§ 93A-19. Response and defense by Commission and judgment debtor; proof of conversion. - North Carolina Statutes

§ 93A‑19.  Response anddefense by Commission and judgment debtor; proof of conversion.

(a)        Whenever theCommission proceeds upon an application as set forth in this Article, counselfor the Commission may defend such action on behalf of the fund and shall haverecourse to all appropriate means of defense, including the examination ofwitnesses. The judgment debtor may defend such action on his or her own behalfand shall have recourse to all appropriate means of defense, including theexamination of witnesses. Counsel for the Commission and the judgment debtormay file responses to the application, 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 or persons having knowledge of the factsand may be made on the basis that the application or the judgment referred totherein do not form a basis for meritorious recovery within the purview of G.S.93A‑17, that the applicant has not complied with the provisions of thisArticle, or that the liability of the fund with regard to the particularlicensee or transaction has been exhausted; provided, however, notice of themotion shall be given at least 10 days prior to the time fixed for hearing. Ifthe applicant or judgment debtor fails to appear at the hearing after receivingnotice of the hearing, the applicant or judgment debtor waives the person'srights unless the absence is excused by the Commission.

(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 trust funds. Otherwise, thejudgment shall create a rebuttable presumption of the conversion of trustfunds. This presumption is a presumption affecting the burden of producingevidence. (1979,c. 614, s. 1; 1983, c. 81, s. 2; 1987, c. 516, s. 8; 1999‑229, s. 9; 2001‑487,s. 23(e).)