Rule 55 -- 12 will not be disturbed on appeal unless a clear abuse of discretion is shown. Old Salem, 159 N.C. App. at 97; Silverman v. Tate, 61 N.C. App. 670, 674 (1983). The Court of Appeals has stated that, when a trial court refuses to set aside entry of default, it will evaluate abuse of discretion by considering: “(1) was defendant diligent in pursuit of th[e] matter; (2) did plaintiff suffer any harm by virtue of the delay; and (3) would defendant suffer a grave injustice by being unable to defend the action.” First Citizens Bank & Trust Co. v. Cannon, 138 N.C. App. 153, 157 (2000) (quotation omitted). C. Examples 1. Good Cause Shown a. City of Wilson Redevelopment Comm. v. Boykin, 193 N.C. App. 20, 34 (2008). The trial court did not abuse its discretion in finding good cause to set aside entry of default against one of several defendants in a condemnation action where the defendant was a 97-year-old nursing home resident who had given power of attorney to one of the other defendants. b. Atkins v. Mortenson, 183 N.C. App. 625, 629 (2007). The trial court set aside entry of default against physician who, upon receiving the summons and complaint, immediately faxed it to his insurance carrier per his company policy, but the carrier did not receive it. Plaintiff obtained entry of default less than 60 days after filing the complaint. The physician soon thereafter was notified of the motion for default judgment and immediately informed his carrier, whose attorney then filed an answer and moved to set aside entry of default. The court of appeals affirmed the granting of the motion on grounds that the physician clearly had a meritorious defense (summary judgment was later granted in his favor), and the plaintiff suffered no prejudice because “the lapse of time from the point when plaintiff filed the complaint to when defendant filed his answer was not so great as to cause harm to plaintiff if the entry of default were set aside.” c. Vares v. Vares, 154 N.C. App. 83, 91 (2002). It was not error to find good cause where defendant’s insurance carrier was handling the litigation and failed to answer on time. The “delay in answering plaintiff’s complaint was primarily due to negligence by [her] insurance company” and “the delay…was relatively short and caused no prejudice to plaintiff.” See also Brown v. Lifford, 136 N.C. App. 379, 384–85 (2000) (affirming a finding of good cause where defendant relied on the representations of his insurance carrier). Rule 55 -- 13 d. Moore v. F. Douglas Biddy Constr., Inc., 161 N.C. App. 87, 89-90 (2003). The trial court did not abuse its discretion in setting aside entry of default where, on the same day default was entered, defendant’s newly-retained counsel informed plaintiff’s counsel that an answer was forthcoming, and plaintiffs suffered no prejudice because they knew from a prior round of litigation the defenses that defendant would likely raise. e. Miller v. Miller, 24 N.C. App. 319, 320 (1974). The trial court did not abuse its discretion in setting aside default against landowner defendants who were sued for cutting down a neighbor’s hedges. Defendants submitted evidence that they met with the Town of Garner after receiving the complaint, and the Town advised them that it would handle the lawsuit against them because the hedge grew on a Town easement. 2. Good Cause Not Shown a. Lewis v. Hope, __ N.C. App. __, 736 S.E.2d 214, 216-17 (2012). The trial court did not abuse its discretion in refusing to set aside entry of default where defendant cited his correspondence with plaintiff’s counsel as evidence of “his intent to address the matter.” b. Luke v. Omega Consulting Grp, LC, 194 N.C. App. 745, 749 (2009). Defendant did not give sufficient attention to the matter to warrant a finding of good cause where, as soon as defendant found out about the suit, it consulted with its out-of-state attorneys and reviewed its records regarding plaintiff, but did not respond due to “the advice of its…attorneys as well as its conclusion that plaintiff was not owed any further compensation.” c. Old Salem Foreign Car Service, Inc. v. Webb, 159 N.C. App. 93, 98 (2003). Defendant business did not show good cause for not responding to the complaint where the defendant’s representative acknowledged receiving the papers but did not take action because the company had never been sued before (instead, it usually “did the suing”) and she was not sure what was supposed to happen. d. Cabe v. Worley, 140 N.C. App. 250, 252–53 (2000) (internal quotation and citation omitted). Trial court did not err in refusing to find good cause where “[d]efendant's only action…was to deliver the suit papers to his insurance company. After delivery, he took no further action to inquire into the progress of the case.” The court stated that, “f a defendant gives the claim papers to Rule 55 -- 14 his insurer and continues to actively monitor the case, this Court has been amendable to allowing claims to be litigated. Where a defendant gives the claim papers to the insurance company and does not inquire further, however, we have been far less receptive to a contention that an entry of default was inappropriate.” e. First Citizens Bank & Trust Co. v. Cannon, 138 N.C. App. 153, 158 (2000). The trial court did not abuse its discretion in refusing to set aside entry of default where defendant filed the motion to set aside default more than six months after entry of default and cited ignorance of the legal process and reliance on defenses raised by her co-defendant former husband related to property they jointly owned. f. Howell v. Halliburton, 22 N.C. App. 40, 42 (1974). Defendant did not show good cause to set aside default where it merely forwarded the summons and complaint to its insurance carrier and took no further action until it learned that default had been entered. V. Setting Aside Default Judgment. “f a judgment by default has been entered, the judge may set it aside in accordance with Rule 60(b).” Rule 55(d). Rule 60(b) of the Rules of Civil Procedure (Appendix B) allows a trial court to “relieve a party or his legal representative from a final judgment, order, or proceeding” for a number of specified reasons based in equity. Relief is available for the following bases: (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; [or] (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. N.C. R. Civ. P. 60(b)(1)–(6). While any of the six bases may be argued, the vast bulk of the cases center on arguments of excusable neglect (60(b)(1)); void judgments (60(b)(4)); and the general category that allows relief for “any other reason” (60(b)(6)).

Customer: replied 1 year ago.
I haven't contacted then since the judgement.. I didn't show up for it. I didn't realize the importance
Expert:  CalAttorney2 replied 1 year ago.

I'm not sure what to tell you at this point.

The judgment is pretty critical, they are going to oppose your motion (you may be successful in getting it set aside, but you are going to have to come up with something better than simply "I didn't show up" - Please understand, I don't mean any disrespect, but I am trying to help with understanding the burden that you must meet to get a second shot at this thing with the court, they are looking for "excusable neglect" - if you review the link above it is the "Bench Book" which is what the judges use for their guide on granting or denying these motions and has examples of what is appropriate and inappropriate grounds to grant a motion to set aside.

If you simply cannot pay, and you have other debts which make your overall financial condition such that you may want to consider bankruptcy, that will terminate your obligation to pay the debt, but please speak with a bankruptcy attorney (it is possible to file for bankruptcy protection on your own, but it isn't a very good idea).

Customer: replied 1 year ago.
I can not consider bankruptiy that's what started my problems in the first place.
Expert:  CalAttorney2 replied 1 year ago.

You can try a motion to set aside.

You can try settling with them.

You can ignore the matter and wait for them to try to collect against you (wage garnishment, bank levy, and asset collection - you can assert "exemptions" against these, but they will protect only a portion of your income and assets - see: http://www.avvo.com/legal-guides/ugc/what-property-is-exempt-from-seizure-after-a-judgment-in-north-carolina-1)

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