Question re filing Complaints


#1

How vital to the legal integrity of a Divorce Complaint is it for the document to be properly notarized, as in with a Notary Seal.

The verification form itself has printed on it the name of North Carolina county (plus the state name, NC) where it was presumably signed and notarized (but not stamped).

Thanks


#2

If the notary block is incorrect, you can file a motion to dismiss for failure to follow the verification requirements of Rule 11 pursuant to NCGS 50-8. You will then have to find out how to calendar your motion and be heard on it. The plaintiff will then be able to refile the complaint with the correct notary. If you do not say anything, the judge may or may not catch the error. If he/she does catch it, they will likely instruct the plaintiff to amend the complaint or refile depending on whether a responsive pleading has been filed for you. Either way, this error should only delay the divorce from going through for a short period.


#3

Thank you for this information.

So does it seem more likely that a judge will just order the complaint to be amended if I have filed an Answer along with the Motion as opposed to filing just the Motion and scheduling that? I would not like to lose my opportunity to file an Answer but am not sure which time seems best to do so.

Thank you.


#4

If you have filed an answer and the plaintiff wants to amend the complaint, he/she has to file a motion for leave to amend. In that situation, it may be easier (even if more expensive) to just dismiss the claim and refile.

If you want to file an answer, you should do so now, and then again if/when the complaint is amended or refiled.


#5

I received a notice today for a Motion for Summary Judgement and will plan on attending the hearing. I’m baffled that his attorney would schedule a court date instead of first amending the complaint to correct the address error and omission of notary seal. Do I need to schedule my Motion to Dismiss for the same date (I filed it a while back, along with my Answer) to have it heard or you you feel that the judge see it in the case file and put a hold on the Summary Judgment Motion?

Is there any way of figuring out which judge will be hearing the Motion for Summary Judgment? On the court calendar it looks like that date, Jan 18, has been closed for quite some time for all the judges.

Thanks


#6

You can contact the clerk and try to get your motion calendared for the same day and time, but if that isn’t possible, you should show up for the hearing to alert the judge to the error.

If the case is in Wake County, divorces are held in 9B so it will be heard in the judge in that courtroom on January 18th.


#7

Thank you. I am wondering if the hearing was scheduled before the 30 days wait were up last Friday, since there don’t seem to be Friday hearing openings for quite a while.

Is the day and time that the hearing date was scheduled at the Clerk of Court offices part of the filed paperwork and something I can go see and get a copy of?

Thanks


#8

The calendar doesn’t accurately denote whether days are “open” for divorces since divorces are handled differently than other family law cases. You should receive a copy of the notice of hearing and calendar request for the motion for summary judgment hearing.


#9

I looked at the schedule for the date of my hearing next Friday… it is the only one (divorce hearing) scheduled for that day in 9B, which seems a bit odd.

I am curious as to how a family court judge would view an incorrect Plaintiff address oh his complaint and an improperly notarized (no stamp) verification with regards to the “genuine issues of material fact” in granting a Summary Judgment Divorce.

Should I address those issues in a Response, which I seem to have until 2 days before the hearing to do under Rule 56? Or can I present my side in court on the day of.

Thanks


#10

The divorces are not listed on the judges’ calendars in Wake County as the courtroom clerk keeps up with that calendar rather than the normal clerk. If your case is listed, there must be another issue that the judge is also addressing.

All judges treat things differently, but as I stated before, the issue with the notary seal should be rectified. You can file it in a response or be present to point out the issue to the judge.