Civil Practice – Motion for Relief – Untimely – Subject Matter Jurisdiction – Credit Card Debt

Portfolio Recovery Associates, LCC v. Hammonds (Lawyers Weekly No. 12-16-0442, 11 pp.) (Robert C. Hunter, J.) Appealed from Cumberland County District Court. (Kimbrell Kelly Tucker, J.) N.C. App. Unpub. Full-text opinion.

Holding: The pro se defendant filed her motion for relief under N.C. R. Civ. P. 60(b) exactly one year after entry of the final judgment against her. Where all of the facts which informed defendant’s Rule 60(b) arguments were available to her at the time of trial had she exercised due diligence, and where the new legal arguments which defendant raised in her Rule 60(b) motion could also have been raised at trial, the trial court did not abuse its discretion when it denied defendant’s Rule 60(b) motion as untimely.

We affirm the denial of defendant’s motion for relief.

A motion for relief under Rule 60(b) “shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment.” What constitutes a reasonable time depends on the circumstances of the individual case. Here, there are no extraordinary circumstances which indicate that the trial court abused its discretion in denying defendant’s motion as untimely.

In challenging the trial court’s subject matter jurisdiction, defendant cites Credigy Receivables, Inc. v. Whittington, 202 N.C. App. 646, 689 S.E.2d 889 (2010), to support her claim that plaintiff lacked standing because the debt at issue was not actually incurred by defendant, and, therefore, plaintiff cannot establish that an injury in fact occurred. Defendant’s argument rests solely on her factual claim that the debt was not hers. The trial court found as fact that defendant was indebted to plaintiff and that defendant had affirmed the debt by making payments for several years.

Defendant did not appeal from the judgment in which those findings were made, nor does she provide any evidence that would contradict those findings. Consequently, defendant has failed to establish that plaintiff did not have standing to bring the claim against her. Defendant’s argument that the trial court lacked the requisite subject matter jurisdiction to hear this case and enter judgment is without merit.

Affirmed.