State Employees' Credit Union, Inc. v. Gentry, 75 N.C. App. 260

330 S.E.2d 645 (1985) · Court of Appeals of North Carolina · June 18, 1985 · No. 841OSC1035

Summary

The North Carolina Court of Appeals held that Interstate Securities Corporation did not have a statutory right to intervene as an attaching creditor because it had not complied with the statutory attachment procedures. The court also held that Interstate's motion to intervene under North Carolina Rule of Civil Procedure 24 was untimely because it was filed after entry of default, and that the garnishee's motion to join attaching creditors was moot.

Holdings

  1. Interstate did not have a statutory right to intervene because it was not an attaching creditor. Its notice of levy was insufficient process, and it had not complied with the statutory procedures necessary to establish an attachment lien or interest in the attached property.
  2. Interstate's motion to intervene under Rule 24(a)(2) was untimely.
  3. The trial court correctly determined that Dean Witter's motion to join all attaching creditors was moot because Interstate had no lien on the property and was the only attaching creditor in the action.

Questions Presented

  1. Whether Interstate Securities Corporation had a statutory right to intervene as an attaching creditor under N.C. Gen. Stat. § 1-440.33(g).
  2. Whether Interstate had a right to intervene under North Carolina Rule of Civil Procedure 24(a)(2).
  3. Whether Interstate's motion to intervene was timely when filed after entry of default and whether its failure to timely file the required pleading under Rule 24(c) affected intervention.
  4. Whether Dean Witter Reynolds's motion to join all attaching creditors was moot and whether any lien-superiority issue remained.

Disposition

affirmed

Cases Cited (11)

  • Corley v. Jackson Police Dept., 755 F.2d 1207 (5th Cir. 1985)(followed)
  • Spring Constr. Co., Inc. v. Harris, 614 F.2d 374 (4th Cir. 1980)(followed)
  • NAACP v. New York, 413 U.S. 345, 93 S. Ct. 2591, 37 L. Ed. 2d 648 (1973)(followed)
  • South v. Rowe, 102 F.R.D. 152 (N.D. Ill. 1984), aff'd in part, rev'd in part, 759 F.2d 610 (7th Cir. 1985)(followed)
  • U.S. v. Associated Milk Producers, Inc., 534 F.2d 113 (8th Cir.), cert. denied, National Farmers' Organization, Inc. v. U.S., 429 U.S. 940, 97 S. Ct. 355, 50 L. Ed. 2d 309 (1976)(followed)
  • Black v. Central Motor Lines, Inc., 500 F.2d 407 (4th Cir. 1974)(followed)
  • Berta v. Highway Comm., 36 N.C. App. 749, 245 S.E.2d 409 (1978)(followed)
  • Battle v. Clanton, 27 N.C. App. 616, 220 S.E.2d 97 (1975), disc. rev. denied, 289 N.C. 613, 223 S.E.2d 391 (1976)(followed)
  • Bell v. Martin, 299 N.C. 715, 264 S.E.2d 101 (1980), reh'g denied, 300 N.C. 380(followed)
  • Kahan v. Longiotti, 45 N.C. App. 367, 263 S.E.2d 345 (1980)(limited)

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