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How do I file an extension to answer a complaint in North Carolina

 
 
Reply Sun 21 Jun, 2009 08:43 am
I have been in the hospital for 11 days and got served with a complaint just before I entered the hospital. I am getting out this Wednesday. Due to all that is going on, I have not been able to secure legal representation and no where near to answer the complaint. My niece said I should be able to file an extension for 30 days to answer the complaint.

I am in North Carolina. Can anyone help me get started please? Where do I go? What form do I need? What should it say? My niece worked for as a admin assistant so she can help me with the typing, etc.
 
View best answer, chosen by CompostMaker
jespah
 
  1  
Reply Sun 21 Jun, 2009 09:33 am
@CompostMaker,
I'd start here: http://www.nccourts.org/

Explain exactly what you've mentioned here.
CompostMaker
 
  1  
Reply Sun 21 Jun, 2009 12:06 pm
@jespah,
Thank you kindly. I searched in forms, and also searched :request extension: and nothing came up about asking for more time to give answers? I'm not the best with this stuff. Any more thoughts?
0 Replies
 
CompostMaker
 
  1  
Reply Sun 21 Jun, 2009 12:08 pm
@CompostMaker,
I found only this one: Application And Order Extending Time To File Complaint
0 Replies
 
Debra Law
 
  3  
Reply Sun 21 Jun, 2009 01:33 pm
I assume that you are discussing a civil complaint. The purpose of an answer is to admit or deny the allegations/claims in the complaint. If you fail to do so within the time allowed, the allegations are deemed admitted and the plaintiff may obtain a default judgment against you. The pleadings must be construed to do substantial justice. Example below.

ANSWER

The defendant in the above-captioned case states the following:

1) I generally deny all the averments/claims in the complaint and place the plaintiff to his/her proof.

2) The plaintiff has failed to state a claim upon which relief may be granted.

3) I assert and reserve all defenses that may be available to me including, but not limited to, accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.

4) Because the complaint was served upon me just prior to a lengthy hospitalization, I have not had a reasonable opportunity to consult with an attorney concerning this matter. I therefore reserve the right to consult an attorney, to retain legal services, and to file an amended answer and/or counterclaim as the facts and circumstances may warrant.

Dated

Signature
Name
Mailing Address
Phone Number

Certificate of Mailing

The defendant certifies that a true and correct copy of the foregoing ANSWER was mailed on [DATE] to the plaintiff's attorney at the mailing address shown on the complaint.

Signature


(Send original to clerk of court with filing fee and send a copy to plaintiff's counsel. Keep a copy for your own records. Retain services of counsel.)

Debra Law
 
  1  
Reply Sun 21 Jun, 2009 01:51 pm
North Carolina Rules of Civil Procedure:

http://www.ncga.state.nc.us/gascripts/Statutes/StatutesTOC.pl?Chapter=0001A

See: Rule 6 Time

(b) Enlargement. " When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order. Upon motion made after the expiration of the specified period, the judge may permit the act to be done where the failure to act was the result of excusable neglect. Notwithstanding any other provisions of this rule, the parties may enter into binding stipulations without approval of the court enlarging the time, not to exceed in the aggregate 30 days, within which an act is required or allowed to be done under these rules, provided, however, that neither the court nor the parties may extend the time for taking any action under Rules 50(b), 52, 59(b), (d), (e), 60(b), except to the extent and under the conditions stated in them.

0 Replies
 
CompostMaker
 
  1  
Reply Sun 21 Jun, 2009 06:06 pm
@Debra Law,
Thanks this is GREAT and it is for a civil case. Thank you so much.

Yes, I want to send in answers but only once I get legal representation.

How will I know if my extension gets granted?

What if I do not want to mention the hospital stay... I just don't want them to know more about me than necessary. Can I just say I have been too busy due to personal obligations?

By the way, what does number 2 mean?

You are the best!
Debra Law
  Selected Answer
 
  2  
Reply Sun 21 Jun, 2009 10:16 pm
@CompostMaker,
Please review the civil rules. Rule 6 applies to your question.

Debra Law wrote:

North Carolina Rules of Civil Procedure:

http://www.ncga.state.nc.us/gascripts/Statutes/StatutesTOC.pl?Chapter=0001A

See: Rule 6 Time

(b) Enlargement. " When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order. Upon motion made after the expiration of the specified period, the judge may permit the act to be done where the failure to act was the result of excusable neglect. Notwithstanding any other provisions of this rule, the parties may enter into binding stipulations without approval of the court enlarging the time, not to exceed in the aggregate 30 days, within which an act is required or allowed to be done under these rules, provided, however, that neither the court nor the parties may extend the time for taking any action under Rules 50(b), 52, 59(b), (d), (e), 60(b), except to the extent and under the conditions stated in them.



According to the rule, you may contact the attorney for the plaintiff by telephone or letter and request his/her agreement to a 30 day extension to file an answer in order to give you time to retain an attorney. If the attorney agrees, ask him/her to send you a letter stating his/her agreement. (Most attorneys will act with professional courtesy and grant the extension upon request.) According to the rule, nothing else would be required to get the extension.

If the plaintiff's attorney does not agree to an informal extension, write to the court and request an enlargement of time, i.e. 30 additional days, under Rule 6 to answer the complaint in order to give you adequate time to secure legal representation. Be sure to provide the court with the case caption, case number, and your name and mailing address. Send a copy of your request to the plaintiff's attorney. The court will notify you of the court's decision.

More likely than not, your request will be granted. Nevertheless, you shouldn't waste any time retaining a lawyer to prepare your answer.

0 Replies
 
Debra Law
 
  1  
Reply Tue 23 Jun, 2009 11:23 pm
Please do not send me private messages. I don't mind giving information in the thread. But I do not give legal advice. I don't understand why it is taking you so long to retain an attorney.

Let's review information that is available to you online:

HERE is the LINK to the NC Rules of Civil Procedure:

http://www.ncga.state.nc.us/gascripts/Statutes/StatutesTOC.pl?Chapter=0001A

The Rules of Civil Procedure are akin to a recipe book and the rules give you detailed instructions from beginning to end concerning the requisite makings of a civil action (lawsuit).

Look at Rule 3: A civil action is commenced by the filing a complaint with the court. (The clerk of court files the complaint and assigns a civil number to the case.)

See Rule 7: Both a complaint and an answer are PLEADINGS.

See Rule 10: Form of Pleadings:

(a) Caption; names of parties. " Every pleading shall contain a caption setting forth the division of the court in which the action is filed, the title of the action, and a designation as in Rule 7(a). In the complaint the title of the action shall include the names of all the parties, but in other pleadings it is sufficient to state the name of the first party on each side with an appropriate indication of other parties.

NOTE: Because you were served with the Complaint (and a Summons), you have the CAPTION and the case number. It's not rocket science.

See Rule 4 concerning the contents of a SUMMONS:

(b) Summons " Contents. " The summons shall run in the name of the State and be dated and signed by the clerk, assistant clerk, or deputy clerk of the court in the county in which the action is commenced. It shall contain the title of the cause and the name of the court and county wherein the action has been commenced. It shall be directed to the defendant or defendants and shall notify each defendant to appear and answer within 30 days after its service upon him and further that if he fails so to appear, the plaintiff will apply to the court for the relief demanded in the complaint. It shall set forth the name and address of plaintiff 's attorney, or if there be none, the name and address of plaintiff. If a request for admission is served with the summons, the summons shall so state.

NOTE: The summons essentially tells you that you have 30 days to serve your responsive pleading, ie. ANSWER on the opposing party.

What must be contained in your ANSWER? The rules of civil procedure tell you. Review NC Rules of Civil Procedure, Article 3, Pleadings and Motions, Rules 7-16.

A MOTION is simply a written application to the court for an order.

See Rule 7 concerning motions:

(b) Motions and other papers. "

(1) An application to the court for an order shall be by motion which, unless made during a hearing or trial or at a session at which a cause is on the calendar for that session, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion.

NOW look at Rule 6, Enlargement of time:

(b) Enlargement. " When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order. Upon motion made after the expiration of the specified period, the judge may permit the act to be done where the failure to act was the result of excusable neglect. Notwithstanding any other provisions of this rule, the parties may enter into binding stipulations without approval of the court enlarging the time, not to exceed in the aggregate 30 days, within which an act is required or allowed to be done under these rules, provided, however, that neither the court nor the parties may extend the time for taking any action under Rules 50(b), 52, 59(b), (d), (e), 60(b), except to the extent and under the conditions stated in them.

BASED on the foregoing, you know that you are required to answer the complaint within 30 days. You want more time so that you can retain an attorney. Rule 6 specifically states: the court for cause shown may at any time in its discretion WITH OR WITHOUT motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order.

Rule 6 doesn't require a written motion nor does it require advance notice to the opposing party. This is one of those RARE occasions where you may go directly to the court and say, hey I need an additional 30 days to answer the complaint because I need to secure legal representation. It's not that big of a deal, however, to place the case caption and case number on a piece of paper and thereunder place your request in writing (that makes your written request a "motion.")

In your message, you stated that you submitted your written request for enlargement of time to the clerk of court, but the clerk stated that you needed a written motion and an order.

(Maybe you need to print Rule 6 out and show it to the clerk so that the clerk understands that Rule 6 does not require the formalities of a formal motion nor does it require advance notice to the opposing party. If the clerk is confused about your particular request, the clerk might not immediately submit your request to the judge.) Nevertheless, a written request for an order is a motion and you stated that you placed your request in writing.

Out of courtesy to the court, people requesting an order often draft a proposed order for the court's signature. A proposed order may be drafted by placing the case caption and case number on a piece of paper, titling the paper "ORDER GRANTING RULE 6, N.C.R.Civ.P., REQUEST FOR ENLARGEMENT OF TIME," and including the language of an order that simply states what you want the court to say.

Example of Language:

BY ORDER OF THE COURT:

The Court hereby grants the Defendant's request under Rule 6, North Carolian Rules of Civil Procedure, for 30 additional days commencing on the date of this order to answer the complaint in this matter.

Dated this ___ day of ________, 2009

___________________
Name of Judge
Name of Court

Procedure is simple if you just read, understand, and follow the rules! Also, the clerk of court is there to help you. If you have questions and ask nicely, the clerk is generally very helpful. If the clerk wants a written motion in a particular format, ask the clerk to show you a copy of the acceptable format. If the clerk wants you to submit a proposed order, ask the clerk to show you a copy of an acceptable order. Ask the clerk to submit your request to the court immediately. Ask her how long it will take. Ask her if this can be done while you wait or if she will send you a copy of the order if the judge signs it. Direct your questions concerning this matter to the clerk. Again, it's not rocket science--it's just following the rules and determining how your local clerk/court likes to do things.

But the people on this board cannot hold your hand through this entire process. You said you were going to get an attorney, so get an attorney. Do it now! Getting an attorney isn't rocket science either. Open your local directory and find the yellow pages!

0 Replies
 
rhmartin
 
  1  
Reply Mon 21 Sep, 2009 05:09 pm
@CompostMaker,
Just go to see the Clerk of Court in the county you live in and ask. The clerk can grant the first 30 day extension. Just get the paper that sued you (The Complaint) and copy the styling (the so and so vs. so and so part at the top including the case number. After the styling write May I please have a thirty day extension to answer because I was in the hospital. Sign and date and then under your signature write the word ORDER (centered) under that write. A 30 day extension to answer the complaint is granted. The complaint must now be filed by _______________.
Then put in a signature for the clerk's signature. Bring 2 copies and an envelope addressed to the plaintiff's lawyer. The clerk will keep the original. Mail a copy to the other side and start your file with the third copy. Then go find a lawyer. Any questions? ask me at rhmartin@rhmartin.net
0 Replies
 
 

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