§ 1-474.1 — Notice of hearing; waiver; permissible form of notice and waiver

North Carolina § 1-474.1

• Jurisdiction: North Carolina
• Ch. 1: Civil Procedure
• Art. 36: Claim and Delivery
• Subch. XIII: PROVISIONAL REMEDIES

Text

(a) The clerk of court, upon the request of the plaintiff, shall issue a notice to the defendant setting a time and place for a hearing before the clerk which shall not be less than 10 days from the date of service of said notice upon the defendant. The notice shall be served on the defendant in any manner provided by the Rules of Civil Procedure for the service of summons. Upon the request of the plaintiff the notice shall contain an order enjoining the defendant from willfully disposing of the property in any manner, from removing or permitting the removal of the property from the State of North Carolina, or from causing or permitting willful damage or destruction of the property. If in a trial on the merits it is determined that the plaintiff was entitled to the possession of the property, and the defendant after service of notice of the hearing shall have willfully disposed of the property, removed or permitted the removal of the property from the State of North Carolina, or caused or permitted its willful damage or destruction, the defendant may be found in contempt of court and may be fined or imprisoned by the court as provided by law.
(b) Waiver of the rights to notice and hearing shall not be permitted except as set forth herein. At any time subsequent to service of the notice of hearing provided in subsection (a), the clerk of court, upon the request of the plaintiff, shall mail to the defendant at his last known address a form by which the defendant may waive his right to the hearing. Upon the return of the form to the clerk of court, bearing the signature of the defendant and that of a witness to the defendant's signature (which witness shall not be a party to the action or an agent or employee of a party to the action), the clerk in his discretion may dispense with the necessity of a hearing and may proceed to issue the order of seizure prescribed by G.S. 1-474.
(c) In addition to any other forms substantially complying with the requirements of the preceding subsections, form (1) below may be used to give the notice provided for in subsection (a) above and form (2) below may be used to waive the hearing as provided in subsection (b) above:
(1) READ THIS NOTICE.
WARNING: DO NOT WILLFULLY DISPOSE OF, REMOVE OR PERMIT THE REMOVAL FROM THE STATE OF NORTH CAROLINA, OR CAUSE OR PERMIT WILLFUL DAMAGE OR DESTRUCTION OF THE PROPERTY DESCRIBED BELOW BECAUSE YOU MAY BE HELD IN CONTEMPT OF COURT AND MAY BE FINED AND IMPRISONED.
To: ______________________(Defendant).
If you want to present reasons why you should not have the property described below taken from you, then you should appear at a hearing to be held before the undersigned clerk of court at ______ o'clock ____ .M. on the ____________ day of________, ____, at the __________ County Courthouse because ________________ (Plaintiff) has sworn that you wrongfully hold the following property and that he is entitled to it:
(Description of Property)
__________________________________________________________
__________________________________________________________
__________________________________________________________
__________________________________________________________
At the hearing the plaintiff will present evidence, and you are allowed to present evidence. You may bring an attorney to this hearing. Upon the basis of the evidence presented, the clerk will decide whether or not to issue an order directing the sheriff to take the property until a trial on the merits is held. You are hereby ORDERED:
a. Not to willfully dispose of the property;
b. Not to remove or permit its removal from the State of North Carolina; and
c. Not to cause or permit its damage or destruction.
If you fail to comply with this order, and it is finally determined that the plaintiff is entitled to the possession of the property, you may be guilty of contempt of court and may be fined or imprisoned as provided by law.
If you have any questions about the hearing, you may contact an attorney or the clerk of court prior to the hearing.
(Certificate of Service)
(2) VOLUNTARY WAIVER OF HEARING.
To ______________________________ (Defendant).
You have been served with a notice that a hearing will be held before the undersigned clerk of court at __________ o'clock ____ .M. on the __________________ day of________, ____, at the ____________ County Courthouse to determine if _____________ (Plaintiff) is entitled to the possession of the following described property until a trial on the merits is held
(Description of Property)
__________________________________________________________
__________________________________________________________
__________________________________________________________
__________________________________________________________
If you do not wish to object to the plaintiff's right to the possession of this property until a trial on the merits is held, you may waive your right to the hearing by signing the statement below, having your signature witnessed by any person who is not a party or an agent or employee of a party to this action and returning it to the undersigned clerk of court by mail or in person prior to the date set for the hearing.
______________________________
Clerk of Superior Court
I, _________, do hereby voluntarily waive and relinquish my right to the hearing described above.
______________________________
Defendant
Witness:
(Name)
_____________________________________________
(Address)
_____________________________________________
(1973, c. 472, s. 2; 1999-456, s. 59.)