Procedure for Moving to Vacate

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Cross-Motions for Summary Judgment

Cross-Motions for Summary Judgment

If you think the debt collector hasn’t shown you any real evidence in the discovery phase – and you’ve filed your motion to compel to eliminate any doubts about what it’s got – then maybe you should file a motion for summary judgment. But what if the debt collector files one first? Then you want to file a “Cross-Motion for Summary Judgment.”

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A Cross-Motion for Summary Judgment is just the same as a (regular) Motion, except that it’s a little more complicated: you both have to prove – in one part – that there are “genuine issues of material fact” about the things they say, and that there is no real dispute about the things you say.

Cross-motions can be on the same issues. For example, you might both be claiming that the undisputed facts show something about the debt, and you might be surprised how often that comes up. Since proof of the debt so often hinges on the ability of the debt collector to use business records it didn’t create, they could argue that the records prove there’s a debt, while you argue that, since they cannot use the records, the proof is that they cannot show you owe the money.

It is also possible for cross motions to be directed at different things: they argue that the proof shows you owe the money, whereas you argue it doesn’t and that they violated the FDCPA.

Responding to Motions for Summary Judgment

Motions for Summary Judgment are among the most dangerous obstacles to justice that people defending themselves pro se from debt collection actions face. If you are facing such a motion, act quickly–you must find and stay within time limits, and response to motions for summary judgment can take some time to write. This video should help.

Motions to Dismiss Part 2

A Critical Legal Device

Motions to Dismiss in Debt Collection Cases, Pt. 2

When you’re being sued on a debt by a debt collector, motions to dismiss can come up in one or both of two ways: you could file one against them – or they could file one against you. More specifically, (1) you could file a motion to dismiss their lawsuit, or (2) they could file a motion to dismiss your counterclaim.  It is also possible that either or both of you could file a motion to dismiss certain affirmative defenses, although this does not happen very often in debt cases.

This is part 2 of a two-part article. Click here for Part One.

Timing – When to File

There are two aspects of time you must consider when filing a Motion to Dismiss (or for More Definite Statement). The first of these is whether you must file your motion to dismiss before filing an Answer. In my opinion it is always a good idea to file a motion to dismiss – on any basis – before filing an Answer.

Motion as to Form of the Petition or the Court’s Power over You

Motions that attack the form are treated differently than motions attacking the legal substance of the petition or counterclaim.

Motions as to Form or Power of Court over You

Any motion that goes to the form or understandability of the claim is usually waived (lost) if you file your Answer before the motion, since if you can answer the petition it is assumed you understood it. Any motion that goes to the court’s power over you – let’s say you are arguing that service on you was legally inadequate – is also waived if you file an Answer before the motion, on the theory that by filing an Answer you are consenting to the court’s jurisdiction over you. If you file your motion to dismiss before filing an Answer, you wait until the court rules on the motion before filing the answer – and you may never have to.

I want to be very specific about this: if you are in Pennsylvania, you must file Preliminary Objections before filing your answer. If you file Preliminary Objections on time, you will almost certainly win your case. Fail to do so and you have a good chance of losing. I have a package regarding preliminary objections for Pennsylvania.

 

 Motion as to Legal Substance or Power of the Court over the Issue

A motion that goes to the substance of the claim or the power of the court to hear that sort of claim can be brought at any time. If the court does not have the right to hear cases of the sort brought against you, your consent would not give it that power even if you wanted to. Federal courts essentially never have jurisdiction over collections issues, and if a debt collector sued you in federal court, your challenge to the court’s jurisdiction would be good even on appeal.

In Plain English

If your motion to dismiss is to something wrong about the claim – it doesn’t have the contract attached or doesn’t include certain necessary allegations, or if it attacks the court’s right to hear a case about you (bad service, etc.) you must bring this motion before answering. To answer means that you are willing to proceed with the deficiencies, and you have waived (lost) your right to complain about them.

If your motion goes to the court’s right to hear any case like the one against you (it’s for debt, and they bring it in federal court, or the allegations do not amount to a violation of the law), you can bring the motion to dismiss at any time.

In either case I recommend bringing your motion to dismiss before answering because it’s safer to do so and because if you win you might not have to answer at all – so it could save you a lot of time. On the other hand, you must answer every count of the petition that you don’t seek to have dismissed.

Argument and Timing

In most states, if you want your motion ruled on, you must first have a hearing. Most courts will not do this on their own. Instead, they require one of the parties (either can do it) to set the motion for hearing and move things forward towards argument and decision. Often, delay will suit a debt defendant, and so often it makes sense to wait to see if the debt collector will set the hearing. But you must watch to make sure you do not miss the hearing date.

The party bringing a motion is ordinarily responsible for getting it heard and ruled on by the court. That means that you would want to contact the court’s clerk or secretary, find a good date and time for argument, and set your motion for hearing on that date and time. On a motion to vacate, for example, if you fail to set the motion for argument, it will probably sit for months without the court taking action – and then the court might dismiss it without comment. In some states a motion to vacate that is not ruled on specifically by the judge is considered denied after a certain time. So motions to vacate must be set and argued. Motions to dismiss are somewhat different. There, you have not filed an answer and are not required to do so until there is a ruling. Practically this means that the plaintiff must set the motion for argument and hearing. Failure to do so might result in the whole case being dismissed for “lack of prosecution.”

Motion to Dismiss by Plaintiff

As mentioned above, the plaintiff (debt collector) could also file a motion to dismiss your counterclaim – possibly your affirmative defenses. This will arise, obviously, after you have filed a counterclaim. Plaintiffs are required to respond to counterclaims just as defendants must answer a petition – or face default judgment. If the plaintiff does not think that the allegations in your counterclaim state a claim against it, it can file a motion to dismiss.

In that case, everything will proceed in just the opposite way as a defendant’s motion to dismiss, except that if you do not get the motion to dismiss denied, the underlying, original case, will continue towards trial.

If you are opposing a motion to dismiss, your general strategy should first be to relate your claims to the 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 defeat the motion.

Sometimes it is not so clear, obviously. Debt collectors are prohibited from various “unfair” or “deceptive” collection practices, and not all of these are specifically enumerated in the law. In that case you will want to find a case involving similar actions where courts have declared the practice illegal. Failing that, you will make the strongest logical argument possible that the action in dispute is unfair or deceptive.

Questions of Law or Fact

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 or she might decide that calling you six times was not unreasonable. That is because the question is not how often you were called (a factual question, any dispute about which should go to the party opposing the motion to dismiss), but whether the number of times called was “reasonable,” a decision of law the judge is supposed to make without favoring either side. For this reason, it makes sense to state the facts strongly and make your best case.

Discovery

Discovery is not delayed by either a motion to dismiss by defendant or plaintiff. Whether you file the motion to dismiss or the plaintiff does, you will still want to continue to conduct discovery. This is also true of all other motions except, perhaps, motions to vacate, where tech

Motions to Dismiss Article and Video

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Motions to Dismiss when Sued for Debt

Motions to dismiss are different from Motions for Summary Judgment Motions. They rely only on the pleadings. This video explains what a motion to dismiss is and how to deal with it if you’re pro se.

 

 

You Can Get A Motions to Dismiss Pack

One of the best defenses to a lawsuit is a motion to dismiss, and often you must file your motion to dismiss before filing an answer or you will lose important rights. On the other hand, the debt collector may well file a motion to dismiss your counterclaim or even affirmative defenses. This Motion to Dismiss Pack helps you file a motion if you need to – or defend against the motion if the plaintiff files on against you.

It contains

  • Instructions
  • Motions to Dismiss in Debt Cases Report
  • Sample Motion to Dismiss Plaintiff’s Claims for Breach of Contract and Account Stated” in pdf and Open Office (Word compatible) formats
  • Sample Memo In Support of Motion to Dismiss in pdf and Open Office (Word-compatible) formats
  • Sample Memo in Opposition to Plaintiff’s Motion to Dismiss Counterclaims in pdf and Open Office (Word-compatible) formats
  • Basic instructions of legal research

These are the things you will need to attack the pleadings of the debt collector and begin your defense of the lawsuit. In many cases you need to do this before filing your Answer or you will lose certain important rights.

Motions to Compel

Motion to Compel–Forcing the Debt Collector to Give You What You Need

First you figure out what you need to prove, then you figure out how to ask the other side for them with interrogatories and requests for documents, but they often try to stonewall you or just ignore your discovery requests. How do you make them give you answers instead of objections? Filing a good motion to compel is often a turning point that forces the debt collector to give up. This video tells you what to do and how.

 

Sample motion to Dismiss

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Motions to Dismiss for Failure to State a Claim

A Motion to dismiss is a request to the court to “kick out” the case against you. It isn’t based on evidence that you have or could produce or show (a motion for summary judgment is the way you do that), but rather is designed to “test the sufficiency of the pleadings.” Debt defendants tend to overuse the motion to dismiss – or to “over-rely” on them. They often do not work, but filing them can be a way to familiarize yourself with the law and to slow the pace of the lawsuit – things which are helpful to pro se debt defendants.

In plain English, a motion to dismiss argues that the plaintiff has not alleged enough facts – even if everything it does allege is considered true – to make a claim against you that the law would recognize. I have, in other articles, compared it to a speeding ticket for “driving 25 mph in a 30 mph zone.” It just isn’t illegal to do that, and the case would get kicked out.

Of course it is rarely so simple. From time to time I suggest possible violations of the Fair Debt Collections Practices Act (FDCPA). For example, I have suggested that including the supposed right to verify in the Petition is deceptive and unfair. Eventually someone will allege that in a counterclaim, and the debt collector will probably file a motion to dismiss, arguing that including that language in the petition does not violate the FDCPA. So you can see from that example that motions to dismiss can be brought against counterclaims as well as claims in a Petition.

Procedure for Motions to Dismiss

Motions to Dismiss are controlled by the Rules of Civil Procedure for your jurisdiction. Find the appropriate rule by looking up “motions” or “motion to dismiss.” You will see that there are many enumerated bases for motions (at least in Missouri). In general, if the argument is that there simply isn’t a right to the relief requested from the court (as in my examples above), you can usually file this motion at any time because the court really lacks the power or authority to do something the law doesn’t allow. If the argument is about whether the court has authority over you, on the other hand (because you weren’t served correctly, for example), you would probably need to bring a motion to dismiss before answering the petition.

You can, and probably should, in general, bring a motion to dismiss before you answer a petition. In other words, if you file a motion to dismiss, you almost certainly do not need to file an Answer. The motion stops the clock on the time for responding. If you lose the motion, the court will order you to respond to whatever part of the petition or claim that remains.

It isn’t always clear who needs to “set” the motion to dismiss for a hearing. In general I suppose it is whoever wants the case to move forward – and that usually means the debt collector. The case will not move forward until the motion to dismiss is resolved. Sometimes courts will dismiss the entire action for “failure to prosecute” if the debt collector does not call the motion. Sometimes the judge will pressure the defendant to argue the motion or will deny it if it isn’t set for argument. This seems to depend on the personality of the judge.

For a sample Motion to Dismiss a simple debt collection, please click here.

Incidentally, these motions are sometimes called “motions to dismiss for failure to state a claim,” and that is the name of federal rule 12(b)(6) (and many state court rules as well, which are usually identical). Remember that you won’t be bringing your motion under federal law but whatever your applicable state law is.

Special Conditions in Pennsylvania Debt Law

I often tell people that they might simply deny every allegation of the petition and put the plaintiff to the burden of proving the case. In Pennsylvania, however, there is a much more powerful method for most debt cases: “Preliminary Objections.”

Preliminary Objections are a form of motion to dismiss based on the inadequacy of the pleadings brought against you. PA Rule of Civil Procedure 1019 requires that a plaintiff bringing a lawsuit based on a writing (which every credit card is) must have the contract attached to it or else include allegations in the petition from which the whole sum of money claimed could be derived.

The only catch to Preliminary Objections is that they must be filed before answering the petition or the objections are considered “waived” (let go). If you are in Pennsylvania, then, you should strongly consider getting my Silver Bullets package (for Pennsylvania, obviously). The package also contains an extremely powerful motion to dismiss any claim for “account stated,” which is the way the debt collectors have used to try to avoid Rule 1019.