Resting on Your Rights: The Judge Can't Help You!

July 18, 2018

In a recently decided case, the North Carolina Court of Appeals reinforced the

 

maxim that resting on your legal rights will lead to a waiver of those rights. Unifund CCR, LLC v. Isabelle Francois, involved a “debt buyer’s” lawsuit to collect on old credit card debt.

 

The creditor sued Ms. Francois for $4,618 on credit card purchases that were more than three years old.  The complaint stated, apparently in error, that the suit was filed within the statute of limitations (three years).   Francois did not answer the lawsuit.  When the creditor appeared before Judge Becky T. Tin to obtain a default judgment, Judge Tin refused to hold Francois liable for the debt, finding that the debt was incurred more than three years prior to the suit, and that the statute of limitations therefore barred the suit.  Judge Tin dismissed the case.

 

The creditor appealed, and the appellate court ruled that the trial judge had no authority to dismiss the case, or review the merits of the case, because the defendant had failed to appear or raise the statute of limitations as a defense.  This ruling was issued even though North Carolina law punishes as unfair practice suits by collection agencies on debts the agency knows or should know are barred by the statute of limitations.  Further, the appellate court did not address the allegedly false allegation in the complaint that the collection agency filed suit within the statute of limitations.

 

To be fair, Ms. Francois should have answered the lawsuit, for it appears she had a solid defense and a counterclaim against the collection agency.  Disturbing, however, is the appellate court’s admonition that a trial judge, who gives an oath to “support and maintain the Constitution and laws of the United States, and the Constitution and laws of North Carolina not inconsistent therewith,” is powerless to stop a miscarriage of justice.  In fact, I would argue, that is exactly what every trial judge should do.  In so ruling, the appellate court has stripped trial judges across North Carolina of the power to judge in some instances, to make things right, and to protect the rights of parties who may be ignorant of their own rights.

 

The lesson is clear: retain an attorney for every legal matter, no matter how trivial or baseless it may seem.  And somewhere, in perhaps only my writer’s mind, Lady Justice is crying. 

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The attorneys at Wimer & Snider, P.C. in Asheville have represented clients in much of the United States, including North Carolina, South Carolina, Georgia, Florida, California, Virginia, and Texas. We are licensed to practice law in North Carolina and Texas. Our offices are conveniently located in the arts district of West Asheville, NC.   Phone: 828-350-9799

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