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Motions to Dismiss When Sued for Debt
 

Motions to dismiss are supposed to "test the pleadings" to see if you are alleging a real right. What does that mean? and how do you do it or defend against it?

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When you're being sued on a debt by a debt collector, one of the best things you can do is often to file a counterclaim. This might be based on any number of laws, but most typically you will have a claim under the Fair Debt Collection Practices Act. Particularly if you are pro se (representing yourself) you should probably expect the debt collector to file a "Motion to Dismiss."

What a Motion to Dismiss Is
 

Legally, a motion to dismiss is designed to "test the legal sufficiency of the claims." That is legalese for deciding whether the law makes what you claim happened illegal, gives you the right to sue the other person, makes the other person the right person to sue, and so on. In other words, if what you say is true, does the party you are suing owe you money?

Practically speaking, debt collectors often file the motions more as a way to force you to restate your pleadings than with any real hope of getting the claim dismissed. And to be more specific, the debt collection lawyers may want to test your willingness to fight the debt collector, to please their client, or just an easy way for the law firm either to train new lawyers or generate fees. You will probably never know the actual reason for the motion, but if it is granted, your claim will be dismissed (kicked out), so you must take it seriously.

How Motions to Dismiss are Reviewed by the Court
 

On a motion to dismiss, the court is required to consider every fact pleaded in your counterclaim (I'm assuming here that the debt collector is bringing the motion against your counterclaim) as true. Given the truth of what you say, the debt collector will argue that the law simply does not provide you a remedy. Actually it goes further, though. The question before the court is whether there is any set of facts, consistent with your pleadings, that would give you a right to sue, so this is a very broad standard - and the courts are supposed to be as "liberal" about it is they can.

For the Rest of this Article

For information that will radically change the way you see the debt law process and greatly increase your chances of winning, please see Ending the Debt Nightmare. For information on many issues that come up in debt litigation and materials you can use to defend yourself, get the Debt Defense System. It's everything you'll need to defend yourself.

 

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Check out our Guide to Legal Research and Analysis for a guide to researching and laws and cases in the most effective way. But legal research is more about what you do with what you find, and so this is a primer on legal thinking and analysis as well.

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