Tag Archive for: motion to dismiss

Don’t be a “Verification Sucker” – When You’re Not in Kansas Anymore

When a debt collector sues you as the first thing you hear from it (they can do that), this does not give you a right to dispute and require verification. Your rights are through the legal process, and you must answer the petition or you will be defaulted. Sometimes debt collectors use people’s confusion over their rights and do things which suggest you could dispute the debt. This video discusses your rights.

You would be amazed how often people ask me whether they should “just send a verification letter” to the company or law firm when they get served with a debt lawsuit. Or as one person put it, “now that I’ve called the court to tell them I object, should I just send a verification letter? Or was that enough?”

No. It wasn’t enough – it wasn’t even anything at all.

Dispute and Verification

Click here for a copy of this article in pdf form: Don’t be Verification Sucker

Let’s take a quick step back here and review some facts and some rights.

When a debt collector first contacts you regarding a debt it is attempting to collect, it is required by law to provide you certain information. If the contact is not in writing, it must send you a notice in writing. If the contact is in writing, that contact must contain a notice. That notice must inform you of the debt collector’s identity, the nature and amount of the debt in question, and your right to dispute the debt and require verification. People often refer to this notice as the “verification letter,” although more properly it’s a notice of the right to dispute the debt. If you dispute, they must verify the debt before attempting to collect again, and you have thirty days to dispute the debt.

If they don’t want to attempt to collect again, they don’t need to dispute. It’s a law supposed to prevent continued attempts to collect on an unverified debt.

A Lawsuit is NOT a First Contact

If you’ve never heard from a debt collector, can they sue you for a past due debt? And if they do, must they give you notice of your right to dispute? Yes. And no. They can sue you without first bugging you for money. If they do sue you, the lawsuit is NOT a contact that triggers your right to dispute and verification. That’s what the Fair Debt Collection Practices Act (FDCPA) says, and the reason for that is simple: you’re in the court system and play by court rules once a lawsuit gets filed.

You Must Answer

And the court rules are that once you get served with a lawsuit you must file an Answer (or other “responsive filing” – a motion to dismiss, for example) or you will be in default. Put another way, if you don’t respond in court with an Answer denying liability or a motion to change or get rid of the lawsuit, you will lose. The lawsuit changes the rules, and you “aren’t in Kansas anymore.” [That’s what Dorothy says in the Wizard of Oz when all the weird things start happening.]

Don’t be a Verification Sucker

The debt lawyers know the rules very well, and one would like to think that it’s only an “excess of caution” that causes them sometimes to print the FDCPA language on their lawsuit. But given the fact that so many people have sent dispute letters instead of answers, and the fact that the debt collectors KNOW this, that might be naïve.

What I’m here to tell you is that whether or not such language is on your lawsuit, YOU MUST ANSWER THE SUIT or face a default judgment. Don’t be a sucker – file an Answer or other responsive document within the time allowed by the rules of civil procedure. You must defend yourself in court – you’re not in Kansas anymore, and the FDCPA no longer applies.

A Little Window, Maybe

Litigation does not technically rule out the FDCPA entirely, just the “first contact” rule. It may be that the debt collector’s attachment of the notice to a lawsuit is itself a violation of the FDCPA, as it may be an attempt to sucker you into seeking verification instead of answering the lawsuit. It might be an unfair attempt to get a default judgment. I have argued as much before. That might give you a counterclaim to their lawsuit.

And if you have sought verification rather than answering, and they got a default judgment, you should certainly consider moving to vacate that judgment either on the basis of that deception or your own confusion. The courts favor judgments on the merits rather than technicalities, so there’s a very good chance such a motion to vacate, if filed in time, would work.

But these are not exceptions to the rule that you must respond to the lawsuit in court. If you get sued, the FDCPA no longer applies in that way. You must respond or they will get a default judgment against you, and the next you will hear about it will be when they garnish your wages or bank accounts. Don’t let that happen.

Disputing and demanding verification would be much easier, no doubt, but it doesn’t work at this point.

Don’t look for the “easy” way. Look for the RIGHT way.

 

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.

Motions to Dismiss Part 2

Motions to Dismiss in Debt Collection Cases, Part Two

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 the second part of a two-part article. For the first part, click here. For a video on arguing motions in court, click here.

What Motions to Dismiss Are

 So what is a motion to dismiss? A motion is always the way a litigation party asks the court to take some official action. A motion to dismiss is a motion asking the court to get rid of some part of the other party’s case on the grounds that, even if what the other side says is true, it doesn’t give them the right they claim. For this reason, motions to dismiss are sometimes called motions “for judgment on the pleadings” or “demurrers.” The crucial fact in all of these motions is that all the facts alleged in the pleadings are taken, for purposes of the motion, as granted just as if they had been proven. If the motion is denied, the facts will still have to be proven later in trial.

In the Litigation Manual I illustrate the concept by supposing that a policeman has issued a ticket for exceeding the posted speed limit, but the ticket says you were going 25 mph in a 30 mph zone. There, even if what the ticket says is true (and in this case, specially if it is), it simply does not state a violation of the law. A similarly basic example in the debt law would be where you sued the other side under the Fair Debt Collection Practices Act without alleging an action that violated the act.

Many motions to dismiss really seem to be calling the court’s attention to some obvious mistake, a simple oversight, perhaps. Naturally, however, many motions to dismiss are not so simple. In many cases, although the facts are clear, what the law provides or requires is not, and these would be cases appropriate for motions to dismiss.

You can move to dismiss any claim or count of the petition. If you do not seek to dismiss the entire petition, you have to answer the part you do not try to get dismissed.

 

Because the motion assumes that every fact alleged is considered true, motions to dismiss are said to be “testing the sufficiency of the pleadings.” Most courts will go ever further than that, and state that, if any set of facts (alleged or not) consistent with the pleadings could result in a valid claim, the motion to dismiss is to be denied, but from the point of view of a pro se defendant, this rule has limitations. Depending on unalleged facts can be a dangerous occupation for someone wanting to avoid a motion to dismiss.

Defendant’s Motions to Dismiss vs. Plaintiff’s Motions to Dismiss

Technically, a defendant’s motion to dismiss is treated in the same way as a plaintiff’s motion to dismiss, the only differences being who brings them and when. In any event, what is up for grabs is purely a legal question: does the law allow or prohibit certain action, and does it give a right to the person claiming it?

Despite the legal equivalence of the motions brought by plaintiff and defendant, it makes sense for us to look first at defendant’s motions, which you are likely to file against debt collectors, and secondly at plaintiffs’ motions to dismiss counterclaims or affirmative defenses, which debt collectors are likely to file against you.

Motions to Dismiss by Debt Defendants

When Petitions (or counterclaims) are filed, they are supposed to be following one of two types of pleading: “notice” pleading or “fact” pleading. The type of pleading required can make a very large difference, and it is determined by State law. In other words, your state requires either fact pleading or notice pleading. One of your first actions as a defendant in a debt lawsuit should be to find out which rule your state follows. Most states require fact pleading.

Fact Pleading

If your state requires fact pleading, then filing a motion to dismiss is as “simple” as looking at the elements (parts) of the case the plaintiff is alleging (its “prima facie” case), seeing if every fact necessary to prove that case is alleged, and moving to dismiss if any parts of the prima facie case is missing.  You might think that debt collectors, who file millions of these cases per year, would never omit a part of their case in the pleadings. In fact they do so quite often, and this is simply because of the nature of their business: they buy huge numbers of supposed debts with minimal paperwork, file cases by the truckload, and rarely get challenged by defendants or the courts. In reality, lawyers are creating forms that secretaries fill out much of the time. They are not sharp, in other words, nor do they need to worry very much about their petitions. It is easy for them to make mistakes in the pleadings, and they often do. And sometimes they do it on purpose.

For a simple example, consider the filing of a claim of breach of contract in Pennsylvania, where a plaintiff on such a claim must either state the terms of the contract or attach a copy of it. Debt collectors almost never do this despite the rule – because they can’t. They don’t have the contracts. The huge majority of the cases are won by default, but those who defend simply file a motion to dismiss (called “Preliminary Objections” in Pennsylvania). Eventually the cases of persistent defendants get dismissed with prejudice, but for each case that gets dismissed, probably thousands of inadequately pleaded cases result in default judgment for the debt collectors. And the debt collectors are never punished for flouting the law. See the attached sample motion and judgment.

Notice Pleading

Where the jurisdiction is “notice” pleading, a motion to dismiss is much more difficult to win. Notice pleading means that a petition must give the party being sued some “general idea” of what he is being sued for, and in some courts this is such a vague standard that it is almost impossible to succeed in your motion to dismiss. Unless the debt collector actually names its theory in a heading (as they often do), if it does not state all the elements of an obvious claim, your motion may well be a “Motion for More Definite Statement.” In this motion you point out that the plaintiff has not alleged any specific claim and you ask that the case be dismissed or that the debt collector be required to state the elements of a claim. Your argument there is that the vague petition fails to give you adequate notice of the claims being brought against you. This type of motion (for more definite statement) has many of the advantages of a motion to dismiss and should probably be brought if possible.

If you win that and the plaintiff then files an Amended Petition that is also inadequate in stating a claim, you will either oppose the amendment or file a new motion to dismiss.

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.

Defend against Motions to Dismiss Part 1

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How to Argue Motions in Court

What to Say and How to Say it

When you’re sued for debt, you may need to make or defend motions in court, and this sometimes means making arguments before the court. This video will help you know what to say and how to argue motions in court.

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Defending Motions for Summary Judgment in Debt Collection Cases

Read more

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.

Sample motion to Dismiss

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