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Can a motion to strick "affidavit of debt in support of plaintiff's claim" be submitted at the msj hearing?

Southport, NC |

Must the opposing side know before the summary judjment that this is being entered?

Attorney Answers 4


  1. Yes if you are going to prepare and file a Motion to Strike Affidavit, you must follow all the court rules about the filing and give proper notice to your opponent in advance.


  2. The court could accept the motion at the hearing and give the respondent an opportunity to file opposition after the hearing and then consider all the papers rather then have another hearing.

    Disclaimer: This answer does not constitute legal advice. I am admitted in the States of New York, New Jersey and Massachusetts only and make no attempt to opine on matters of law that are not relevant to those three States. This advice is based on general principles of law that may or may not relate to your specific situation. Facts and laws change and these possible changes will affect the advice provided here. Consult an attorney in your locale before you act on any of this advice. You should not rely on this advice alone and nothing in these communications creates an attorney client relationship.


  3. Yes. You are required to give the other party advance notice of a motion to strike. If you have a motion to strike an affidavit, you must file and serve your motion at least five (5) business days before the hearing. If you serve the opposing party by mail, you need to allow an additional three (3) days, for a total of eight (8) days. In addition, you need to contact the Trial Court Administrator in the county in which the court is located and ask them to place your matter on the docket for the county where the matter is being heard and prepare and serve a "Notice of Hearing" for your motion to strike.

    The attorney responding is licensed only in the state of North Carolina. This response does NOT constitute legal advice and does NOT create an attorney/ client relationship! Rather, the response is in the form of legal education and is intended to provide general information about the matter in question. Although a response is provided to the specific question, there may be other facts and law relevant to the issue that the questioner has left out and which would make the reply unsuitable. Therefore, the questioner should not base any decision on the answer, but should confer with an attorney in person about the specifics of his or her case.


  4. Popular media, such as television lawyer dramas, give the impression that the courtroom is a place where parties ambush each other with surprise motions and evidence. In the real world, though, those kinds of tactics often don't succeed and may even be contrary to procedural rules.

    The North Carolina Rules of Civil Procedure DO allow a litigant to make a verbal motion in open court during a hearing or at a session at which the case is on the calendar for that session. However, as a practical matter, you really should put the motion in writing to ensure that it is in the record in the event that the judge denies the motion and you want to appeal. Additionally, as pointed out by the other attorneys, it is often the case that a "surprise" motion in open court causes the judge to continue the hearing to another date in order to give the "surprised" opponent time to marshal a response to the motion.

    Take note: you need to be prepared to defend the motion for summary judgement in the event that the judge denies your motion to strike the affidavit. To oppose the motion for summary judgment, it is imperative that you serve and file opposing affidavits. The rules for summary judgment procedure are here: http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/BySection/Chapter_1A/GS_1A-1,_Rule_56.html.

    I would suggest that you consult an attorney in your local area for help before you get in over your head.

    (The attorney responding is licensed only in the state of North Carolina. This response does NOT constitute legal advice and does NOT create an attorney/ client relationship! Rather, the response is in the form of legal education and is intended to provide general information about the matter in question. Although a response is provided to the specific question, there may be other facts and law relevant to the issue that the questioner has left out and which would make the reply unsuitable. Therefore, the questioner should not base any decision on the answer, but should confer with an attorney in person about the specifics of his or her case.)