This is Thomas Kerner's Typepad Profile.
Join Typepad and start following Thomas Kerner's activity
Join Now!
Already a member? Sign In
Thomas Kerner
Recent Activity
The rules for jurisdiction in small claims court are different from those in district or superior courts, so you must make sure to ignore anything you might know, or have heard about, where a small claims case has to be filed. The long and short of it is that you must file the suit in the county where the defendant lives. N.C. Gen. Stats. §7A-213. What If I Am Suing Several Different People or Companies? If you are suing more than one defendant and they live in different counties, you can file your case in any county where one of... Continue reading
North Carolina Small Claims Court costs are currently $96.00 for filing the complaint, plus an additional $30.00 for each defendant you need to serve with a summons and complaint. Please note however, that these costs do rise from time to time, so these figures are accurate as of the date of this post (June 20, 2013) only. You can always visit http://www.nccourts.org/Courts/Trial/Costs/Default.asp for the latest information on North Carolina civil court costs -- which includes Small Claims Court. Note also that you are not required under the rules of civil procedure to use the sheriff for service -- you may... Continue reading
Kerner Law Firm is proud to announce a new service available to anyone with questions about North Carolina Small Claims Court. For $49.00, you can speak with an attorney at our office for up to twenty minutes about your upcoming case. This is a service to answer your questions about North Carolina small claims court - it is not the same as hiring an attorney to actually represent you in court. If you have any questions you would like answered about the process, how to make your case, or anything related to your small claims case, call us at 910-509-7241.... Continue reading
Enforcing out of state judgments in North Carolina is typically a straightforward matter. The North Carolina Uniform Enforcement of Foreign Judgments Act permits a judgment from another state to be recorded and enforced the same as if it had originally been entered in a North Carolina court, so long as the Act's procedures are correctly followed. At first blush, the Act appears to allow a Defendant to raise any defense to enforcement of the foreign judgment that it would have had in North Carolina court. Indeed, this is how the trial court read Section 1C-1703(C) in DOCRX, Inc. v. EMI... Continue reading
Freezing the assets of a defendant after getting a judgment is a critical component of any successful judgment collection. North Carolina Gen. Stats. 1`-358 permits a judgment creditor (the plaintiff) to obtain a court order to forbid any "transfer or other disposition of, or any interference with, the property of the judgment debtor not exempt from execution." The broad language of this section is designed to capture all non-exempt property (that is, property that the Defendant is not able exempt from execution under NC Gen Stat 1C-1601) and preserve it so that the Plaintiff may have the Sheriff seize it... Continue reading
North Carolina corporations cannot be pierced in supplemental proceedings, the NC Court of Appeals recently held. Piercing the corporate veil in post judgment proceedings is prohibited in cases where the shareholder defendants were not named in pleadings or served individually with a Summons. In Travelers Indemnity v. Triple S Marketing Group (July, 2011), the Court of Appeals held that when a shareholder is not served with a summons or complaint, North Carolina's supplemental proceedings statutes are not broadly worded enough to confer subject matter jurisdiction over the issue of whether that shareholder can be found personally liable for the debts... Continue reading
The legal interest rate in North Carolina is 8% pursuant to N.C. Gen. Stat. § 24-1. However, that rate can be exceeded by agreement. A contract providing an 18% interest rate on a defaulted account balance has recently been upheld by the Court of Appeals. In J.M. Parker & Sons,... Continue reading
Posted Jan 11, 2011 at Raleigh Business Law Attorney
In North Carolina, quantum meruit can be used in place of a contract as a theory of recovery for work done but not paid for. In the recently decided case of Ron Medlin Construction v. Harris, the North Carolina Supreme Court had to wade through a tangle of issues to... Continue reading
Posted Jan 10, 2011 at Raleigh Business Law Attorney
14
In North Carolina, a contract to sell real estate must be signed by the seller. This is so due to the Statute of Frauds, which, generally speaking, requires contracts for the sale of real property to be in writing and signed by the parties involved. Recently, the North Carolina Supreme... Continue reading
Posted Jan 10, 2011 at Raleigh Business Law Attorney
In North Carolina, a debt owed by a corporation "survives" a merger and continues to be owed by the successor corporation. N.C.G.S. § 55-11-06(a)(3). This rule applies whether a debt is simply outstanding, or whether the debt has been reduced to a judgment. Often, shareholders of corporations try to avoid... Continue reading
Posted Sep 21, 2010 at Raleigh Business Law Attorney
An oft litigated issue in business disputes among owners, shareholders or partners is whether the defendant(s) violated the North Carolina Unfair and Deceptive Trade Practices Act. As the Court of Appeals recently reiterated, the answer is no. In White v. Thompson (decided by the State Supreme Court in April), the... Continue reading
Posted Aug 18, 2010 at Raleigh Business Law Attorney
When a North Carolina Limited Liability Company is dissolved, any claims against it will be barred, as long as the LLC follows the correct procedures for barring those claims, provided for in the NC Limited Liability Company Act. The process is primarily governed by N.C. Gen. Stats. §§ 57C-6-07 and... Continue reading
Posted Jun 22, 2010 at Raleigh Business Law Attorney
Under North Carolina contract law, a contract that lacks clarity can have severe consequences. While most people might take that as an obvious truth, what they may not realize is the specific ways in which North Carolina penalizes ambiguity in a contract. For example, if your contract says one thing,... Continue reading
Posted Jun 15, 2010 at Raleigh Business Law Attorney
The NC Court of Appeals recently upheld an award of attorney's fees against a debt buyer who purchased a default judgment, then sought to enforce the judgment, only to discover later that the debtor had been the victim of identity theft and didn't actually owe the debt. In Credigy Receivables, Inc. v. Whittington (COA 09-465, March 2, 2010) an identify thief had stolen the identity of Ms. Whittington, and opened a credit card account with Fleet Bank. That account went into default, and the debt was sold to First Select Corp. which then filed suit - in 1999 - and... Continue reading
A lot of people starting judgment enforcement businesses ask me if they are legal in North Carolina. Unfortunately, I can't necessarily tell them that they are. On one hand, I have yet to find a statute or case that specifically prohibits it. But then again, I haven't researched the question in great depth. What I have found is that other states are quite clear in their opposition to judgment collection businesses. These businesses are often started as "home-based" businesses, and they sound like a great idea. The owner starts the business and gets people who hold court judgments to "assign"... Continue reading
Thomas Kerner is now following The Typepad Team
Mar 15, 2010
Occasionally I run across a potential client (or even an attorney) who believes that merely filing an appeal will prevent a judgment creditor from being able to collect a judgment. However, in North Carolina, there is no automatic stay of judgment enforcement proceedings simply because an appeal has been filed. Rule 62(d) of the North Carolina Rules of Civil Procedure makes this clear: the appealing party "may" seek a stay of execution on the judgment, but it is not automatically given. In order to obtain a stay against judgment enforcement, a defendant must file a bond with the court ensuring... Continue reading
In North Carolina Small Claims Court, a party is not required to file a counterclaim, even if it has one. So for example, if you are suing a company for a breach of warranty, and you still owe money on your purchase, that company does not have to counterclaim against you for the balance in a small claims action. It can wait to file a separate suit. North Carolina General Statutes section 7A-219 provides that "failure by a defendant to file a counterclaim in a small claims action assigned to a magistrate, or failure by a defendant to appeal a... Continue reading
Currently, the maximum dollar amount for a claim in North Carolina Small Claims Court is $5,000. This amount is computed "without regard to interest and costs." See N.C. Gen. Stat. ss 7A-210 and 7A-243. So in theory, you can ask for more than $5,000.00, as long as the $5,000.00 is comprised solely of the principal (as in the case of a loan or other debt) or the compensatory and consequential damages. In other words, you should be able to claim for $5,000.00 of principal, plus any interest (for example, your contract might provide for 8% annual interest on a delinquent... Continue reading
If you are going to Small Claims Court in Wilmington (New Hanover county), here are a few basic things you should know: (1) Cases typically go to trial less than 30 days from the date they are filed. So if you are filing a small claims case yourself, make sure you'll be ready to go to court very soon! (2) The losing party may appeal the decision. If that happens, the case will be heard in District Court. Before that can happen, however, the case must first go to arbitration. The arbitration takes place in a special hearing room on... Continue reading
44
Today I ran across this article, which discusses whether a judgment creditor can record a judgment lien with the Coast Guard in order to proceed against the boat or other vessel of a judgment debtor. The short answer seems to be no. But that said, a boat may be seized and sold to satisfy a judgment, just as any other type of personal property can be. Continue reading
One of the most frequent questions I am asked about judgment enforcement is whether or not the federal Fair Debt Collection Practices Act (FDCPA) applies to someone collecting a debt owed to them - without using an attorney or debt collector. And the answer to that question is "no." But a question that hardly anybody thinks to ask is: Does the North Carolina Debt Collection Act (NCDCA) apply to me if I am collecting a debt owed to me? And the answer to that is: yes it does. If the debt is "consumer debt" that is. In 2000, the North... Continue reading
Even after a judgment has been rendered by a court, then entered by the clerk of court, the judgment debtor still has options for getting it nullified. Most people are aware that an appeal can be taken directly to the Court of Appeals. This generally must be done within 30 days of entry of the judgment. What is less well-known, however, is that the debtor also has the option of filing a motion in the trial court to have the judgment set aside. This is done under Rule 60 of the North Carolina Rules of Civil Procedure. (There are other... Continue reading
A judgment may be "renewed" so to speak, by filing a Complaint prior to the expiration of the 10 year effect of the original judgment. That Complaint must be filed and served on the Defendant(s)/judgment debtor(s) in the same manner as the original Complaint in the case. Technically, it does not "renew" the old judgment. Rather, it is a new judgment based upon the existing liability that extends from the original judgment. This procedure can only be done once. See N.C.G.S. s 1-47(1). Continue reading
The primary ways to obtain a judgment in North Carolina are as follows: (1) a jury verdict, (2) a judge's order following a bench trial, (3) a default judgment (which is also entered by a judge's order), (4) a Confession of Judgment, or (5) a Consent Judgment. There are also motions to confirm arbitration awards (giving the same force and effect to an arbitration award as a judgment entered originally in a court). Once a judgment is entered by the Clerk of Court, the party owing the money is called the "Judgment Debtor." The winning party - the one to... Continue reading