North Carolina Judgment Enforcement and Collection Attorney Thomas Kerner

Enforcing Foreign Judgments in North Carolina - Court of Appeals Rules on Rule 60 Defense

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 Servies of NC, LLC, COA12-783.

 In DOCRX, the Defendant opposed enforcement of an Alabama judgment on grounds that fraud occurred during the course of the plaintiff obtaining the judgment in the Alabama trial court (the opinion does not provide any information about what this alleged fraud was, unfortunately). Since 1C-1703(c) allows a defendant to use "any... ground for which relief from a judgment of this State would be allowed."

 Following that, the trial court noted that Rule 60(a)(3) of the North Carolina Rules of Civil Procedure permit a defendant to move for relief from a judgment on grounds of "fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party." Reading the two sections together, the trial court found that the Alabama judgment had procured via what it called "intrinsic" fraud, and therefore, invoking the Rule 60 defense it believed was available to the defendant via its reading of 1C-1703(c), denied the Plaintiff's motion to enforce the foreign judgment.

 The Court of Appeals, however, noted that the Full Faith and Credit Clause of the US Constitution limits which state law defenses are available under the Uniform Enforcement of Foreign Judgments Act.  Reviewing decisions from other states (which had expressly ruled on the issue), as well as prior decisions in North Carolina (which had not, but whose opinions had been consistent with those from other states), the Court of Appeals held that "intrinsic" fraud is not a valid defense to a foreign judgment.  Had the fraud been found to have been "extrinsic" the defendant would have had a valid defense. Accordingly, the Court of Appeals vacated the trial court's order denying the plaintiff's motion to enforce.

NC Judgment and Debt Purchasers Beware: Attorneys' Fees Assessed Against Assignees Unaware that Debt Arose From Identity Theft

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 obtained a default judgment in 2001.  Of note:  First Select made six attempts at personal service using the Sheriff's office, and each time the summons and complaint were returned because the sheriff's office indicated it was unable to locate Ms. Whittington at the address on the account.  This in itself, is not unusual.  Unlike corporations, which are required by law to maintain an agent for service of process, individuals can be very difficult to locate and serve, especially ones who know they owe somebody money and don't want to pay them.  Some of them even lie to Sheriff's deputies and claim they are not the person being sought.  However, an attempt at service by Certified Mail was successful in July, 2001 ,  -- or so they thought, when the mail card was returned with a signature bearing the name Blanche Whittington -- a signature which, as it turns out, was a forgery. 

Based on this apparent service, default judgment was entered a month later. First Select then attempted to serve a Notice of Rights on Ms. Whittington in October, 2001, but again the Sheriff indicated that no one by that name could be found at the address given.  First Select then sold the judgment to Credigy, in March 2003, which tried to serve the Notice of Rights the following month.  When that was returned unserved (because the Sheriff again could find no one by that name at that address), Credigy ran a skip-trace using only the social security number from the credit application, and found "the real" Ms. Whittington at a different address (different from the one at which she was served with the original complaint, albeit many years earlier), and served her there, in 2008.  She then retained counsel, who quickly filed a motion to relieve Ms. Whittington from the judgment.  Two weeks after the motion was filed, in April 2008 in apparent agreement that the judgment had been entered against a victim of fraud, Credigy's counsel stipulated that the Rule 60 motion to set aside the judgment should be allowed.  However, Credigy disputed Ms. Whittington's claim for attorneys fees.

Credigy's counsel agreed at the initial hearing, also in April 2008, to suspend collection efforts until it could conduct its own research into Ms. Whittington's claim regarding identity theft and, but for reasons not discussed in the opinion, refused to withdraw the Notice of Rights.  Two months later, her attorneys filed a motion seeking attorneys' fees under NCGS 6-21.5.  They claimed that Credigy had pursued a non-justificiable claim, since she had never actually been served, and was not the true Defendant.  By this point-- two months after the initial motion for relief from judgment was filed, her attorneys had managed to run up more than $26,000.00 in legal fees, and spent, according to their sworn affidavits, a total of 89.4 hours on her case. (Unfortunately, the opinion does not contain an itemized breakdown of how these fees were calculated.)

Credigy then argued, at the hearing on the attorneys' fees claim, that it should not be liable for her attorneys' fees since it had no notice of the identity theft claim until two weeks prior to her Rule 60 motion being filed, that it had stopped collection efforts once it became aware of the dispute, and that Ms. Whittington had refused to fill out a standard Fraud/Identity Theft Affidavit (the opinion does not state why she refused to do this).    Credigy also attempted to argue that it was a bona fide purchased for value, not subject to the defenses to which the original Plaintiff was subject.  They also argued that she knew or should have known that the judgment was on her credit report (it had been there for more than six years, before Credigy located her) and that through the exercise of even a tiny modicum of diligence, could have been discovered and the matter resolved without further litigation.  The Superior Court disagreed, and entered an award of attorney's fees in Ms. Whittington's favor.  Credigy appealed.

In upholding of the award of attorneys fees, the Court of Appeals cited NCGS 6-21.5, which can apply when "the losing party persisted in litigating the case after a point where he should reasonably have become aware that the pleading he filed no longer contained a justiciable issue."  After a lengthy discussion of how assignees inherit the rights -and problems- of their assignors, the Court, despite initially stating that First Select had obtained a "valid judgment" against  the identity thief despite not naming her in the Complaint or identifying her on the summons or the order of judgment (she had been, of course, erroneously designated in the Complaint as Ms. Whittington), concluded that none of the Plaintiff/assignees ever held a valid claim against her, because she was never the actual account holder to begin with.  What the Court perhaps did not spend quite as much time on was detailing exactly how Credigy or its predecessors continued to litigate the case "after a point" where it "should have known" better. 

In explaining that portion of the ruling, the Court mentioned that Fleet Bank, the original creditor in all of this, "should have been aware that it would have standing against no one other than the signing party" to the credit account, and that it transferred its claim "at the first signs of collection trouble."  And of course, Fleet Bank does know that, but so far as can be gleaned from the opinion, Fleet was under the impression that Ms. Whittington was the signing party.  Credigy inherited no other problems or defenses from Fleet Bank, other than the fact that the account was bogus, though at the time of the first assignment, it does not appear Fleet or First Select was aware of this..   

The Court then went on to assail the First Select complaint for not including Ms. Whittington's social security number and home address on the complaint -- a practice which I believe would now be outlawed by the NC Identity Theft Protection Act, NCGS 132-1.10(d) which prohibits any document being "recorded with the courts" from containing a social security number, as well as NCGS 75-62, which among other things prohibits any business from mailing documents to a person that contain that person's SSN (and of course, pleadings and motions have to be served, and are often mailed) unless it has been redacted.  But there would not have been any law against doing so at the time the First Select complaint was filed.

While Credigy argued at the hearing that it traced the social security number from the creation of the account all the way to the service of the notice of rights, the Court of Appeals remained unimpressed because the social security number "was [n]ever made part of the pleadings or judgment."  In addition, Credigy "should have been aware" that the only person identified in the judgment, "Blanche Whittington of [address redacted]" was the party against whom the judgment could be enforced.  It should be noted that the real Blanche Whittington - in 2008 - lived at an address different from the one listed on the bogus credit application from 1999.

At the last, the court again states that "[t]he circumstances that the judgment was fatally flawed by ...fraud does not make the judgment justificable... and does not change the context in which Credigy and its predecessors in interest should have known that no cause of action has ever existed against Ms. Whittington." (Emphasis added). 

This case certainly has implications for creditors, debt purchasers, and their attorneys.  While the law addressed in this decision is not new, the routine practices of skip-tracing, filing complaints, service, and using account verification affidavits to establish damages, are all called into question.  The court appears to be taking creditors and their attorneys to task for the sometimes-casual practices involved in debt-mill-style litigation, the results of which can be observed first hand on District Court calendars every month in every county in the state.  Debt buyers and judgment purchasers need to understand that if there are problems with the judgments they purchase, they will inherit those problems, and that being a "bona fide" purchaser is not a defense -- even in cases of identify fraud. And it certainly presents a quandary to any litigant worried about disclosing the defendant's personally identifiable information in a pleading, motion, affidavit or memorandum -- the Court appears to be requiring that creditors take greater efforts to properly and unambiguously identify defendants in pleadings and on judgment orders -- a laudable goal, to be sure, to prevent innocent persons from the threat of judgments being executed against their property. Moreover, better identification procedures will reduce the likelihood of abusive debt collection practices that can arise from collecting against anyone who happens to have a name similar to the person on the account.  How this can be balanced with the requirements of the Identity Fraud Act is less clear, and what a creditor can do to protect itself in cases of identity fraud is even less clear.

Collecting a Judgment in North Carolina? Beware of Potential Liability

Did you know that under North Carolina law, even if you have already served a Writ of Execution and successfully collected part of a judgment, you could still be liable for damages to the judgment debtor if they later file a successful Rule 60 motion to set aside the judgment? N.C.G.S. § 1-108 provides that if a judgment is set aside pursuant to Rule 60(b) or (c) of the Rules of Civil Procedure and the judgment or any part thereof has been collected or otherwise enforced, restitution to the judgment debtor may be compelled.

If property is sold following a writ of execution, title to the property is not affected, and the buyer of the property (as, for example, at an auction) cannot be liable to the judgment debtor. Instead, restitution may be ordered against the judgment creditor and/or the creditor's personal representatives.  Something to keep in mind when setting out to collect on a judgment.

Rule 60 Motions to Set Aside a Judgment in North Carolina

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 post judgment motions under the Rules, but Rule 60 is the one most likely to come up during the execution phase). 

The thing to watch out for is: unlike an appeal,which has to be filed within 30 days or the right to appeal is lost, the right to file a Rule 60 motion lasts for “a reasonable time.”

The Rule goes on to provide, in part, that the "reasonable time" it refers to (depending on which subsection of Rule 60 the debtor is invoking) may not exceed a full year. When collecting a judgment, therefore, the first thing to do is determine whether the judgment debtor is still eligible to file a Rule 60 motion.

You might think that all that needs to happen is to look at the date of the judgment (which is measured from the date the clerk stamped or "clocked in" the order), but that is not all there is to it.

Despite the one year time limit under Rule 60, there have been cases where Rule 60 motions have been held to have been timely filed, even when they were filed well after one year. For example, in the recently decided case of Sharyn's Jewelers, LLC v IPayment, Inc., et al., 674 S.E. 2d 732 (April 2009), the North Carolina Court of Appeals found "extraordinary circumstances" to justify allowing one of the Defendants to have its Rule 60 motion considered even though the motion had not been filed until 17 months after the judgment had been entered. The circumstances were that the appealing defendant (Vericomm) had not received notice of the judgment against it for 17 months, and that the judgment awarded relief to the Plaintiff that exceeded what was sought in the Plaintiff's complaint. Specifically, the trial court had erroneously entered judgments against Vericomm on causes of action that had been pled only against the other defendants, but not Vericomm. As such, the judgment was "irregular" and could therefore be vacated in part, to the extent of the irregularities.