Quash means to nullify, void or declare invalid. The procedure is used in both criminal and civil cases when there is an irregularity or defect in procedures.
Wage garnishment is a legal procedure in which a person's earnings are required by court order to be withheld by an employer for the payment of a debt, such as a judgment. The usual mode of attacking a garnishment directly is by a motion to quash or discharge the writ.
This form is a generic motion and adopts the "notice pleadings" format of the Federal Rules of Civil Procedure, which have been adopted by most states in one form or another. This form is for illustrative purposes only. Local laws should be consulted to determine any specific requirements for such a form in a particular jurisdiction.
Title: Understanding the North Carolina Motion of Defendant to Discharge or Quash Writ of Garnishment for Failure to Serve Copy of Writ on Defendant and Notice of Motion Introduction: In legal proceedings in North Carolina, a defendant may have the opportunity to file a Motion to Discharge or Quash a Writ of Garnishment. This motion is particularly relevant when the plaintiff fails to properly serve the defendant with a copy of the writ and notice of motion. This article aims to provide a comprehensive understanding of the motion, its purpose, and any variations that may exist within this context. I. The North Carolina Motion of Defendant to Discharge or Quash Writ of Garnishment for Failure to Serve Copy of Writ on Defendant and Notice of Motion: 1. Definition and Purpose: — The motion allows a defendant to challenge the validity of a writ of garnishment when the plaintiff has failed to serve them with both the writ itself and the accompanying notice of motion. — By filing this motion, the defendant seeks to have the writ of garnishment discharged or quashed due to the plaintiff's procedural error. 2. Key Requirements for Filing the Motion: — Failure to serve: The defendant must be able to prove that the plaintiff did not properly serve them with a copy of the writ of garnishment. — Lack of notice: It is crucial for the defendant to demonstrate that they did not receive notice of the motion associated with the writ. 3. Legal Basis and Relevant Statutes: — The North Carolina General Statutes: Section 1C, Chapter 1, Article 35 provides guidance on garnishment procedures and related motions. — The court considers the defendant's right to due process, ensuring fair notice and opportunity to respond as mandated by the Fourteenth Amendment of the U.S. Constitution. II. Types of North Carolina Motion of Defendant to Discharge or Quash Writ of Garnishment for Failure to Serve Copy of Writ on Defendant and Notice of Motion: 1. Motion to Discharge the Writ of Garnishment: — Filed when the defendant believes that due process rights have been violated, primarily due to the plaintiff's failure to serve them with a copy of the writ. — Aims to have the court remove or eliminate the effects of the garnishment order. 2. Motion to Quash the Writ of Garnishment: — Similar to the motion to discharge, this alternative seeks to nullify or invalidate the garnishment order. — Specifically challenges the process, highlighting the plaintiff's failure to serve them with both the writ of garnishment and the notice of motion. Conclusion: The North Carolina Motion of Defendant to Discharge or Quash Writ of Garnishment for Failure to Serve Copy of Writ on Defendant and Notice of Motion provides defendants with a recourse to challenge a garnishment order when the plaintiff fails to meet their legal obligations. By understanding the various types of motions under this context, defendants can take appropriate legal action to protect their rights to due process.
