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.
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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
