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  1. #1
    Winelovers2 is offline Junior Member
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    Jul 2005
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    Writ of Execution for Judgement

    What is the name of your state? North Carolina

    Ok....I have been separated/divorced from my ex husband for 9 years. We had a home improvement loan for $4500 that we took out in 1994-95 (can't remember exactly). When we divorced he kept the house....he filed bankruptcy in 97 and this loan was included in it. However, I didn't file....after all these years....I got a notice of judgement and now a writ of execution to satisfy this loan....This is from a 3rd party agency that evidently bought the loan. It hasn't been on my credit report in some time.

    Honestly, I didn't think they could do anything to me but now I'm worried...the only things I have in my name with my current husband is the house....and my car is in my name.

    After doing research on the internet about the Statute of Limitations in North Carolina it doesn't seem like they could do anything this many years later. The SOL in NC for this type of loan is 3 years. So, here are my questions:

    1) How did they get the judgement in the 1st place if the SOL has expired?
    2) Can they seize my assets?
    3) If not, how can I have this judgment reversed? What do I do?

    This is the last thing haunting me from my divorce and the only thing left to clear up my credit but I don't have $6000 to pay this.

    Please tell me what to do!
    Thanks!
    Missy
  2. #2
    Debt Guy is offline Senior Member
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    1) How did they get the judgement in the 1st place if the SOL has expired?

    A. You probably failed to respond to the summons. The SOL is only an affirmative defense and you must raise the defense in court in order to have the benefit of the expired SOL.

    2) Can they seize my assets?

    A. Within the limits of state law, yes.

    3) If not, how can I have this judgment reversed? What do I do?

    A. Your first step should be to visit the courthouse and ask to see the case file or judgment file. Read the file to see what it says about service of process. It will say that you were served in person, by mail, etc. etc. If the service was bogus and you can prove it was bogus, you can file a motion to vacate the judgment. For example, it says notice was served in person on a 5'2" female but you are a 6' male. That does not jive and the judge would likely agree. You just need to see what it says about service and then analyze it for flaws.

    If service was made by mail to an old address and you never got the summons, then you will need to research state law to see whether or not this is good service under state law.

    The court clerk can probably show you a sample of a motion to vacate.
  3. #3
    Winelovers2 is offline Junior Member
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    Jul 2005
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    Ok...I did some digging & got copies from the clerk of court....the summons was sent by UPS and my mother signed for it so I'm screwed...After much searching in the house, I found it buried in a drawer still unopened from UPS. You have to know the background on my mother to understand this: She had a brain tumor & has permanent brain damage along with schizophrenia...needless to say she is forbidden from checking the mail for this reason but when she thinks the UPS man has something for her???

    At any rate, no use crying over spilled milk....that's something I have to accept**************not much I can do about that now....so what is next?

    I contacted the attorney that got the judgment and they are unable to produce any paperwork at all regarding the loan....nothing!(The original creditor>Commercial Credit>bought by CitiFinancial>charged it off in 98 and now is owned by Asset Management & Recovery>now, its with an attorney for collections).Somebody has to have this paperwork don't they?

    They got the judgment because it was default....and never went in front of the judge....the clerk did it....no backup documentation at all with it except for my mother's signature from UPS....As far as the SOL....the last payment made on this loan was 1997 so I don't know?

    Is there anything I can do at all? Or, is this pretty much it for me?

    Thanks for the info!
  4. #4
    Debt Guy is offline Senior Member
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    Does not sound like much you can do.

    The complaint was served properly, I think. In most states, any adult in the home can accept service. If you did not live with your mother, you might have a fighting chance but you will need to do research on state law to see what constitutes good service. If you think the service was bad, then you can file a motion to vacate the judgment.

    Once the judgment is granted, all the underlying loan paperwork is moot. Means nothing. The fact they can't find any is unfortunate but of no legal import.

    This is a long shot but you might try to argue that your mother had diminished capacity and thus was not "competent" to accept service.

    Try to make a deal with the attorney to just pay it off?

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