Legal Question in Credit and Debt Law in North Carolina

how to appeal a judgement I feel was filed an executed in error.

Asked on 3/20/13, 9:02 am

3 Answers from Attorneys

Kenneth Love Ken Love Law

It depends on what you mean by executed and what court issued it. The process to appeal small claims is different than for District or Superior Court.

Also, by execution do you mean that the creditor has started trying to collect or do you mean the entry of the judgment. We need this information to begin to formulate an answer.

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Answered on 3/20/13, 9:04 am

You generally have 30 days after the judgment was entered to appeal. If you are way beyond that then an appeal is not for you. Appeals are costly and time consuming affairs (I do them) and are very unlikely to be successful absent clear cut grounds.

If the judgment was entered more than 30 days ago but less than one year ago, your remedy is to attack the judgment by filing a Rule 60 motion to open. To prevail on a Rule 60 motion you have to show good cause, that you promptly filed the motion upon learning of the judgment, that you have a good reason for not answering the lawsuit and that you have a meritorious defense to the lawsuit. If you do not have these grounds you are not likely to succeed.

You state not that the judgment was improper but that it was improperly executed. In that case, neither an appeal or Rule 60 motion will help. You would file some other kind of request for relief - since I don't know the facts I am not sure what that would be. However, what you claim is not legally possible.

To execute on a judgment against an individual you would first have to be served with documents called a notice of right to have exemptions designated and motion to claim exempt property. Did you receive these documents? If so were they filled out properly and timely filed?

Why do you believe the judgment was "executed in error"? Were you ever served with the lawsuit papers? If so what did you do? If you are claiming that none of the lawsuit or exemption papers were sent to you, then you need to go to the court in the county where the lawsuit was filed and get a complete copy of the court file. This includes the summons, including the return of service completed by the sheriff, the complaint and any attachments, the request for default/summary judgment, the entry of judgment, the notice of rights (again include the return of service) and motion to claim exempt property as well as the writ of execution.

I would then take the file to a consumer attorney or an attorney specializing in whatever kind of lawsuit was filed. If its credit card defense, then you would need a lawyer who specializes in this. The attorney would then review the file to see where things stand.

My gut reaction (which could change depending on the evidence/documents) is that you ignored the lawsuit and notice of rights that were timely served and that there was no execution in error. The sheriff then seized an asset of yours or levied on a bank account even if jointly held with someone else because you failed to include it on the exemptions or failed to file the exemptions. If that is the case, the execution was not in error.

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Answered on 3/20/13, 10:40 am
Lynn Coleman Attorney-Mediator

I agree with the other attorneys. Can you provide a little more information concerning what you mean by "executed in error"?

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Answered on 3/20/13, 11:23 am

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