Is the Date Wrong on the Notice of Right to Have Exemptions Designated?

Date Received Illustration

In the process of post- judgment collection against an individual in North Carolina, the individual collections defendant is served a notice of their right to have designated certain property as exempt, preventing the creditor from selling that property to satisfy the judgment. Elsewhere on this blog, I discussed the basics of Notice of Right to Have Exemptions Designated in greater detail.

Filing the form motion to claim property exemptions in a North Carolina judgment collection is a time sensitive matter. Under the exemption statute (at NCGS § 1C-1603(e)(2)), the motion to designate exempt property must be filed with the court and served on (mailed to) the creditor within 20 days of the date of service. But what is the date of service? Most commonly, service of a notice of right to have exemptions designated is performed by a deputy sheriff, much the same way that a summons and a complaint are served at the beginning of a lawsuit. Service is performed when the deputy hands the papers over to the defendant, or some other suitable person at the defendant's normal resident. Rule 4(j)(1)(a) of the North Carolina Rules of Civil Procedure governs such service.

The "Date Received" is Wrong?

A common point of concern amongst those served with a notice of right to have exemptions designated is that the date on the back of the form appears at first glance to be wrong. Typically when a deputy sheriff has served this notice, only one date on the back of notice has been filled in, the "Date Received." This date is not date of service, rather the "Date Received" is the date the sheriff's office received the notice and motion paperwork. Compared to the actual date of service, this date is much less important.

One would observe that the "date served" box is blank on the typical defendant/debtor's copy of the notice of right to exemptions designated. If one were to go to the courthouse and look in the civil file for the lawsuit, one would find the actual return of service copy filed by the sheriff's office. On this copy, the "date served" box would not be blank. In fact, if there is uncertainty as to when the notice was served (and hence when the deadline for filing a motion is), looking up this record in the courthouse can resolve the confusion.

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Attorney Erich Fabricius offers affordable representation to individuals who have been sued to collect a debt. Whether the complaint has just arrived or execution of a judgment is imminent, Erich advises defendants and judgment debtors as to their rights and options.

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