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New Member
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Oct 1, 2010, 12:49 PM
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Does the opposing party need to sign off on a motion to dismiss?
I am being sued by a credit card company. I have already filed an answer to the suit and went in today to file a motion to dismiss for failure to attach the original contract to the complaint. I was told by the clerk that I would have to have the plaintiff's atty agree and sign off on the motion. Is this true? I know there is no way they would agree to this. Please advise!
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Expert
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Oct 3, 2010, 06:25 AM
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No, this doesn't make any sense to me.
Perhaps you misunderstood the clerk. A few possibilities come to mind:
- You didn't properly prove that you sent a copy to opposing counsel and so the clerk wants you to provide a receipt signed by the opposing party.
- You are filing the motion too early or too late or something and so you would need to get the opposing party's stipulation to waive that rule.
- The clerk is wet behind the ears and doesn't have a clue.
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New Member
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Oct 4, 2010, 06:14 AM
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Ok it may be that I'm filing too early. This is what happened - I received a flyer in the mail stating that I am being sued by Citibank from a bankruptcy firm that wants to represent me. I was never served with a summons. When I called the courthouse the clerk informed me that I needed to come down and file an answer so that's what I did. In the meantime I've been trying to negotiate with Citibanks Atty but they are not offering me a settlement that I can afford. So I went to file the motion to dismiss. I never asked for validation of the debt... Is this something that I have to file for? Or just send a letter to the atty? What other procedures should I follow? Please help!
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Expert
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Oct 4, 2010, 08:34 AM
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 Originally Posted by NolaGirl
... When I called the courthouse the clerk informed me that I needed to come down and file an answer so that's what I did. ...
Sorry, but you already gave away your best defense by voluntarily filing an answer. You will never know, but it's possible that they would never have served you with process.
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New Member
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Oct 4, 2010, 08:41 AM
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I know.. I just realized that. I should have never listened to the clerk. Should I just wait now? Will they send me a court date? Or should I continue to try and negotiate with them outside of court?
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Uber Member
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Oct 4, 2010, 02:17 PM
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I would attempt to negotiate right up until the Judge ruled. You never know unless you try -
(Most people would scream I KNOW; I REALIZED THAT. You did not - congrats. You've got your wits about you where this is concerned. If you negotiate with good intentions, sincerity, I think you've got a good shot at it.
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