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Ask Law Educator, Esq. Your Own Question
Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 117437
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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Boy do I have a lot on my plate. Hope you have been well. I

Customer Question

Boy do I have a lot on my plate. Hope you have been well. I have a hearing on Monday for Motion to Dismiss my Complaint in Union County for sun Trust. The court already dismissed my complaint for 21st Mortgage corporation. It was not fair and it was not
nice. I thought I had a pretty good motion before the court but the judge ignored it like he always does. The basis for my Motion to dismiss was that counsel is testifying for a witness not in appearance. HIs Motion was not supported by affidavit, deposition
or interrogatories to support his averment. Counsel also never filed a notice of appearance in the case. If you remember I lost my property with 21st Mortgage because the Judge dismissed my appeal because I did not file a written Notice of Appeal. Eventhough
I filed a calendar notice and paid the appeal bond and gave a verbal notice of appeal at the bond hearing. I have to now appeal the dismissal of the 21st Mortgage complaint based on lack of subject matter jurisdiction. No Notice of appearance and no documents
to support averment. Need help and comment on preparing. I have NCGS Rule 5(d)(4) Filing- eh following papers shall be filed with the court, either fefore service or within five days after service: (4) Notice of Appearance Can you find any other NC law. I
think I remember one in the General Rules but cant find it now about attorney must immediately file a Notice of Appearance when taking a case. Do I have grounds for dismissal and entry of default since the response to the complaint was made by an attorney
that did not file a notice of appearance within five days. And the response is not supported by affidavit , deposition or interrogatories. Trenzy vs Pagliaro
Submitted: 2 years ago.
Category: Legal
Expert:  Law Educator, Esq. replied 2 years ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
That is the law in the Rule 5, those are the laws that have to be followed. There are other rules about notice of appearance, but they are local rules set by each judicial district court.
Arguing the lack of witness and lack of authentication of any documents and hearsay pursuant to the rules of evidence would be the best arguments. The attorney not filing an entry of appearance is a minor issue and one that will not win the case. You can include that in your appeal, but focus on lack of evidence and no witness testimony and no authentication of any evidence contrary to the rules of evidence.
Customer: replied 2 years ago.
So no Notice of Appearance is a minor infraction but No Notice of Written Appeal is major.I lost based on No Notice of Written AppealThe rules do not carry equal weight?Boy this does not look good.I tried to use Trenzy v Pagliaro in the last hearing for 21st Mortgage and included the fact that there was also no Notice of Appearance but lost anyway.
Expert:  Law Educator, Esq. replied 2 years ago.
Thank you for your reply.
Yes, notice of appearance is a minor violation, but a notice of appeal is a mandatory requirement to proceed to appeal.
No, not all rules are weighed equally as far as importance to changing the outcome of a decision. The courts look at whether or not compliance with a particular rule would have changed the outcome and then there are some procedural rules that must be followed.
Customer: replied 2 years ago.
This is what I am dealing with from one attorney. There are no affidavits depositions or interrogatories.They of course fail to address the consent decree of Sun Trust Mortgage in their response which was signed after the federal complaint and the order to allow foreclosure.Do you see any argument I can make here?
Expert:  Law Educator, Esq. replied 2 years ago.
Thank you for your reply.
Your argument is based on the consent decree AND the making of conclusory statements of fact and law without providing any evidentiary support for their claims. You have to attack them on not supporting any of their contentions with any evidence that their statements are conclusory self serving statements and thus they have not met any burden of proof of their claims as required by law.
I would never suggest that you keep going to an appeal on your own, as an appeal is going to require you to do your own in depth case law research to fight them and you really should look for a local attorney to step in for the appeal purposes to make sure you give yourself the best chance possible.