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
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
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.
When is Evidence Evidence
When Can Documents or Testimony be Used against You?
What makes some things “admissible” to be used in court in a trial but other things not? What makes something evidence that can be used for or against you? This video is a very short primer on evidence. Your case will almost certainly be decided on the basis of whether you can keep some things out of evidence – or whether they can get them in.
You Must Object
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Hearsay – Nearly a Silver Bullet
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Mediation in Pro Se Debt Cases
Don’t Lose Your Shirt in Mediation
Mediation, as opposed to arbitration is a form of settlement discussion where another person -preferably who knows something about the law controlling the issues in dispute – can help “bring the parties together” in settlement.
Most frequently this arises in a litigation setting, after suit has been filed, or in divorce, for example, where suit is contemplated. In theory, however, it could happen any time. It just only happens in litigation in practice.
Mediation is sometimes required by the courts as a condition to litigation as a way to increase the chance of settlement, and it can sometimes even be helpful. But much of the time you will be involved with a mediator who pays too much attention to the debt collector’s lawyer and doesn’t know the laws or realities of debt collection himself or herself. What’s a pro se defendant to do? This video will help.
Protect Yourself
Just remember, you never have to settle in a mediation, but if you do, you’re stuck with what you agree to. Go into a mediation with a plan, remember that you have a good chance of winning, and remember also that this will not be your only chance to settle. You should also remember that one of your jobs may be to teach the mediator a little law on debt collection and the rules of evidence. You should be ready to discuss the rule against hearsay in your state and the business records exception and talk about how they apply or not to your case.
Buying Credit Repairs
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Exemptions from Collections
State Law Exemptions from Collection
Try This If You Are Garnished
Collection is an extremely unpleasant thing, and you will want to avoid it if possible. That means not allowing anybody to get a judgment against you.
We don’t include this information here to help you avoid collection, however. This information should help you understand the legal status of your assets for purposes of your negotiation planning. Remember: you should think long and hard about giving a debt collector any protected assets (which all of these exemptions are), but that does not mean you should never do so. These exemptions are the exemptions provided under Missouri law (paraphrased – look up the law for exact statutory language), but different states have very different rules on some of these exemptions (most notably on homesteads). For an exact understanding of all the exemptions under your state’s laws, we suggest you google the term “exemptions from levy” plus your state’s name.
There are specific procedures you would follow in order to claim these exemptions if a levy (garnishment) occurred, but again, we include this information simply as a guide to understanding the legal character of your assets.
513.430 RSMo. 2010 et seq. provides the following exemptions:
1. Household furnishings and goods, clothes, appliances, books… held primarily for personal, family or household use of the debtor or a dependent, not to exceed $3,000 total.
2. A wedding ring worth not more than $1,500, plus other personal jewelry worth no more than $500 total.
3. Any property, of any kind, not to exceed $600 in value in total.
4. Implements, professional books or tools of the trade of the debtor or a dependent worth not more than $3,000.
5. Any motor vehicle worth not more than $3,000.
6. Any mobile home used as the principle residence but not on or attached to property owned by the debtor, worth no more than $5,000.
7. Any unmatured life insurance contracts.
8. Amount of any unaccrued dividend or interest under, or loan value of, any one or more unmatured life insurance contracts.
9. Professionally prescribed health aids for debtor or dependents.
10. Right to receive social benefit, unemployment compensation, or a local public assistance benefit, veteran’s benefits, disability, illness or unemployment benefits, or a stock bonus plan (etc.).
11. Right to receive money or property traceable to a payment on account of the wrongful death of an individual on whom the debtor was dependent (with some limitations).
12. A homestead consisting of a house and appurtenances and land worth not more than $15,000.