Tag Archive for: equitable

Should I Buy Your Motion to Dismiss Pack?

Short Answer: Only if you need to file a motion to dismiss.

Long Answer – As follows:

When Should One Purchase our Motion to Dismiss Pack?

A lot of people buy our Motion to Dismiss Pack on the theory that they want the case against them to go away. It isn’t as simple as that. The motion to dismiss pack is applicable to situations where (1) you have filed a counterclaim and the debt collector moves to dismiss it, or (2) you have some legal basis for arguing that even if everything the petition against you is considered true the debt collector does not have a right to collect from you.

The first of these possibilities – that you are defending against a motion to dismiss – is obvious. If they want to dismiss, you will probably want to defend against that. Your motion to dismiss their claim is more of the question.

Purpose of Motion to Dismiss

A motion to dismiss is a way to “test the adequacy of the petition.” It is NOT a way to test whether the debt collector has evidence to support its lawsuit. Motions to dismiss are therefore appropriate, most generally, when you have a challenge to the company’s right to sue you in a specific court or in general, or when you have a challenge to the court’s power over you. There are also what are known as “equitable” considerations we will discuss.

The Debt Collector’s Right to Sue You

The main way this comes up is in jurisdictions where they have passed regulations on debt collectors which the collector has not followed. Most typically this is an issue of registering or not. Several states require debt collectors to register in some way before pursuing debt – and debt collectors often ignore those regulations. If yours did, a motion to dismiss on that basis would be a good idea.

Another way the right to sue you comes up – much less frequently – is that the petition fails to allege ownership of the debt. This could happen, for example, where ABC Collectors are suing you on a Citibank credit card. If they allege in the petition that they bought the debt, then you will want to find out what evidence they have, but this is part of the suit and not a motion to dismiss. If they fail to allege why you’re supposed to owe them on a debt apparently owing to Citibank, a motion to dismiss is probably in order.

The Court’s Right to Hear the Case

You may want to challenge the court’s power to hear the case against you. This arises in two ways. First, the suit could be brought somewhere other than the jurisdiction in which you live. You live in X county, and they bring suit in Y county and you never lived there. That would likely deprive the court of jurisdiction over you and constitute a violation of the Fair Debt Collection Practices Act.

The other, more common, reason for this sort of motion to dismiss has to do with service. Were you served correctly? And this question can be rather complicated. For present purposes, we merely say that a motion to dismiss is the appropriate way to challenge the court’s power over you, and this is a motion you would want to file before taking any other action in the suit. If you think you were not served properly, in other words, you will probably want to file a motion to dismiss.

“Equitable” Circumstances

There are certain gray areas that might be appropriate for a motion to dismiss, and these are called “equitable” considerations.

“Equity” is a historical reference to the way courts used to be in England, but for our purposes they refer to something more like moral rightness. If the debt collector waited too long to bring suit, if it did something to prevent you from making payments, or if you settled the case previously and they still sued you might all be examples of equitable defenses. While they DO involve evidence beyond the pleadings (the normal boundary line for motions to dismiss), you could probably bring these things as motions to dismiss. You would also be wise to plead them as “affirmative defenses” in your answer if you file an answer

What Motions to Dismiss are NOT for

You don’t file a motion to dismiss because you aren’t satisfied with attachments to the debt collector’s petition or don’t think they have the proof. Yes, you’ll attack their case – but later, and in another way. You don’t file a motion to dismiss because you just want the case to go away. And you don’t BUY a motion to dismiss pack here as an inexpensive way to defend the case in general. Our motion to dismiss pack is a specific product aimed at a specific situation. If it doesn’t apply to your situation, you will simply want to get the Gold Debt Litigation Membership and start doing the things you need to do to win the case.

Res Judicata Estoppel and Claim Preclusion

Res Judicata, Estoppel, Claim, and Issue Preclusion

I often talk about the advantages of pushing a debt defense to the point where the debt collector dismisses the case “with prejudice.” What is this advantage and why is it so important? It has to do with something called “res judicata” or “claim preclusion.” It is important for pro se litigants to understand these and other equitable concepts, including the doctrines of unclean hands and laches.


Very basically, “estoppel” means “prevention.” You can be estopped from doing lots of things for lots of reasons, but the issue tends to come up in mainly two ways: estoppel for some sort of moral reason; or “collateral estoppel” (also known as “issue preclusion”). These are “equitable” issues that exist apart from any actual statutes (laws) that may also apply.


In ancient English law (which is the basis of American law), people sometimes regarded the concepts of the law as unchangeable. If the law provided that a son would inherit from his father upon his father’s death, for example, then that legal right would attach no matter how the father’s death occurred. As you might imagine, allowing that idea its full sway could lead to some surprising, and very morally wrong, results. As a result, the doctrine of “Equity” was born. And equity simply means that the court, as an extension of moral order, could not allow itself to be an instument of evil purposes and that it also had a right to protect its efficiency or the power of its rulings.

Unclean Hands, Laches, and other morality-based reasons for Estoppel

“Unclean hands” means you’re asking the court to do something to lock in an advantage you obtained immorally. So, for example, you may have heard that if you kill someone you are not allowed to inherit from them. An example from debt law would be that, if you prevent someone from paying, you might be estopped from suing them for non-payment. It comes up a lot in mortgage foreclosure. For more, look at: Using the Defense of Unclean Hands in Debt Litigation.

“Laches” is also a morality-based defense, but in this case it involves delay. What laches requires is an “unreasonable” delay during which some event harmful to the defendant’s ability to defend himself or herself occurs. The defense is even more powerful if the harmful event is somehow known or expected by the plaintiff. If the delay is unreasonable and your bank burns down, destroying proof of payment of a debt, for example, this might create a defense of laches. A debt collector purchasing a debt and then waiting till the original creditor destroyed its records of the account would be even more powerful.

Notice that laches is different than statute of limitations. Statutes of limitations are legally determined time limits (and are themselves subject to equity-based attack). Statutes of limitations do not depend upon “unreasonable” delay, damage to the defense, or other equitable considerations. They are designed (by laws passed by legislatures) to allow time to bring finality, eventually, so that people can make plans – eventually – without being haunted by their alleged wrongs forever.

Equitable defenses are “affirmative” defenses – you must plead and prove them. In most states that means that you must plead the facts constituting the entire defense in your Answer as an affirmative defense. And they can be attacked by motion to dismiss.

Doctrines of finality

Collateral estoppel (now generally called “issue preclusion”) and res judicata (“claim preclusions”) are court-administered doctrines of “finality.”Basically the rule is that, where a court had a right to decide an issue (it was of “competent” jurisdiction), the parties (or people whose right depends on the rights of the parties – this is called “being in privity”) are precluded (prevented) from relitigating it.

Issue preclusion and claim preclusion are slightly different from each other. Issue preclusion depends on the court having considered a specific legal issue and actually deciding it one way or the other. It doesn’t have to have done so explicitly, however – if the ruling was necessarily decided as part of another issue or ruling – that is, if the only way a court could have ruled about some other issue was to have believed a certain, disputed, set of facts, then the issue will probably be precluded, and the two parties must accept that ruling and that determination of the facts (although they could appeal it, of course). If, for example, you attack a debt collection proceeding based on the debt collector’s suing you before verifying the debt, you may be able to get the case dismissed on that basis. The question of whether the debt collector is a debt collector would then be precluded if you later sued it for violation of the Fair Debt Collection Practices Act (FDCPA). This keeps the parties from fighting about the same legal issues over and over.

The purpose of claim preclusion is to require the parties to bring all the claims they are supposed to in one lawsuit. This allows the court to consider all the facts and all the rights, and come up with one, final resolution to the entire conflict. A classic example of that would be conflicting claims coming out of an automobile accident. If two people are sued in the same car crash, and one brings suit (in a court with “competent” jurisdiction to hear the case), then the other must defend and bring a counterclaim for her injuries that happened in the same crash. There are fine points of this rule, and different terms for some of them, but in general claim preclusion will prevent further litigation of any claim that was, or should have been, made in the first suit.

In debt law, the question is whether you must bring a counterclaim under the FDCPA or risk losing it to claim preclusion. In general, the answer to that is no – you can bring it in a separate action. But if you bring one claim under the FDCPA, you probably have to bring all of them – you cannot safely try to divide your claims against the other side.

Note that the affirmative defense example above, where you sought verification and they brought suit without verifying, straddles this line. Could you get the case dismissed without creating claim preclusion issues for your later suit under the FDCPA? Probably. But if you sought damages or other remedies under the FDCPA as part of this defense, you might be crossing the line. They write law school tests about questions like that, and it is one reason I always preferred to bring all counterclaims and defenses in the defense when I was practicing.


Courts have a number of social policies that control what they do, but there are two main policies you must consider: justice and finality. I have spoken elsewhere of the policy of deciding cases “on the merits” (based on real justice) rather than “technicalities,” and this, for example, is why motions to vacate defaults often work. But on the other hand is “finality” – the desire of courts to save their own resources and to have an end to litigating over past events and certainty going into the future. It is important to be aware of how the courts balance these two, opposing, goals.