This is Part 2 of this Article. Click here for Part 1.
If you are opposing a motion to dismiss, you will probably want to start with an "Introduction" that is a general statement of the facts that shows that justice is on your side. This isn't an argument, however, but rather the strategic arrangement of the facts you have alleged in your counterclaim. They might have been on different pages of the counterclaim, but you put them together to tell your story in a way that is easy to understand. For example, you might say that:
The debt collector repeatedly called me before 7:00 a.m. local time despite my request that it stop doing so. When I requested verification of the debt, the debt collector first ignored and then abused me for "delaying the inevitable" and "being a [fill in the blank]." After I requested that the debt collector cease contacting me pursuant to the Fair Debt Collection Practices Act, the debt collector called me several times, including ... My counterclaim alleges that these actions violated the FDCPA.
A common mistake that pro se defendants (people defending themselves) make is to think that judges can easily understand what you are saying. You should write what you want to say in a way that is obvious even to anyone who does not know anything about your case.
After the introduction, you will want to make a "Statement of Facts" or "Statement of Allegations" which states the facts you have alleged (yes - again) with references to which numbered paragraph they're in. Do you restate every fact you alleged? Of course not. You allege the facts that you think make up the action the debt collector did that you think broke the law.
The introduction is designed to give the judge a brief overview of the facts that shows what the debt collector did that was wrong. The Fact Section gives those facts again, in greater detail, with specific references to the allegations so they're easy to check. You have to make it so easy for the judge to see what you want and why it should be done because it is so much easier for the judge to dismiss your claim than to keep listening to you!
After stating the facts of the case you will want to argue that the facts as you state them broke the law. It's best if you can relate your claims to theactual words of the law under which you are bringing your claim. If the Fair Debt Collection Practices Act says (as it does) that the debt collector must stop calling you at work under certain circumstances, for example, and your claim alleges those circumstances and the fact that the debt collector continued to call, then you will point out that the facts as you allege them are specifically prohibited by the FDCPA: "defendant alleges that the debt collector repeatedly called before 7:00 a.m. local time - the FDCPA specifically makes that illegal at 15 U.S.C.Sec. 1692c(a)(1)."
Sometimes the law is not so clear, obviously.
Debt collectors are prohibited from various "unfair" or "deceptive" collection practices, and not all of these are specifically spelled out by the law. In that case you will want to explain why what you alleged was unfair or deceptive. And if you can find a case involving similar actions where courts have declared the practice illegal you will be ahead of the game. Failing that, you will make the strongest logical argument possible that the action in dispute is unfair or deceptive.Remember that although every fact will be considered in your favor (every "close" question of fact should go your way), the court will decide close questions of law. That means that even if the judge thinks that calling you seven times in an hour is unreasonable and illegal, he might decide that calling you six times was not unreasonable. That is because the question is not how often you were called, but whether the number of times called was "reasonable," a decision the judge is supposed to make. For this reason, it makes sense to state the facts strongly and make your best case.
Again, keep in mind that judges are busy, and not all of them are very smart or particularly concerned with debt collection law.
Check out our Guide to Legal Research and Analysis for a guide to researching and laws and cases in the most effective way. But legal research is more about what you do with what you find, and so this is a primer on legal thinking and analysis as well.
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