Got served with summary ejectment

[carolinacountry]

We're in North Carolina. We've been having problems with the landlords for the last month and a half. When my husband went to pay the rent on the first, he gave our notice. A little while later, a note was stuck in our door telling us we were evicted. Payment was stopped on the check the following morning. Saturday, landlady came up and started screaming at me (in front of my 2 year old). Tonight at 10:30 a sheriff's deputy knocked on our door and served my husband with a summary ejectment complaint.

The complaint is not accurate. She claims we breached the lease even though our lease ran out in 2006 and we never signed another one. She also claims the payment was stopped after she had already deposited the check.

We did not get a pay or quit notice if that matters (researching it now).

So now my husband has to go to court next Monday over this or get a default judgment against us. Plus we just submitted an application for another place and will probably lose it because of this being filed.

What can we do? Should we fight it on the grounds the complaint is inaccurate? On the grounds we weren't given a pay or quit?

 

[jacksgal]

Your putting a stop payment on rent check thus not paying rent. Does not move things in your favor

 

[jacksgal]

Evictions in North Carolina
As in alll states, North Carolina does not permit landlords to use "self-help" eviction. That is, a landlord cannot change the locks or otherwise impede the tenant's ability to enter the premises (except in order to maintain or repair the premises), even if the tenant fails to pay the rent.


In order to evict the tenant, the landlord must obtain a court order through a process called "summary ejectment". (N.C. Gen. Stat. §§ 42-26 to 36.2)

The landlord cannot evict a tenant in retaliation for certain protected actions. These protected actions include:
(1) Complaints made to the landlord, his employee, or his agent about conditions or defects in the premises that the landlord is obligated to repair; (2) complaints to a government agency about a landlord's alleged violation of any health or safety laws;
(3) attempts to exercise rights described in the lease in state or federal law; and
(4) attempts to become involved with any tenants' rights groups. If the tenant has undertaken any of these actions in good faith and in the six months before the eviction proceeding, the tenant should bring this to the court's attention. (N.C. Gen. Stat. §§ 42-36.1 to 36.3)

If a landlord wants to evict a tenant who will not leave voluntarily, then he must file a Magistrate's Summons and Complaint in Summary Ejectment in Small Claims (Magistrate's) Court. The tenant must be served with the Summons and Complaint by the Sheriff's Office, either personally or by posting. The Summons will state the date, time, and place for the court hearing. Small Claims Court hearings are informal, but both parties may have an attorney, present evidence, and subpoena witnesses.

The tenant may have defenses to the eviction action depending upon which basis for eviction the landlord sets out in the Complaint. The tenant may also file written counterclaims against the landlord. Examples of such counterclaims include: 1) a rent abatement for the landlord's failure to make repairs for which he was responsible, after having been properly notified by the tenant; and 2) money damages if the landlord attempted to evict the tenant illegally and damaged him in some way.

Either party has ten days in which to appeal the magistrate's decision to District Court for a new trial. During this ten-day appeal period, the landlord cannot make the tenant move. If the tenant properly appeals the judgment to District Court and pays the rent when due to the Clerk of Superior Court, then he can retain possession of the premises. The tenant may also be required to pay any undisputed past-due rent to the Clerk of Court, unless he files the appeal as an indigent.

If the eviction is based upon nonpayment of rent and the judgment is entered more than five working days before the day when the next rent payment is due under the lease, then the tenant must also pay the pro-rated rent for that time period to stay execution of the magistrate's judgment for possession pending trial.

If the tenant does not appeal the magistrate's judgment within ten days or loses on appeal, then the landlord may evict the tenant by obtaining a Writ of Possession of Real Property issued by the Clerk of Court. The writ directs the Sheriff to physically remove the tenant and his personal property from the premises. The Sheriff, not the landlord, is the only one who can remove the tenant and/or his personal property from the rental premises. The landlord cannot force the tenant to move at any stage of the eviction process.