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.
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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
Responding to Motions for SJ Part 3
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If they File a Motion for Summary Judgment
“Do I need to respond to their Motion for Summary Judgment or can I file a motion to dismiss at this point?”
I received this question in a teleconference, and it brings up three extremely important issues that every person defending himself or herself from debt collectors needs to keep in mind. First, the comparative functions of a Motion to Dismiss and Motion for Summary Judgment. Second and more generally, the importance of responding to every motion or action taken by the debt collectors, and third, still more generally, the level of effort you need to put into your defense. Here’s the whole question as it was asked:
I requested discovery and responded. A few weeks later, they filed a motion for summary judgment with an affidavit for indebtedness (which was not included in their discovery), a bill of sale and assignment (which does not include any amounts or any account information), and a copy of a 2008 card statement. Do I need to respond to their Motion for Summary Judgment? Or can I I file a Motion to Dismiss at this point?
Motions to Dismiss vs. Motions for Summary Judgment
There is a lot of confusion about motions to dismiss and motions for summary judgment, even among some experienced lawyers. To put it very simply, regardless of what a party filing a motion calls it, if the motion makes reference to, or depends in any way for its outcome, on matters other than the pleadings, the motion is to be considered a motion for summary judgment. That means the motion should follow the rules regarding motions for summary judgment, and you have the time permitted by the rules for summary judgments (generally longer) rather than responding to motions to dismiss (generally shorter).
The pleadings consist of the Petition, Answer, Counterclaim and Reply to Counterclaim. For brief videos discussing each type of motion, see “Motions to Dismiss” and “Motions for Summary Judgment.”
If there is any important fact in the motion that is not also in one of the pleadings, the motion should be treated as a motion for summary judgment. Thus a motion to dismiss is not the correct motion to file when the other side files a motion depending on undisclosed discovery or when the only evidence it provides in discovery would not be enough to prove its case.In this case, where the debt collector has already filed a motion for summary judgment, you must respond in opposition to their motion for summary judgment and, in the same response, file a “cross-motion” for summary judgment.
The Need to Respond
Whenever the debt collector files a motion of any sort you need to respond to it.
Theoretically, if you filed a motion to dismiss, the court might look at your motion first, decide that the debt collector has no case, and dismiss the action as a whole. That would be easy and convenient for you. There’s too good a chance, however, that the judge will consider his or her convenience before considering yours. In fact, you should take that as a given – as something that will definitely happen. You should expect the judge to rule on the easiest thing available and skip everything else – and what’s easier than an uncontested motion? Therefore you must oppose any motion the other side files. In my opinion this is especially important when you’re a “little guy” taking on a “bigger guy.” The courts are – often if not always – prejudiced in favor of the big guy, and you cannot afford to leave an “easy out.”
Level of Effort
I am often asked variations on, “should I go ahead and… ‘X’ or wait until… ‘Y’ happens?” Should you ever wait for either the other side to take some action or for the court to rule on something? Generally, NO. There are two reasons for this: time is always limited; and it is important to keep the initiative in litigation as much as possible.
Time Is Limited
Whether or not the court enters a “scheduling order” explicitly stating when things are due, every case is on a “time clock.” You cannot waste time. Judges will often wait until a few days before the time set for trial to rule on motions for summary judgment. I do not know why this is so – but it is simply a fact, and so it means that much of trial preparation, motions, discovery and all the rest, are conducted after a motion to dismiss or for summary judgment has been filed. You simply cannot wait for a court ruling.
Waiting for the other side is much the same. Litigants are always looking for advantages, and if they get the sense that you are going to wait for them, the debt collector will very likely take advantage of that fact. They may simply delay until you have no more time to do what you need to do, or they may delay until they have time to serve discovery on you – or take some other action which takes control of the case.
Keep the Initiative
Keeping the initiative is extremely important in litigation. It is discouraging to them, and encouraging to you, to be “calling the shots.” When you do, you can take the time you need to figure things out, you can think strategically rather than reactively, and you open up a long, weary path for the other side. When you keep working, you show the other side that continuing to chase you will be expensive, risky and… annoying. You heighten their sense that they should be spending their time chasing easier victims – or should find something actually good to do with their time (maybe, eventually). And finally as you spend effort on your case you support your own morale and you learn more about your case and the law.
Conclusion
For all these reasons, you should take what Tony Robbins calls “massive action.” You should take every action you can to achieve your victory. Let the other side consider how much it is costing in time and money to respond to you. If they get the sense you’re thinking that way they are much more likely to drop your case and look for greener pastures.
Entry of Appearance and Other Red Tape
The way you let the court and other side know, formally, that you are going to defend yourself, is by filing an “Entry of Appearance.” This video discusses this requirement and some other “red tape” like how days are counted.
Debt Collector Dirty Tricks
Debt Collector Dirty Tricks to Get You to Default
Have you been tricked into skipping your court date? or are they telling you you don’t need to be there? It might be a trick. Debt collectors make the huge majority of their money – almost all of it – off of people who give up and do not defend themselves. They know it and do everything they can to make people default – and sometimes they use extremely questionable tactics. This video tells you how to recognize tricks and how to respond.
And…
Intimidating Tactics of Debt Collectors in Litigation
“Frivolous” Defenses and Other Intimidation Tactics of Debt Collectors
When Defending Debt Cases Pro Se
When you’re defending (or thinking about defending) yourself pro se, the debt collector may try to intimidate you by suggesting that whatever you’re saying is “frivolous” or ridiculous in some way. Of course I do not suggest that you be casual or careless in your defense, but remember that debt collectors make their money by scaring people like you into giving up. They greatly over-state the risk to you of defending yourself, as in fact most of the time the court will simply not penalize you for defending yourself.
And no one makes more frivolous arguments that the debt collectors.
Check out our materials for things you can do if debt collectors try these on you.. Follow them and you won’t have to worry about making frivolous or baseless arguments or allegations.
Repairing Credit after Litigation
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Procedure for Moving to Vacate
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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