Tag: Rule 60
  • Enforcing Foreign Judgments – What defenses can a judgment debtor raise?

    What happens when a creditor gets a judgment against a debtor in Alabama (or another state) but then the judgment debtor moves to North Carolina, or the bulk of its property is in North Carolina?  Can the creditor can get its “foreign” (meaning out-of-state, not out-of-country) judgment enforced in North Carolina?  Yes, and typically the most efficient way is to follow the steps in North Carolina’s version of the Uniform Enforcement of Foreign Judgments Act (“UEFJA”), G.S. 1C-1703 through -1708.

    If the creditor follows the UEFJA’s filing and notice requirements, the foreign judgment will be “docketed and indexed in the same manner as a judgment of this State.”  The creditor can seek enforcement of the judgment just as if it had originally been entered in North Carolina.  But the UEFJA further provides that the judgment “is subject to the same defenses as a judgment of this State[.]” G.S. 1C-1703(c).  To that end, before enforcement can begin, the judgment debtor has a 30-day window to file a motion for relief from (or notice of defenses to) the judgment.  G.S. 1C-1704(b).  The UEFJA goes on to state that the debtor can raise “any other ground for which relief from a judgment of this State would be allowed.” 1C-1705(a).

    On the face of things, the UEFJA’s “same defenses” and “any other ground” language seems pretty broad and appears to open up all kinds of challenges.  But does it really mean all defenses that a debtor might raise to enforcement of a North Carolina judgment?  More pointedly, does every Rule 60(b) basis for “relief” from judgment apply? Continue Reading

  • May a Different Judge Hear My Rule 60(b) Motion?

    Lawyers typically don’t litigate (nor judges adjudicate) for very long in North Carolina without confronting Rule of Civil Procedure 60(b).  This rule allows a trial court to “relieve a party…from a final judgment, order, or proceeding” for a number of reasons based in equity. The reasons are divided into six categories:

    • Mistake, inadvertence, surprise, or excusable neglect;
    • Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
    • Fraud…, misrepresentation, or other misconduct of an adverse party;
    • The judgment is void;
    • The judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or
    • Any other reason justifying relief from the operation of the judgment.

    Unlike Rule 50 (JNOV) and 59 (new trial) motions, which must be made within 10 days after judgment, Rule 60(b) motions may be filed up to one year from the order (or, for the last three categories, potentially even later), as long as the timing is reasonable. There will be occasions when the moving party can be heard by the same judge who issued the order.  But often the passage of time can make this difficult: The judge may be presiding in a different district or may be ill, on leave, or no longer on the bench.  It’s not surprising, then, that fairly often my colleagues and I are asked:  May a judge other than the original judge hear and rule on a Rule 60(b) motion? Continue Reading

  • Obtaining Relief from an Adjudication of Delinquency: Does Rule 60 Apply?

    Several years ago when I was an appellate attorney for the State, I filed a cert petition seeking appellate review of a court order granting a Rule 60(b)(6) motion to set aside an adjudication of delinquency for first degree sex offense. The court found that the allegations were proven beyond a reasonable doubt but then allowed the juvenile’s Rule 60(b) motion because the offense (fellatio) was four years old, it was not committed in a violent manner, the juvenile showed no risk of reoffending, and labeling the juvenile as a sex offender would do him more harm than good. Based on these findings, the court concluded that “extraordinary circumstances” existed and that justice required granting the juvenile’s motion. The Court of Appeals declined to review the order and still hasn’t addressed whether Rule 60(b) applies to delinquency cases.

    District court judges throughout the state disagree on the answer (which I discovered during a lively debate in my first juvenile delinquency course at the School of Government). There is no clear answer, but appellate cases suggest that Rule 60(b) does apply. However, it may not authorize setting aside an adjudication order, as described above. Here’s why.

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  • Slip-ups happen, but when are they “excusable neglect”?

    Defendant fails to answer the complaint on time, so plaintiff seizes the moment and obtains default judgment.  A party does not understand a notice of hearing, fails to attend, and the court enters a final order in the opponent’s favor.  These and similar scenarios happen regularly in North Carolina courts, and afterward the most common argument for relief from the judgment is “excusable neglect.”  Rule of Civil Procedure 60(b) allows relief from a “final judgment, order, or proceeding” on this basis.  But just what does excusable neglect mean?

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