Articles in the Small Claims Law category - Page 5 of 7

North Carolina magistrates are not required to be lawyers, and most of them aren’t. Add to that the fact that most small claims litigants are not represented by attorneys and the stage is set for a challenging (and often entertaining) series of events that may not fit neatly into those rigid categories the law is so fond of. Make no mistake: this system is deliberate in design and for the most part it works quite well. Small claims court offers citizens a quick, inexpensive way to resolve their disputes, and appeals from small claims judgments by unhappy litigants are few. Errors—by litigants and by magistrates—are an expected part of this system, and the remedies for those errors are, also, deliberate in design. This, too, works well most of the time, but sometimes things can get a little confusing. I hope this post will help sort out that confusion.

READ POST "Small Claims Court: What’s the Fix When Things Go Wrong? (April 19, 2017)"

Established law in North Carolina, and throughout the country, provides that parties to a lawsuit may represent themselves or be represented by an attorney. Representation by anyone else is generally prohibited as the unauthorized practice of law. GS 84-4. In small claims court, there are two exceptions to this general rule, and the specifics about how, whether, and when those exceptions apply are a frequent source of questions that appear in my email in-box. Let’s see if we can find a calm, clear space in that jungle!

READ POST "Who Can Appear on Behalf of a Party in Small Claims Court? (March 17, 2017)"

Many small claims magistrates hold court for years before encountering an action to renew a judgment, but when they do, they are often uncertain about it – and for good […]

The North Carolina Court of Appeals issued an opinion last week that may – or may not–have some implications for residential leases in North Carolina. At the very least, RME Management, LLC, v. Chapel H.O.M. Associates, LLC (filed 1/17/2017) makes me think I should give a longer answer when a small claims magistrate asks me a particular question about summary ejectment law. But more on that later. First, let’s take a look at RME.

North Carolina small claims magistrates across the state report that most summary ejectment actions are served by posting, and that’s not surprising. GS 42-29, the statute establishing the procedure for service of process in such cases, establishes a very narrow window within which the officer must operate: the officer must visit the defendant’s place of abode to attempt personal service within five days of the summons being issued, but at least two days prior to the court date. For the most part this brief span of time does not permit an officer to make a second effort at personal service. Consequently, in those instances in which no one opens the door to accept service, the officer is instructed by the statute to post the complaint and summons to a conspicuous place on the rental premises. This method of service — variously referred to as service by posting or nail and mail — has long been a legally permissible alternative means of service in certain circumstances. In this blog post, I’m going to explore whether and how this works in a situation in which the rental agreement involves something other than a residential setting.

Service of process in small claims cases, like many other small claims procedures, requires reference to North Carolina’s Rules of Civil Procedure (GS 1A-1) as modified by GS Ch. 7A, […]

On Tuesday the NC Court of Appeals handed down an opinion in Crawford v. Nawrath, a Mecklenburg County case involving the calculation of damages for violation of the Residential Rental Agreement Act (RRAA). The Crawford opinion is unpublished and thus does not constitute controlling legal authority but nevertheless is interesting and informative, both procedurally and substantively.

In a prior post, I talked about Eastern Carolina Regional Housing Authority v. Lofton, 767 S.E.2d 63 (2014), a North Carolina Court of Appeals case requiring a landlord seeking summary ejectment based on breach of a lease condition to prove as an essential element of the case “that summarily ejecting [the] defendant would not be unconscionable.” Last week the North Carolina Supreme Court disagreed in a long-awaited opinion, making clear that “the equitable defense of unconscionability is not a consideration in summary ejectment proceedings.” In so doing, the Supreme Court finally put the issue to rest, reconciling inconsistent statements of the law in several Court of Appeals cases, including Lincoln Terrace Associates v. Kelly, Charlotte Housing Authority v. Fleming, 123 N.C. App. 511 (1996), and Durham Hosiery v. Morris. Today, NC law provides that in an action for summary ejectment based on breach of a lease condition, it is sufficient for a landlord to demonstrate that the tenant breached the lease in a manner triggering the right to declare a forfeiture; the landlord has no additional burden to demonstrate that the result of such forfeiture will not be unconscionable.  The Lofton opinion, written by Justice Newby, is significant for another reason: the Court also addressed the relative roles of a public housing authority (PHA) and a trial court in a summary ejectment action based on criminal activity in violation of the lease.

READ POST "Unconscionability, Public Housing & Summary Ejectment (August 24, 2016)"

Magistrates in some counties are reporting increasing numbers of actions brought by finance companies to collect debts arising from “live loan” checks.  Many of us have seen these in our mailbox: documents that look like checks, made out to us personally, accompanied by instructions for quickly and easily converting the document to cash. When the recipient cashes the check, a contract for loan is created. This post will take a brief look at two North Carolina statutes that govern such loans: GS 75-20, which mandates specific disclosures on the check as well as the attached loan agreement, and GS Ch. 53, Art. 15, the Consumer Finance Act (CFA).

My topic for today’s post is drawn from an email I received last week from a magistrate asking several great questions. Here’s what she wrote: “I was just thinking about […]