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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 in Limine

Motions in Limine are pre-trial motions that serve a specific purpose. That is, they are motions designed to preview issues regarding whether certain evidence will be allowed (“admissible”) for the trial and under what circumstances it would or will be admitted. Typically, a court’s final pretrial order will set the time limit and schedule for motions in limine, but even if it doesn’t, you may want to file one.

Remember, they are filed in contemplation of trial – they are not a motion to file in some more general sense. If there is a motion for summary judgment, for example, you don’t file a motion in limine – you oppose the motion and object to the evidence in that motion. You would make all the same arguments, perhaps, but in a different context.

Remember that a court may, or may not, rule on a motion in limine before trial. The idea is to present the objection in a systematic way under conditions that allow the judge to think about it outside of the heat of the moment. It often happens that you’ll present a motion in limine and the judge won’t rule on it because the context of the trial isn’t clear until things start happening in trial. No matter. Make your best argument in the motion and argument and be prepared for whatever the judge does. Pay close attention to what the judge thinks matters regarding whether the evidence will be admitted, and be prepared to argue at trial that those conditions haven’t happened (so the evidence shouldn’t be admitted).

Finally, remember that any ruling by the judge before trial is not necessarily binding at trial. Thus, even if you lose your motion to exclude in limine, you will want to object at trial and take another shot at it. You’d be surprised how often the judge will change his mind. And that means you also have to be prepared for the other side to do the same – and you must remember that in order to preserve your rights you probably have to make your objections again at trial. So think of the motion in limine as a sort of warm up.

 

Defend against Motions to Dismiss Part 1

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Motions for Summary Judgment

Responding to Motions for Summary Judgment

Motions for Summary Judgment are among the most lethal weapons facing you as a pro se debt defendant. This video discusses what they are, how to protect yourself from them, and how you could use them to your advantage.

 

Click here for a related series of articles.

Responding to Motions for SJ Part 1

Responding to a Motion for Summary Judgment in a Debt Case

Introduction

If you are defending yourself pro se from the debt collectors, it’s sometimes the little things that can stump you. As I have often said, Summary Judgments are “fact intensive,” meaning that defending yourself from them will depend primarily upon getting the important facts to the judge in the proper way, while legal argument is actually much less important. How do you get the facts in front of the judge? What facts do you use and how do you put them into your brief? That’s what these articles will show you. (To see some of this on video, go here.)

You Must Know the Rules

The first thing you should know about motions for summary judgment is that they are carefully controlled by the Rules of Civil Procedure for your jurisdiction and by something called “Local Rules,” which you can get from the courthouse or its website. These rules tell you exactly what form the motion should take, what is required to oppose it, and how much time you have. Your first move if the debt collector files a motion for summary judgment should be to look up those rules and understand them. It’s critical, because a misstep as to form of your response or its timing could easily cost you the case. Don’t give your case away. Responding to Motions for Summary Judgment, even with the materials available at this site, takes time! It is a significant undertaking under the best of circumstances, and even though the debt collectors typically leave large enough loopholes for you to drive through, it takes time and effort to find and develop them. Do not wait till the last minute to start working on your response.

What Format Does a Motion for Summary Judgment (and Your Response Opposing) Take?

Every state of which I am aware now uses a similar format for motions for summary judgment. They require the movant (person bringing the motion) to create a list of “undisputed” facts called a “Statement of Facts” with proof from the record supporting them. And that proof can be testimony by affidavit or deposition, or it can be answers to interrogatories or documents. Then the motion for summary judgment refers to those facts as necessary as it makes legal arguments. To prevent the court from giving the debt collector a summary judgment, you must demonstrate that there are factual issues of significance that require a trial. So if you are defending, your first line of defense is to attack the facts and show that there are important disagreements.

Click Here For Part 2 of this Article

If you are representing yourself in debt litigation, and if you are facing a motion for summary judgment, you should consider purchasing the Response to Motions for Summary Judgment packet. This packet addresses an actual motion filed in a real case, and it deals very thoroughly with the facts and arguments actually made in a real case by a real debt collector (although the names have been changed to hide the identities of the people involved. It includes an attack on every phase of the debt collector’s motion including its rather bizarre motion for attorney’s fees and its deceptive use of an affidavit. It also includes an affidavit that could have been used in the case.

Responding to Motions for SJ Part 2

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Procedure for Moving to Vacate

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Motions to Dismiss Article and Video

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