§85B‑4.4. Response and defense by Commission and judgment debtor; proofof conversion or other fraudulent act.
(a) When the Commissionproceeds upon an application as set forth in this Article, counsel for theCommission may defend action on behalf of the Fund and shall have recourse toall appropriate means of defense, including the examination of witnesses. Thejudgment debtor may personally defend the action and shall have recourse to allappropriate means of defense, including the examination of witnesses. Within 30days after service of the application, counsel for the Commission and thejudgment debtor may file responses setting forth answers and defenses.Responses shall be filed with the Commission and copies shall be served uponevery party by the filing party. If at any time it appears there are no triableissues of fact and the application for payment from the Fund is without merit,the Commission shall dismiss the application. A motion to dismiss may besupported by affidavit of any person having knowledge of the facts and may bemade on the basis that the application or the judgment referred to does notform a basis for meritorious recovery under G.S. 85B‑4.2, that theapplicant has not complied with the provisions of this Article, or that the liabilityof the Fund with regard to the particular licensee or transaction has beenexhausted; provided, however, notice of such motion shall be given at least 10days prior to the time fixed for hearing.
(b) Whenever thejudgment obtained by an applicant is by default, stipulation, or consent, orwhenever the action against the licensee was defended by a trustee inbankruptcy, the applicant, for purposes of this Article, shall have the burdenof proving the cause of action for conversion of funds or property or otherfraudulent conduct. Otherwise, the judgment shall create a rebuttablepresumption of conversion or other fraudulent conduct. (1991(Reg. Sess., 1992), c. 819, s. 8.)
§85B‑4.4. Response and defense by Commission and judgment debtor; proofof conversion or other fraudulent act.
(a) When the Commissionproceeds upon an application as set forth in this Article, counsel for theCommission may defend action on behalf of the Fund and shall have recourse toall appropriate means of defense, including the examination of witnesses. Thejudgment debtor may personally defend the action and shall have recourse to allappropriate means of defense, including the examination of witnesses. Within 30days after service of the application, counsel for the Commission and thejudgment debtor may file responses setting forth answers and defenses.Responses shall be filed with the Commission and copies shall be served uponevery party by the filing party. If at any time it appears there are no triableissues of fact and the application for payment from the Fund is without merit,the Commission shall dismiss the application. A motion to dismiss may besupported by affidavit of any person having knowledge of the facts and may bemade on the basis that the application or the judgment referred to does notform a basis for meritorious recovery under G.S. 85B‑4.2, that theapplicant has not complied with the provisions of this Article, or that the liabilityof the Fund with regard to the particular licensee or transaction has beenexhausted; provided, however, notice of such motion shall be given at least 10days prior to the time fixed for hearing.
(b) Whenever thejudgment obtained by an applicant is by default, stipulation, or consent, orwhenever the action against the licensee was defended by a trustee inbankruptcy, the applicant, for purposes of this Article, shall have the burdenof proving the cause of action for conversion of funds or property or otherfraudulent conduct. Otherwise, the judgment shall create a rebuttablepresumption of conversion or other fraudulent conduct. (1991(Reg. Sess., 1992), c. 819, s. 8.)
§85B‑4.4. Response and defense by Commission and judgment debtor; proofof conversion or other fraudulent act.
(a) When the Commissionproceeds upon an application as set forth in this Article, counsel for theCommission may defend action on behalf of the Fund and shall have recourse toall appropriate means of defense, including the examination of witnesses. Thejudgment debtor may personally defend the action and shall have recourse to allappropriate means of defense, including the examination of witnesses. Within 30days after service of the application, counsel for the Commission and thejudgment debtor may file responses setting forth answers and defenses.Responses shall be filed with the Commission and copies shall be served uponevery party by the filing party. If at any time it appears there are no triableissues of fact and the application for payment from the Fund is without merit,the Commission shall dismiss the application. A motion to dismiss may besupported by affidavit of any person having knowledge of the facts and may bemade on the basis that the application or the judgment referred to does notform a basis for meritorious recovery under G.S. 85B‑4.2, that theapplicant has not complied with the provisions of this Article, or that the liabilityof the Fund with regard to the particular licensee or transaction has beenexhausted; provided, however, notice of such motion shall be given at least 10days prior to the time fixed for hearing.
(b) Whenever thejudgment obtained by an applicant is by default, stipulation, or consent, orwhenever the action against the licensee was defended by a trustee inbankruptcy, the applicant, for purposes of this Article, shall have the burdenof proving the cause of action for conversion of funds or property or otherfraudulent conduct. Otherwise, the judgment shall create a rebuttablepresumption of conversion or other fraudulent conduct. (1991(Reg. Sess., 1992), c. 819, s. 8.)
