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Can a case be challenged for irregularities if the initial…

Can a case be challenged...
Can a case be challenged for irregularities if the initial summons has in existent address in a wrong county, because of this served 18 days before the expiration of the judgment with a modified address in the defendant county?
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Answered in 18 minutes by:
3/24/2018
Pheobe Clark
Pheobe Clark, Lawyer
Category: Employment Law
Satisfied Customers: 154
Experience: Attorney at Pheobe A Clark Attorney at Law
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The short answer to this question is yes. A lawsuit can’t be challenged in a motion to dismiss when the complaint does not allege the proper location of the defendant, when the case is filed in the wrong county, when the lawsuit has been improperly served usually within 120 days of filing the complaint. If anyone is trying to state that a default judgment has been entered because of the parties failure to respond, these reasons Also can be used to defeat a motion for default judgment.
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A lawsuit CAN be challenged
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Basically if any irregularities unfairly give another side an advantage, then you can challenge the irregularities.I believe that this answers your question regarding this matter?If I have provided you adequate guidance on the subject, please reward me with a positive rating of five stars so that I may get credit for the session. Thanks!
Pheobe Clark
Pheobe Clark, Lawyer
Category: Employment Law
Satisfied Customers: 154
Experience: Attorney at Pheobe A Clark Attorney at Law
Verified
Pheobe Clark and 87 other Employment Law Specialists are ready to help you
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Customer reply replied 3 months ago
Can a defendant challenge the irregularities of a lawsuit ( summon irregularities) by filing a new complaint? If so, do you need to file a complaint and summon to serve ?
This is uncommon. A defendant’s goal is to have the complaint dismissed. The defendant doesn’t want to file a new lawsuit. The defendant wants to prepare an answer to the complaint and also file a motion to dismiss the complaint due to irregularities.
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That’s the only way to challenge the current lawsuit. Now if you want to also sue the plaintiffs for something relating to the allegations in plaintiffs complaint, you can file an answer to the complaint and counter claim.
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Customer reply replied 3 months ago
The state is NC. Suppose that the judgment is dated May, 2017 and the complaint back in 2016, can the plaintiff still able to prepare an answer to the complaints and counterclaims at this time ? Are both actions ( answer to complaint and counterclaim ) at once?
this is a different scenario. If a complaint has been filed and there is already an actual JUDGMENT against you, then the lawsuit has ended & case closed. The ways to challenge a judgment are to appeal to a court of appeals stating that the lower court didn’t follow procedures for proper service. The other option is to file a motion to set aside the judgment (Rule 60 of civil procedure).
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For example, in the recently decided case of Sharyn's Jewelers, LLC v IPayment, Inc., et al., 674 S.E. 2d 732 (April 2009), the North Carolina Court of Appeals found "extraordinary circumstances" to justify allowing one of the Defendants to have its Rule 60 motion considered even though the motion had not been filed until 17 months after the judgment had been entered. The circumstances were that the appealing defendant (Vericomm) had not received notice of the judgment against it for 17 months, and that the judgment awarded relief to the Plaintiff that exceeded what was sought in the Plaintiff's complaint. Specifically, the trial court had erroneously entered judgments against Vericomm on causes of action that had been pled only against the other defendants, but not Vericomm. As such, the judgment was "irregular" and could therefore be vacated in part, to the extent of the irregularities.
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if you have a judgment against you already, you would NOT file an Answer & Counterclaim to the Complaint. You would file an appeal of the judgment to the court of appeals OR you would make a motion to set aside the judgment due to improper service of the complaint & improper or untimely notice of the proceedings.
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If I have provided you adequate guidance on this subject please reward me with a positive rating of five stars so that I can receive credit for this session
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Thanks!!
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Customer reply replied 3 months ago
The defendant tried to dismiss because he hasn’t been served but the plaintiff used an old summon from a wrong county to prove that the service was proper.
Ok. So if the judgment has been issued, one should file a motion to set aside the judgment for the reason you just gave: improper service because the plaintiff used an old summon from a wrong county to prove that the service was proper.
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Customer reply replied 3 months ago
You have been so helpful. Are you in NC? How can I have your service for advice?
Customer reply replied 3 months ago
I filed a motion under rule 60 lately thinking that the filing date was dec 16, 2016 which date is on the system when I called the clerk office and has been denied because the plaintiff said the real date is May 2016 ( date where he filed in the wrong county ).
I am not located in NC. But the NC Bar Association should have a lawyer referral service which would be able to refer you to a local attorney licensed in your state who does appellate work. This attorney should be able to handle both appeals and motions to to set aside judgment.
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Customer reply replied 3 months ago
This is a renewal civil judgment ( old credit card ). Is there any other motion besides rule 60 ?
Customer reply replied 3 months ago
Also my appeal deadline just passed( received the entry order 15 days before deadline).
In my past motion I didn’t mention this summon from the wrong county because I didn’t think that had used it to start his renewal.
I have 1 month left in order to file for violations ( a lawyer wouldn’t have enough time ). Is it possible to challenge this renewal summary judgment because there were irregularities in the filing since the beginning starting with a summon originated from a wrong county? I am a minority at disadvantage, I will do it myself since there are few days left ( summary judgment date was April, 2017).
There are 30 days to appeal a judgment, but a motion to set aside a judgment (even a renewal judgment) does NOT typically have a deadline. If there is a deadline, the basis for filing out of time would be that your newly discovered evidence of the filing in the wrong county.
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No there is no other option other than a motion to set aside or an appeal. These are the only “post judgment” options available.
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If I have provided you adequate assistance on this matter, please reward me with a positive rating of 5 stars so that I can get credit for this session! Thanks!!
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Customer reply replied 3 months ago
My deadline to appeal a Motion Order dismissal for a civil judgment under rule 60 has passed ( was 30 days to appeal ).
I found out that there are irregularities in the original filing of the complaint ( wrong county, non existent address, address mismatch in affidavit , and plaintiff reported on the complaint didn’t prove that he had right over the case).
These irregularities are new evidences that Were not raised yet. I understand now that since this is a post judgment the only options are an appeal or motion to set aside.
I already tried to move for dismissal under rule 60 but been denied just because the date I considered as filing date of the case is different from what he claimed is in fact the date. I came out to understand what he did and how he managed to get a summary judgment after the judgment expiration.
I thought the case started fresh from my county and the clerk gave me a filing date which is in fact a filing date on motion which I didn’t know and I built my case on it.
The plaintiff claims considered the complaint filing date in the wrong county which in fact is and now I can understand clearly the path he took in order to avoid the SOL( of course by asking expert like you ). I understand now that for him, doing a motion to dismiss without prejudice won’t be good so he proceeded without regards ***** ***** a change of venue despite my request before him to move for dismissal with prejudice.
Now, I would like to be advised on the 2 options left.
Is it possible, based on new discoveries to file a motion under rule 60 ( d) in order to set aside the judgment ?
Appealing the judgment could be better but harder to represent myself based on the rules of appealing.
You may file a motion to set aside judgment based on new evidence. This would be the best way to have the case reconsidered and reopened.
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Appealling would not be a good idea as this requires that a judge committed an error. Not there was newly discovered evidence.
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I believed I have advised you on the 2 options. If I have provided adequate guidance on this subject, please reward me with a positive rating of 5 stars so that I may get credit for this session and close it out.
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Customer reply replied 3 months ago
Thanks.
No problem. And good luck to you on getting the case reopened based on the newly obtained evidence.
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