As long as there is substantial evidence as to both issues, the motion to dismiss should be denied if the evidence only raises a suspicion or conjecture as to either or both elements, the motion should be granted. “Substantial evidence” has been defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Upon a defense motion to dismiss for insufficient evidence, the question to be decided by the judge is whether there is “substantial evidence” of: (i) each essential element of the offense (or lesser-included offense) and (ii) the identity of the defendant as the perpetrator of that offense. Regardless of whether it is styled as a motion to dismiss, motion for nonsuit, or motion for directed verdict, the legal effect is substantially the same. 15A-1414 (motion to dismiss after verdict or set aside verdict). There is little or no practical difference between the two. 15-173 (“Demurrer to the evidence,” allowing defendant to “move to dismiss the action, or for judgment as in case of nonsuit” after the state has rested its evidence). 15A-1227 is fundamentally the same as the motion described in G.S. The judge “must rule on a motion to dismiss for insufficiency of the evidence before the trial may proceed.” G.S. Failure to make a motion to dismiss at the close of the state’s evidence or at the close of all the evidence does not bar the defense from making a motion at either of the other two later times. This motion can be made: (i) at the close of the state’s evidence (ii) at the close of all the evidence (iii) after a guilty verdict has been returned and before the court enters judgment or (iv) after discharging the jury without a verdict and before the end of the court session. 15A-1227, the defendant may make a motion to dismiss the case on the grounds that there is insufficient evidence to sustain a conviction. This will also involve filing a separate motion with the court to ask for an extension of the automatic stay, assuming that you file within a year of the dismissal.Pursuant to G.S. You can file again as soon as you qualify for either Chapter 7 or Chapter 13. However, if you have suffered a substantial financial blow and cannot convert to Chapter 7, this may be your only option if you cannot get a hardship discharge. Until and unless you file again, you will lose the protections provided by bankruptcy, such as the automatic stay. This discharge is rarely granted but may be worth exploring if you have few other options.įailing to respond to a motion to dismiss likely will result in a dismissal without prejudice, which allows a debtor to refile at any point. A hardship discharge is only available if the circumstances causing the hardship were outside the debtor’s control. Justia offers a lawyer directory to simplify researching, comparing, and contacting attorneys who fit your legal needs.ĭebtors who are facing extreme challenges may apply for an early discharge if they cannot modify their plan, and they have paid creditors to the extent that they would have paid them in a liquidation bankruptcy under Chapter 7. It is usually a good idea to hire a bankruptcy lawyer in any Chapter 13 bankruptcy, but especially when defending against a motion to dismiss. They might also explain why the situation that disrupted their payments was unforeseen and temporary. If they are arguing that they can solve the problem, the debtor will want to propose a clear plan for addressing it. This might involve providing copies of pay stubs that show deductions from their wages to make payments, for example. If they are arguing that the trustee is wrong, they should carefully document the reasons why the trustee is unjustified in seeking a dismissal. They usually have just 21 days to respond, and it is critical to comply with this deadline.Ī debtor responding to a Chapter 13 motion to dismiss might argue that the trustee is wrong, or they might argue that they can solve the problem. Fortunately, a debtor has an opportunity to object to this motion. This means that their debts would not be discharged because the case would be considered unsuccessful. If a debtor fails to keep up with payments under their repayment plan in a Chapter 13 bankruptcy, the bankruptcy trustee may file a motion to dismiss their case.
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