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-   -   How to file motion to dismiss (https://www.askmehelpdesk.com/small-claims/how-file-motion-dismiss-177009.html)

  • Jan 26, 2008, 04:47 PM
    psmmain
    How to file motion to dismiss
    I was served for a credit card debt that was not mine. I filed a response and sent the plaintiff as set of questions to answer, but he has not responded in over thirty days. I did respond to his interrogatories, I also sent him another list of formal interrogatories as well as a request for production of documents and admissions. The first was more than 30 days ago. The second set was only 14 days ago. Even though the first request was not structured as an interrogatory, it was my understanding that it was acceptable as a request for evidence. I filled both requests with the court. Do I have enough to file a motion to dismiss? And if so I am not sure how to structure it.
  • Jan 26, 2008, 04:52 PM
    Fr_Chuck
    Was this in small claims, if so, often merely asking their clerk if they have a form. If not, you can check court records for similar motions and sue as a format.
  • Jan 27, 2008, 09:58 AM
    psmmain
    One more question. When you respond with your own requests for proof - discovery that is, does it always have to be in a specific format or can the request for information be in the form of a letter of request?

    Also, if you do not specify a time, does it default to thirty (+5 for mail) days?
  • Jan 27, 2008, 10:02 AM
    ScottGem
    Small claims court is more informal. Has a hearing date been set? If not, you try filing the motion to dismiss. Otherwise I would wait until the hearing and file then.
  • Jan 27, 2008, 09:19 PM
    psmmain
    A hearing date has been set, but getting time off from work is very problematic. When you say small claims court is more informal, do you mean they are not a strict about procedure of they might grant additional time for rewsponses.

    I have located the papers to file for a dismissal, if I did file incorrectly or prematurely, could it be held against me?
  • Jan 28, 2008, 04:53 AM
    excon
    Hello ps:

    Most small claims court judges will not base their decision on whether the documents were prepared properly.

    The court doesn't care if you are having trouble getting off work. If you're not there, the other guy wins.

    excon
  • Jan 28, 2008, 05:28 AM
    psmmain
    Is it better to try to get it dismissed or go to the hearing Is it possible to get it dismissed if the date has been set? Those are the real questions. I know the other guy wins if I do not show up. What I need to know is if I can get it dismissed so I do not have to go to court.My guess is at this point, I probably have nothing to lose if I do make a motion to dismiss, worse case scenario is the judge denies it and I go and ask for the evidence at court.

    This is an LVNV case and the lawyers have not responded to anything other than asking for trial.
  • Jan 28, 2008, 06:01 AM
    excon
    Hello again, p:

    Couple things.

    I don't think you have grounds for a dismissal. At WORST, the judge will give the plaintiff time to correct whatever mistake you are complaining about. Plus, I seriously doubt that he'll issue his ruling "in camera", meaning from his chambers. That means he's going to need both participants in court to examine the merits of your motion. So, you're going to have to be there for that.

    As a matter of fact, I wouldn't move to dismiss based on the fact that they haven't responded. I'd go to court, and file my motion based on the fact that they don't have your signature on the loan application. THAT is the issue - not whether they have good lawyers.

    You say this isn't your debt. Is this suit the first time you ever heard about it? Did you do anything while they were sending you letters??

    You should be aware that if this debt IS yours, YOU are the one who is going to be paying THEIR lawyer for all the extra billable time YOUR motion is causing them. Whatever they claim you owe now will most likely double if they win a judgment. And, of course, with a judgment, they can make your life miserable

    excon
  • Jan 28, 2008, 06:54 AM
    ScottGem
    I agree with excon. I doubt if the judge will grant your motion to dismiss out of hand. I'm just not sure whether you would harm your case by submitting one. I doubt though if you will avoid going to court.
  • Jan 29, 2008, 04:40 AM
    psmmain
    I do not think the debt is mine, because it involves a Citibank account and I have no open accounts accounts with Citibank. If they would respond with documentation, it would clear things up for everyone.

    So the bottom line is that these "people" can make your life miserable, provide no proof, cause you to lose money in multiple ways and there is nothing you can do? Even with the talk about validation and verification, they can ignore all that and still screw you? Hopefully, the judge will ask for some sort of proof in court will he not? Is not the burden of proof of the debt on the plaintiff?

    This is not the first time I heard from them, but I was stupid in responding to their letter and did not send it registered. So I cannot prove that they never gave me any validation when requested to.

    In court though, do you think that the judge will consider the fact that they have not responded twice? Would filing a motion to compel them to respond help any? Or in reality it is like shooting a dead horse? What is the point to interogatories then if they can just ignore them?

    Filing a motion in court is a verbal procedure right? You just stand up and say the plintiffs have provided no proof of signature or proof the debt is yours and go from there.
  • Jan 29, 2008, 05:06 AM
    excon
    Hello again, ps:

    Debt collecting is a legal maneuver. Like ANY legal stuff, if you don't understand how it works, you're going to get screwed. Well, YOU don't know how it works, and YOU are getting screwed. You have rights. But, if you don't know how to use 'em, you might as well not have 'em.

    Couple things. I happen to know who I have accounts with. I know if I've paid them, and I certainly knew when I didn't. Just because you don't show an open account on your credit report does NOT mean the citibank account isn't yours. My initial suspicion is that the debt IS yours.

    Although collection agents are the scum of the earth, they're not stupid. They don't make their living by making people pay debts that they don't owe. I wouldn't think you could make a living that way..

    From a legal perspective, the very first letter they sent you began a clock. The letter said at the bottom words to the effect "This notice is to collect a debt. You have 30 days from the date of this letter to ask for verification. If you don't, the debt is considered to be yours."

    THAT was the only time prior to court, that they are required to show verification. You had your shot. You missed it. You're right, whatever letter you sent can't be used...

    So, there is plenty you can do, if you knew about more stuff. That's not the systems' fault. So, go to court. Make your motions (written is better), and take your chances.

    excon
  • Jan 29, 2008, 06:52 AM
    ScottGem
    The purpose of providing verification PRIOR to the hearing is a legal concept known as Discovery. Its where one side shows its cards to the other so they can prepare their case. The fact that they have not responded to your requests for verification does not disqualify their suit.

    The purpose of a hearing is so that both parties can present their case to a judge. The judge can then rule on the merits and legality of each case. For the judge to rule for the plaintiff, they have to prove their case (except in the case of a default judgement). That's why its important for the defendant to answer the summons and indicate that they will defend against it. Otherwise the plaintiff can get a judgement without presenting proof.

    So at the hearing they will have to produce verification. That they did not do so prior to the hearing will only get you a continuance if they produce it and you need time to refute it. However, if they don't produce verification or its insufficient, you can then point out that you made two requests for verification and what they have is not sufficient so you should be granted a dismissal.

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