My witness has died. He made an affidavit. If my adversary is seeking a summary judgment against me can I use an affidavit as evidence?
It depends. NC has a "dead man's statute," codified in Rule 601 of our Rules of Evidence, that might apply.
"A witness' testimony is incompetent under the dead man's statute if the witness is a party or is interested in the event; his testimony relates to a personal communication with the decedent; the action is against a personal representative of the decedent or a person deriving title or an interest from, through, or under the decedent; or the witness is testifying in his own behalf." In re will of Hester, 84 N.C. App. 585, 353 S.E.2d 643, rev'd on other grounds, 320 N.C. 738, 360 S.E.2d 801, rehearing denied, 321 N.C. 300, 362 S.E.2d 780 (1987).
Rule 56 of the N.C. Rules of Civil Procedure governs motions for summary judgment. Under that rule, "[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein."
So if the dead man's statute applies, the affidavit isn't admissible, and therefore will not be able to be used in the summary judgment proceedings. If it doesn't you may properly use it to support your motion.See question
I have a contract with a window company to custom make 2 windows for me that they said would take 6-8 weeks. The language in the contract states "This contract calls for made to order goods and thus is not subject to cancellation except as stated...
This is a sale of goods, so is governed by the Uniform Commercial Code (the "UCC"), as adopted by North Carolina (N.C. Gen. Stat. 25-5-101, et seq.). As a general rule under the UCC, if the parties haven't agreed otherwise, they have a "reasonable time" to perform:
§ 25-2-309. Absence of specific time provisions; notice of termination.
(1) The time for shipment or delivery or any other action under a contract if not provided in this article or agreed upon shall be a reasonable time.
(2) Where the contract provides for successive performances but is indefinite in duration it is valid for a reasonable time but unless otherwise agreed may be terminated at any time by either party.
(3) Termination of a contract by one party except on the happening of an agreed event requires that reasonable notification be received by the other party and an agreement dispensing with notification is invalid if its operation would be unconscionable. (1965, c. 700, s. 1.)
Here, the contract lays out a general time frame (about 6-8 weeks), and so that should be considered the reasonable time period. In my view, the additional two weeks they've told you probably constitutes the limit of what's reasonable. However, there is ambiguity introduced by the fact that the contract says "on or about."
Regardless, as the buyer in this case, you can demand assurances:
§ 25-2-609. Right to adequate assurance of performance.
(1) A contract for sale imposes an obligation on each party that the other's expectation of receiving due performance will not be impaired. When reasonable grounds for insecurity arise with respect to the performance of either party the other may in writing demand adequate assurance of due performance and until he receives such assurance may if commercially reasonable suspend any performance for which he has not already received the agreed return.
(2) Between merchants the reasonableness of grounds for insecurity and the adequacy of any assurance offered shall be determined according to commercial standards.
(3) Acceptance of any improper delivery or payment does not prejudice the aggrieved party's right to demand adequate assurance of future performance.
(4) After receipt of a justified demand failure to provide within a reasonable time not exceeding thirty days such assurance of due performance as is adequate under the circumstances of the particular case is a repudiation of the contract. (1965, c. 700, s. 1.)
The time that has gone by already is "reasonable grounds for insecurity." You can therefore make written demand for assurances. The vendor will then have no more than thirty days (I think two weeks would be reasonable in your case, but thirty days is the outside limit) to adequately assure you of compliance. If they don't, you can consider the contract breached.See question
There was cash in accounts and a lot of other things in her home when he filed this with the will. We were not given an inventory list either. I don't think he even put one together. He has not shown me anything or my brother, both of us benefic...
If you know that there were assets, and the personal representative is not dealing with them appropriately, it is possible that he is in breach of his fiduciary duties:
§ 28A-13-2. General duties; relation to persons interested in estate.
A personal representative is a fiduciary who, in addition to the specific duties stated in this Chapter, is under a general duty to settle the estate of the personal representative's decedent as expeditiously and with as little sacrifice of value as is reasonable under all of the circumstances. A personal representative shall use the authority and powers conferred upon the personal representative by this Chapter, by the terms of the will under which the personal representative is acting, by any order of court in proceedings to which the personal representative is party, and by the rules generally applicable to fiduciaries, for the best interests of all persons interested in the estate, and with due regard for their respective rights. (1973, c. 1329, s. 3; 2011-344, s. 4.)
Such a breach would give rise to liability:
§ 28A-13-10. Liability of personal representative.
(a) Property of Estate. - A personal representative shall be liable for and chargeable in the personal representative's accounts with all of the estate of the decedent which comes into the personal representative's possession at any time, including all the income therefrom; but the personal representative shall not be liable for any debts due to the decedent or other assets of the estate which remain uncollected without the personal representative's fault. Except for commissions allowable by law, the personal representative shall not be entitled to any profits caused by an increase in values, nor be chargeable with loss by a decrease in value or destruction without the personal representative's fault, of any part of the estate.
(b) Property Not a Part of Estate. - A personal representative shall be chargeable in the personal representative's accounts with property not a part of the estate which comes into the personal representative's possession at any time and shall be liable to the persons entitled thereto if:
(1) The property was received under a duty imposed on the personal representative by law in the capacity of personal representative; or
(2) The personal representative has commingled such property with the assets of the estate.
(c) Breach of Duty. - A personal representative shall be liable and chargeable in the personal representative's accounts for any loss to the estate arising from the personal representative's embezzlement or commingling of the estate with other property; for loss to the estate through self-dealing; for any loss to the estate from wrongful acts or omissions of the personal representative's joint personal representatives which the personal representative could have prevented by the exercise of ordinary care; and for any loss to the estate arising from the personal representative's failure to act in good faith and with such care, foresight and diligence as an ordinarily reasonable and prudent person would act with the ordinarily reasonable and prudent person's own property under like circumstances. If the exercise of power concerning the estate is improper, the personal representative is liable for breach of fiduciary duty to interested persons for resulting damage or loss to the same extent as a trustee of an express trust. (1973, c. 1329, s. 3; 1975, c. 300, s. 4; 2011-344, s. 4.)
Regardless, assuming that you are a beneficiary under the will (or a potential beneficiary), you have the right to be kept informed. Moreover, your brother has an obligation under Article 20 to file an inventory within three months.
You should speak with your brother, and if you are unable to get adequate answers, I recommend you call an attorney.See question
They keep calling my parents home. I did get a loan from a canyon Creek awhile ago. If I remember I paid them off. They said they were going to garnish my wages, get me on check fraud and ect..... $2,300 is what they said I owe all together. What ...
You should call an attorney.
Federal and state law forbid debt collectors from, among other things, falsely representing that they will take action that is not permitted by law. If everyone is in North Carolina, that would include threatening to garnish wages, which North Carolina law does not permit. I've included one section of the relevant North Carolina statute below, but again--you should consult with an attorney.
§ 75-51. Threats and coercion.
No debt collector shall collect or attempt to collect any debt alleged to be due and owing from a consumer by means of any unfair threat, coercion, or attempt to coerce. Such unfair acts include, but are not limited to, the following:
(1) Using or threatening to use violence or any illegal means to cause harm to the person, reputation or property of any person.
(2) Falsely accusing or threatening to accuse any person of fraud or any crime, or of any conduct that would tend to cause disgrace, contempt or ridicule.
(3) Making or threatening to make false accusations to another person, including any credit reporting agency, that a consumer has not paid, or has willfully refused to pay a just debt.
(4) Threatening to sell or assign, or to refer to another for collection, the debt of the consumer with an attending representation that the result of such sale, assignment or reference would be that the consumer would lose any defense to the debt or would be subjected to harsh, vindictive, or abusive collection attempts.
(5) Representing that nonpayment of an alleged debt may result in the arrest of any person.
(6) Representing that nonpayment of an alleged debt may result in the seizure, garnishment, attachment, or sale of any property or wages unless such action is in fact contemplated by the debt collector and permitted by law.
(7) Threatening to take any action not in fact taken in the usual course of business, unless it can be shown that such threatened action was actually intended to be taken in the particular case in which the threat was made.
(8) Threatening to take any action not permitted by law. (1977, c. 747, s. 4.)
My mother has a home which is empty. She cut the water off at the street. The county turned this valve on and flooded the home when a pipe burst, They admitted they did this. They waived the water bill. I asked the county to pay. They had a ...
One of the first cases I ever handled dealt with facts very similar to this one--this kind of case is more complicated to analyze than it might appear. It involves some fairly interesting questions of sovereign immunity (when a subdivision of the state, like a county, simply can't be sued for its negligence), waiver of that immunity (and the extent to which the waiver occurred, if it did), and causation. Because of the many moving parts, it is difficult to state with any certainty whether suing is worth your time. That said, it is certainly worth speaking to a lawyer about it, and I encourage you to do so.See question
I have read the NC Statute 1-52, but it says nothing about the 3 year limitation being renewed by a payment.
There is considerable case law establishing this: see, e.g., Fleet Real Estate Funding Corporation v. Blackwelder, 83 N.C. App. 27 (1986) (if a debtor "makes a partial payment after his or her original promise to pay is broken but before the statute of limitations has run, then the statute begins to run anew. . . .").See question
So if it was field 2009 when will expire
Judgments in NC are generally valid for 10 years from the date of entry, and can be renewed one time within that period for an additional ten years from the date of renewal.
The 2009 judgment will therefore expire in 2019, unless it is renewed, in which case it will expire 10 years from the date of renewal.See question
Is the judgment now dead and no longer enforceable?
As a general rule, judgments remain valid in North Carolina for 10 years (not five), and can be renewed once for an additional ten years. As a result, it appears your judgment remains viable until at least February 2018.See question
I would like to post a notice in the local paper of my small claims judgment to get this person to pay me back my money. Is it legal to post the judgment? Besides filing the exclusion papers, what rights do I have in order to get my money?
I would advise against it. There are both state and federal consumer protection laws prohibiting the unreasonable publication or publicity of debts owed, and though it is not clear from your question whether those laws apply to you, you are better safe than sorry.
There are many tactics you may legally employ to recover on your judgment, potentially including the seizure and sale of real and/or personal property, levying on bank accounts, or pursuing debtors of the judgment debtor. I recommend calling an attorney with experience collecting on judgments for advice.See question
I had a default judgement awarded against me on July 21, 2003. New papers were filed for a renewal of the remaining balance of the judgement on July 22, 2013. Has the statue of limitations expired and can this judgement be renewed?
Generally speaking, pursuant to NC Rule of Civil Procedure 6(a), the day on which an act occurs does not count in computing the time in which something must be done, and if the final day is on a weekend, the due date rolls forward:
(a) Computation. – In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, including rules, orders or statutes respecting publication of notices, the day of the act, event, default or publication after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday or a legal holiday when the courthouse is closed for transactions, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or a legal holiday when the courthouse is closed for transactions. When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays, and holidays shall be excluded in the computation. A half holiday shall be considered as other days and not as a holiday.
July 22 was one year after the day after the judgment was entered, and was a Monday, besides. It therefore appears at first blush that this was timely filed. However, I would consult a North Carolina attorney to look at the particulars of your situation. Best of luck.See question