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Civil Process NC BLET 2019
Terms in this set (130)
an action prosecuted by the State as a party, against a person charged with a public offense, for the punishment thereof, or an action prosecuted by the State, at the instance of an individual to prevent an apprehended crime against his person or property.
what are the primary functions of civil process
preserving status quo
providing remedies for parties (judgement)
enforcing decisions of the courts
3 levels of trial courts
small claims (magistrates)
cost of superior court
cost of district court
cost of small claims (magistrates)
which two orders do not require a filing fee?
Civil No-Contact (50-C)
who has the responsibility of issuing a summons?
Clerk of court
--Assistant clerk and deputy clerks are also allowed
time limit for civil summons
60 days from the date it is issued, 30 days to answer
Civil summons are issued for what?
breach of contract
family matters (divorce, child support, custody)
Who hears civil summons cases
District and superior court judges
this summons is issued when a plaintiff files a complaint to begin an ordinary civil action in district or superior court
this summons is issued when a plaintiff files a complaint to be heard in small claims court by a magistrate
Magistrate summons must be issued how many days prior to the trial date?
5 days prior to the hearing date
magistrate summons are issued for what?
civil cases for $10,000 or less
recovery/possession of personal property
recovery/possession of rental property
special proceeding is heard initially by who?
special proceedings hear what type of cases?
adjudication of incompetence
proceedings to partition land
administration of decedent's estate with or without a will
in a special proceedings case, the plaintiff is called what?
in a special proceedings case the defendant is called what?
when should a special proceedings summons and a partition proceedings summons be served?
60 days from date issued but plaintiff can demand it be served immediately
partition proceeding summons
used when multiple parties own an undivided piece of land and want to split it up.
what is the main difference between partition proceedings summons and special proceeding summons?
the defendant has 30 days from served to answer instead of 10
what is a foreclosure?
the holder of a mortgage or deed of trust against real property asks the court to order sale of that property to regain title over it or to satisfy any outstanding amount owing on the mortgage or deed of trust.
juvenile summons (undisciplined/delinquent)
issued when a juvenile proceeding is initiated against a juvenile for delinquency (which means the juvenile is alleged to have committed an act that would be a crime is he or she were an adult)
when should a juvenile summons (undisciplined/delinquent) be served?
at least 5 days prior to the hearing date. if it is unserved after 30 days it must be returned to the clerk
juvenile summons (abused/neglected/dependent)
this summons orders the alleged abuser/parent to appear at a hearing at a specified time, date, and located to determine if the juvenile is abused or neglected, what disposition is to be made, and orders the parent to appear for determination of whether the parent should receive counseling, treatment, or should have an attorney appointed to represent them in the custody proceeding
when should a juvenile summons (abused/neglected/dependent) be issued?
at least 5 days before the scheduled hearing date. if it is unserved after 60 days it must be returned to the clerk
legal process that commands a person to appear in court at the appointed time, subject to a penalty for failure to do so.
what are the two types of subpoenas for
testify and produce evidence
what information does a evidence subpoena tell the witness?
name of the court
title of the case
number of the civil action
party at whose instance the evidence is to be produced
specific items needed
date, time, and location
when should you serve a subpoena?
before the scheduled hearing date
what does chapter 95 do?
allows an employer to act on behalf of an employee who has been threatened at their place of employment to apply for a civil no-contact order covering the workplace
who can serve civil processes?
the sheriff of the county where service is to be made or that sheriff's deputies.
an individual human being
an individual owns and operates a business that is not incorporated and in which he or she has no partners, owns all the assets, owes all the liabilities, and operates in his or her own personal capacity.
- the business is not a separate legal entity, and the owner is the defendant in the lawsuit.
natural persons under disabilities
minors or people who lacks the mental competence to manage his or her affairs.
for the purpose of civil process, the term, agency of the state includes what?
every agency, institution, board, commission, bureau, department, division, council, members of council of state, or officer of the state government or the state of NC
units of local government
counties, cities, towns, villages, other municipal corporations or political subdivisions of the state, county, and city boards of education and other local public districts.
a legal entity separate and distinct from its shareholders
how must corporations be sued?
it must sue, and be sued, in its own name
an association of two or more persons to carry on as co-owners of a business for profit
a voluntary group of persons formed by mutual consent for the purpose of promoting a common enterprise or pursuing a common goal or object and it is not a legal entity separate from the persons who compose it.
how do you serve a natural person?
- in person
- leaving a copy of the complaint and summons at the defendant's dwelling or usual place of abode with a person of suitable age and discretion at the dwelling
- delivering a copy to an agent authorized
when can a process be served?
any time, day or night and on any day of the week
what constitutes as a person of suitable age and discretion when leaving a process with a person residing with the defendant?
- they do not need to be family members
- they must be mentally competent
- suitable age depends on circumstance. they must be or age and maturity to understand what is going on.
- residence with the defendant need not be permanent
a person who is designated to transact business for another
the attorney-in-fact's authority is controlled by what?
the language in the power of attorney
how do you serve a natural person under disability?
serve the person under disability in the same way you would serve a natural person AND serve a second copy to a guardian (minor) or general guardian (incompetent)
guardian of the estate
guardian appointed solely for the purpose of managing the property, estate, and business affairs of a ward.
guardian of the person
guardian appointed solely for the purpose of performing duties relating to the care, custody, and control of the ward.
guardian of both the estate and the person
guardian of the person is NOT authorized to accept what?
service of process for the defendant because only a general guardian is authorized to accept service of process for incompetent defendants.
how do you serve the state?
personally delivering a copy of the summons and complaint to the Attorney General or to a deputy or assistant attorney general
how do you serve an agency of the state?
personally delivering a copy of the summons and complaint to the process agent appointed by the agency to receive process
how do you serve a city, town, or village?
personally delivering a copy of the complaint and summons to the mayor, city manager, or city clerk
how do you serve a county?
personally delivering a copy of the complaint and summons to the county manager, the chairman or any member of the board of commissioners or to the clerk of the board.
how do you serve a political subdivision
personally delivering a copy of the complaint and summons on an officer or director of the subdivision or by delivering it to an agent or attorney-in-fact.
how do you serve a corporation?
- delivering a copy of the complaint and summons to an officer, director, or managing agent
- leaving a copy of the complaint and summons in the officer of an officer, director, or managing agent with someone who is apparently in charge
- delivering a copy with an agent authorized by appointment
how do you serve a general or limited partnership?
- delivering the complaint and summons to any general partner, or to any attorney-in-fact/agent authorized.
- leaving a copy in the officer of a general partner, attorney-in-fact, or agent who is apparently in charge of the office
a deputy may not serve a partnership by doing what?
serving or leaving copies with a limited partner. (only leave copies with general partners)
how do you serve an unincorporated partnership?
same as a corporation.
- leaving copies with a director, officer, managing agent, or member of the governing body
- leaving copies of the officer of the officer, director, etc. with a person apparently in charge
- leaving copies with an agent authorized
how do you serve a special proceedings summons and a partition proceedings summons?
the same way you would serve a civil summons
who do you serve a notice of hearing - power of sale foreclosure to?
- any person to whom the mortgage or deed of trust directs notice be sent
- any person obligated to repay the debt secured by the mortgage or deed of trust
- every record owner of the real estate being foreclosed upon
when do you serve a notice of hearing - foreclosure?
10 days before scheduled hearing date
20 days before scheduled hearing date if posted in a conspicuous manner upon the property.
how do you serve a juvenile summons (undisciplined/delinquent)
deliver personally to the juvenile AND their guardian no less than 5 days prior
- they must be served separately. (1 summons for the juvenile, 1 summons for the guardian)
how do you serve a juvenile summons (abused, neglected, dependent)
can be served in any manner provided for service of a civil summons no less than 5 days prior to the scheduled date.
-along with the juvenile summons, a juvenile petition and other court documents must be served.
how do you serve a magistrates summons summary ejectment?
- Mail (no later than the end of the next business day)
- Phone (within 5 days)
- Attempt In Person contact (within 5 days of summons being issues and 2 days prior to hearing)
- Posting at the dwelling/property
who can serve a subpoena?
the sheriff, deputy, or any other person over age 18 and who is not a party being served.
how do you serve a subpoena to testify?
- telephone (you still need to set up time and place to deliver subpoena to party)
- mailing by certified or registered mail
how do you serve a subpoena to produce evidence?
can only serve in person
done for the benefit of one party and without notice to the other party
a DVPO, civil no-contact order, and workplace violence prevention process will be served when and how?
as soon as possible
if an ex parte DPVO has been ordered, a hearing must be held on the order within how many days?
10 days after issuance of the order or within 7 days after service of process on the responding party.
if a petitioner has made a motion for emergency relief on a DVPO, a hearing on the motion must be held within how many days?
5 days after notice or 5 days after service of process in the responding party
mandatory arrest provisions
a LEO SHALL arrest and take into custody a person who they have probable cause to believe has violated provisions of a DVPO such as:
- threatening, abusing, or following
- harassing the other party in person, by phone, visiting their home/workplace, or by other means
- cruelly treating or abusing animals owned, possessed, kept, or held as a pet by either party or minor child in the household.
a 50-C must be served how?
in person and with the summons, complaint, and temporary no-contact order.
a workplace violence prevention process must be served how?
what does it mean to serve a civil process?
a sheriff must conduct a "due search" for the person to be served. the sheriff is not negligent in serving process when the sheriff is not informed by the plaintiff where the person to be served can be found and when he or she makes a diligent search to locate the person but is unable to do so.
if a defendant refuses to accept a process after being told what it is, what should the officer do?
serve the process anyway.
- deputies may drop it down at their feet or do some other act that constitutes delivery.
-the defendant does not have a choice to not get served.
what questions should an officer's return answer?
who, where, why, what, how, and when
what is an officer's return?
a sworn statement to the court outlining an officers performance of the duties on this process. (the officers evidence)
what should be stated in the return?
only facts, not conclusions
if a deputy is unable to serve or locate the party, what should be stated in the return?
state what attempts were made to locate and that the deputy was unable to serve
what happens upon finding that the sheriff, personally or through lawful deputies, has willfully failed or neglected to perform any duty or has submitted a false return?
the sheriff shall be subject to damages of $500 paid to the person aggrieved
what information should be listed in the return if the defendant is a natural person and was served personally?
name of defendant, date of service, note that defendant was served personally and the place of service
if the defendant is served by leaving a copy with someone of suitable age and mental state, what should be included in the return?
date of service, place, name of person with whom it was left, and that it was left at the dwelling with a person of suitable age/discretion who also resides at the defendant's dwelling
what should be included when making a return on a corporation
show the corporation as the defendant, date, place, name, and title of person to whom the process is delivered
what is the general rule when computing the time for service?
date that the required act is performed (date its issues, date of service) is not counted, however, the last day of the time period is included, unless it is a saturday, sunday, or holiday.
a party has until what time to act, unless the act can only be done during business hours (such as filing with clerk)
midnight on the last day to act
if the period allows less than 7 days, weekends and holidays are _____________
if the period allows more than 7 days, weekends and holidays are _____________
what counts as a legal holiday?
a day when the courthouse is closed for transaction
weekends and legal holidays are included in the timelines for what types of summons?
civil summons, special proceedings summons, partition proceedings summons, notice of foreclosure
weekends and legal holidays are not included in the timelines for what types of summons?
magistrate summons, summary ejectments, juvenile summons (undisciplined/delinquent /abused/neglected/dependent)
temporary remedy ordered by the court before final judgment and pending an action's dispostion, intended to maintain the status quo between parties by protecting a person's safety or preserving disputed property
what are the 4 basic prejudgment remedies?
claim and delivery
may only be issued in actions where an attachment has been issued.
court order authorizing the seizure of a debtor's real or personal property sufficient in amount to satisfy a judgement if the creditor ultimately prevails in the lawsuit.
-does not give party right to possession of any of the property seized
purpose of attachment
assure the creditor that any judgment obtained will be able to be satisfied by the sale of the attached property
purpose of garnishment
discover and subject to attachment tangible personal property of the defendant not in his possession but in the possession of another person and any indebtedness or other intangible personal property belonging to the defendant.
a garnishment is essentially a warning to who?
a third person who has possession of property owned by a defendant or who owes the defendant a debt not to pay the money or deliver the property to the defendant or otherwise dispose of it.
claim and delivery
involves two different processes: Notice of Hearing and Order of Seizure
- possession given by this remedy is temporary; a proceeding does not determine final title to the property. an order for seizure may be obtained at any time before final judgment for the recovery of possession of personal property not real property
purpose of claim and delivery
claim and immediate delivery of certain specified personal property
temporary remedy whose purpose is to prevent the parties from harming one another during the litigation.
temporary restraining orders (TROs)
sheriffs may be asked to serve for two situations:
-with the initial complaint and civil summons
- by itself, after the defendant has already been served with the complaint and summons
TROs only last how long?
10 days from the date they are entered.
if a motion for a preliminary injunction is not made at the end of 10 days, what happens?
TROs will be dissolved by the court
post judgment remedies - executions
remedies which are available only after a decision or final judgement has been reached in a civil action.
what is the most common post-judgment remedy called?
executions against the property are just called what and do what?
used for satisfaction of a money judgment
what happens in an execution against property?
sheriff is to seize personal property to sell to satisfy the outstanding judgment.
what happens if sufficient personal property cannot be found
the sheriff is directed to execute on the debtor's real property
executions against the person
civil orders for arrest
why are executions against the person ordered?
issued when there is reason to believe the judgment debtor is about to flee the jurisdiction to avoid paying the judgment or has concealed assets to defraud creditors
how are executions against the person performed?
they are executed in the manner provided for a misdemeanor arrest warrant and are valid for 90 days since they are executions
executions for delivery of specific property
(aka...Writs of Possession or Real Property and Writs of Possession for Personal Property)
Requires the Sheriff to seize property from a judgment debtor (defendant) & give it back to the plaintiff (creditor)
what is the second most frequently issued type of execution?
executions for delivery of specific property
when the defendant has filed for bankruptcy, what should an deputy do?
the deputy should not attempt to serve the summons.
who should the deputy or holder of judgment contact to confirm the filing status of a debtor who has filed bankruptcy?
when dealing with in-state child custody orders, the sheriff may only take physical custody when?
IF the order specifically directs the sheriff or law enforcement to take the child and deliver custody AND the custody order is accompanied by a warrant directing law enforcement to take immediate physical custody of child subject to a child custody order
when dealing with out-of-state child custody orders, what must be accompanied by what?
whether temporary or permanent, this order must be accompanied with a warrant directing law enforcement to take immediate physical custody of child subject to a child custody order before law enforcement is authorized to take physical custody of the child
The child custody order must be signed by who?
a north carolina district court judge.
a child custody order signed by a district court judge is effective where?
anywhere in the state of NC. (orders from other states are not valid)
repossessions in NC are only legal if
they can be completed without a breach of peace
in repossessions, breach of the peace is broader than the criminal offense and includes
affrays, fights, assaults, use of profane and abusive language towards another on a public street or in the presence of others, or a person needlessly shouting and making loud noises
law enforcement's only role on the scene of a repossession is to do what?
if the occupant of a hotel/motel is a residential tenant, the occupant can only be removed how?
through summary ejectment procedures.
when a defendant answers a summons, who must they write the answer to?
plaintiff, an agent, the clerk
what are the 6 types of relationships for a 50-B
-current or former spouses
-opposite sex not married but are living together
-opposite sex current or former dating relationship
-parents, children, grandparents, grandchildren
-have a child in common
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