Legal Question in Civil Litigation in North Carolina

Complaint

I was served a summins in which the plantiff alleged that I intended to fraudualently over draft a check for $12,000. This was suppose to happen in 2004, yet no legal charges ever ever filed against me.

Are any of the following options available to me:

1. Motion to dismiss based on no charges ever being filed, and lack of evidence.

2. Motion to strike allegation of intent to defraud on basis of it being scandulous.

3. A countersuit based on contributory negligence

based on the bank carelessly cashing the check?


Asked on 3/20/08, 1:51 pm

1 Answer from Attorneys

John Kirby Law Offices of John M. Kirby

Re: Complaint

You probably need to consult with an attorney and provide him or her with the documents and with more information. The absence of criminal charges are not relevant. As for the lack of evidence, you will have to see what evidence they have; certainly if they don't have any evidence, they can't prevail, and at some point you could move for "summary judgment" on that basis. You can move to strike allegations of the Complaint, but in this case, those allegations seem pertinent (even if they are unfounded). As for your last inquiry (a "countersuit" based on contributory negligence), that question does not make sense; further, it does not seem that this theory would avail you, if the Plaintiff can prove the fraud. You also want to consider the statute of limitations, which is generally 3 years for breach of contract, but is longer for fraud. Again, you may want to consult with an attorney with more information.

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Answered on 3/20/08, 3:21 pm


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