State Codes and Statutes

State Codes and Statutes

Statutes > North-carolina > Chapter_1 > GS_1-474_1

§1‑474.1.  Notice of hearing; waiver; permissible form of notice andwaiver.

(a)        The clerk of court,upon the request of the plaintiff, shall issue a notice to the defendantsetting a time and place for a hearing before the clerk which shall not be lessthan 10 days from the date of service of said notice upon the defendant. Thenotice shall be served on the defendant in any manner provided by the Rules ofCivil Procedure for the service of summons. Upon the request of the plaintiffthe notice shall contain an order enjoining the defendant from willfullydisposing of the property in any manner, from removing or permitting theremoval of the property from the State of North Carolina, or from causing orpermitting willful damage or destruction of the property. If in a trial on themerits it is determined that the plaintiff was entitled to the possession ofthe property, and the defendant after service of notice of the hearing shallhave willfully disposed of the property, removed or permitted the removal of theproperty from the State of North Carolina, or caused or permitted its willfuldamage or destruction, the defendant may be found in contempt of court and maybe fined or imprisoned by the court as provided by law.

(b)        Waiver of therights 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 insubsection (a), the clerk of court, upon the request of the plaintiff, shallmail to the defendant at his last known address a form by which the defendantmay waive his right to the hearing. Upon the return of the form to the clerk ofcourt, bearing the signature of the defendant and that of a witness to thedefendant's signature (which witness shall not be a party to the action or anagent or employee of a party to the action), the clerk in his discretion maydispense with the necessity of a hearing and may proceed to issue the order ofseizure prescribed by G.S. 1‑474.

(c)        In addition to anyother forms substantially complying with the requirements of the precedingsubsections, form (1) below may be used to give the notice provided for insubsection (a) above and form (2) below may be used to waive the hearing asprovided in subsection (b) above:

(1)  READ THIS NOTICE.

WARNING:DO NOT WILLFULLY DISPOSE OF, REMOVE OR PERMIT THE REMOVAL FROM THE STATE OFNORTH CAROLINA, OR CAUSE OR PERMIT  WILLFUL DAMAGE OR DESTRUCTION OF THEPROPERTY DESCRIBED BELOW BECAUSE YOU MAY BE HELD IN CONTEMPT OF COURT AND MAYBE FINED AND IMPRISONED.

To: ______________________(Defendant).

If youwant to present reasons why you should not have the property described belowtaken from you, then you should appear at a hearing to be held before theundersigned clerk of court at ______ o'clock ____ .M. on the ____________ dayof________, ____, at the __________ County Courthouse because ________________(Plaintiff) has sworn that you wrongfully hold the following property and thathe 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 thishearing. Upon the basis of the evidence presented, the clerk will decidewhether or not to issue an order directing the sheriff to take the propertyuntil a trial on the merits is held. You are hereby ORDERED:

a.         Notto willfully dispose of the property;

b.         Notto remove or permit its removal from the State of North Carolina; and

c.         Notto cause or permit its damage or destruction.

If you fail to comply with this order, and it isfinally  determined that the plaintiff is entitled to the possession of theproperty, you may be guilty of contempt of court and may be fined or imprisonedas provided by law.

If you have any questions about the hearing, you maycontact an attorney or the clerk of court prior to the hearing.

(Certificate of Service)

(2)        VOLUNTARY WAIVER OFHEARING.

To ______________________________ (Defendant).

Youhave been served with a notice that a hearing will be held before theundersigned clerk of court at __________ o'clock ____ .M. on the__________________ day of________, ____, at the ____________ County Courthouseto determine if _____________ (Plaintiff) is entitled to the possession of thefollowing described property until a trial on the merits is held

(Description of Property)

__________________________________________________________

__________________________________________________________

__________________________________________________________

__________________________________________________________

If you do not wish to object to the plaintiff's rightto the possession of this property until a trial on the merits is held, you maywaive your right to the hearing by signing the statement below, having yoursignature witnessed by any person who is not a party or an agent or employee ofa party to this action and returning it to the undersigned clerk of court bymail or in person prior to the date set for the hearing.

______________________________

Clerkof Superior Court

I, _________, do hereby voluntarily waive andrelinquish my right to the hearing described above.

______________________________

Defendant

Witness:

(Name)

_____________________________________________

(Address)

_____________________________________________

 (1973, c. 472, s. 2; 1999‑456, s. 59.)