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  1. I provided the State of Michigan court (e.g., state district court) with an answer to a complaint brought against me by Midland Credit Management LLC. The answer to the complaint also stated my affirmative defenses which were: (1) Stale Affidavit pursuant to MCL 600.2145. I am relying on this affirmative defense because the affidavits provided by the plaintiff were over 200 days old which is beyond the 10 day timeframe in the state of Michigan pursuant to MCL 600.2145. (2) Arbitration Agreement Bars Bringing Suit. I am relying on this affirmative defense because after looking over the credit card agreement from the card issuer who sold the debt to Midland Credit Management LLC I noticed in the card agreement that there is an arbitration provision. I provided a copy of this agreement via Exhibit along with the answer to the complaint and affirmative defenses. (3) Failure to Establish a Claim for Breach of Contract. I am now waiting to have a pretrial conference in a week and wanted to know which of of the following should I file: (#1) Motion to Dismiss [or] (#2) Motion for Summary Judgment? The reason I am confused is because I read this https://get.courtroom5.com/the-motion-to-dismiss-or-the-motion-for-summary-judgment-know-the-difference/ article about the differences between motions to dismiss versus motions for summary judgment and when it is best to use one versus the other and I am in need of further clarification so that I can prepare things.
  2. I'd love some help from you guys. I got a summons and complaint 7 days ago. I've literally been doing nothing but researching for the past week. Also, I applied for legal aid, but have little hope they will help. They aren't even slated to contact me until next week. I'm going to be honest with you guys. I need a hand to hold. I have no idea what I'm supposed to do and it feels like a bottomless pit. I have a couple weeks until the deadline. So here are the facts, thus far: 1. I received a summons and complaint between my screen door and main door -along with the business card of the process server- last Monday. I plan to draft a motion to dismiss for insufficiency of service of process under Title 12 of the Oklahoma Statutes § 12-2012(b)(5) and § 12-2004. I've drafted a motion for this, along with a very basic Memorandum and Points of Authority outlining and quoting the above laws (basically stating that service wasn't valid because it wasn't given to me face to face. I plan to also write an affidavit and add it. I know that I have to send a copy of this to the other side and add a section that certifies that I sent it. QUESTION 1: Do I need to file an Notice of Appearance or a statement that I am representing myself Pro Per/Se? DISCUSSION: It might seem a little petty, but I feel like it is my right to be processed competently, and if this is the current local practice, it needs to be nipped in the bud. Also, I could use the extra time to respond seeing as how I am not a legal expert and it takes time to learn this stuff. In fact, I thought about motioning "TO DISMISS PURSUANT TO RULE 12(B)(5) FOR INSUFFICIENCY OF PROCESS OR IN THE ALTERNATIVE, EXTENDED TIME TO ANSWER OR RESPOND TO COMPLAINT." But I don't know if that second ask will make me waive my right to other defenses that I might want to keep. 2. They sent an "Affidavit of Indebtedness" --the official complaint calls it an 'Affidavit of Account' and I would love to point out that distinction if its ever useful to me, but i figure its just a small error and oversight. Still, I have an English degree and we are only second to lawyers about pointing out this sort of error- So the Affidavit is actually pretty much blubber and hearsay. No surprise there. In fact, I pretty much found the exact text of this affidavit online. I'm guessing it's an auto-form document. So, I'd like to motion to strike it from evidence or at least take all the teeth out of it because of the hearsay. 3. The complaint states that (specific info redacted) "1. BUBBA GUMP CREDITOR provided credit to the defendant on account number BUNCH-A-NUMBERS. Defendant defaulted on the obligation. The account has been assigned to Plaintiff. 2. Defendant owes Plaintiff $3333.33. An Affidavit of Account is attached hereto and incorporated by reference." 4. The Affidavit of Indebtedness (County of Stearns, Minnesota -- where all the women are strong, all the men are good looking, and all the children are above average, no doubt) states: (SPECIFIC INFO REDACTED) “PATSY MIDLAND, whose business address is 16 McLeland Road Suite 101, St. Cloud, MN 56303, certifies and says: 1. I am employed as a Legal Specialist and have access to pertinent account record for Midland Credit Management, Inc. (“MCM”), servicer of this account on behalf of Plaintiff. I am a competent person over eighteen years of age, and make the statements herein based upon personal knowledge of those account records maintained on Plaintiff’s behalf. Plaintiff is the current owner of, and/or successor to, the obligation sued upon, and was assigned all the rights, title and interest to Defendant’s BUBBA GUMP account XXXXXXXXX0000 (MCM Number 0000000) (hereinafter “the account”). I have access to and have reviewed the electronic records pertaining to the account maintained by MCM and am authorized to make this affidavit on Plaintiff’s behalf. The electronic records reviewed consist of data acquired from the seller when Plaintiff purchased the account, together with records generated by MCM in connection with servicing the account since the date the account was purchased by Plaintiff. 2. I am familiar with and trained on the manner and method by which MCM creates and maintains its business records pertaining to this account. The records are kept in the regular course of business. It was in the regular course of business for a person with knowledge of the act or event recorded to make the record or data compilation, or for a person with knowledge to transmit information thereof to be included in such record. In the regular course of business, the record or compilation is made at or near the time of the act or event. 3. MCM’s records show that Defendant(s) owed a balance of $3333.33 as of 2017-08-21. 4. On or about 2016-11-16, MIDLAND FUNDING LLC became the successor in interest to this account. 5. Based on my review of MCM’s business records, 1) Defendant(s) opened the BUBBA GUMP CREDIT account on 2013-01-11; 2) the last payment posted to the account on 2016-03-22; and 3) the account was charged off on 2016-10-23. 6. On or about 2016-10-23, the account was sold from BUBBA GUMP CREDIT to ANOTHER CREDIT SERVICE L.L.C.. The account was then sold to the following debt buyers in order of occurrence on or about: 1. 2016-11-16, MIDLAND FUNDING LLC 7. If called to testify as a witness thereon, I could and would competently testify as to all the facts stated herein. I certify under penalty of perjury that the foregoing statements are true and correct.” 5. This is the only paperwork I have received. And I see a dozen other things I can possibly do. For example, I am a member of a federally recognized tribe living within that tribe’s jurisdiction on property owned by said tribe, in a house owned and leased by said tribe. I even work for said tribe. Technically, I could claim that the court lacks jurisdiction. But, then, I would have to do more research on tribal law (which probably mirrors state and federal law). I would gain no advantage other than time, and possibly lose several advantages. Something else I have been toying with (but admit I don’t know if it applies) is filing to dismiss for failure to state a claim based on threadbare recital/mere conclusory allegations, based on Twombly & Iqbal. Still another thing I could do is motion for the production of documents. Or send a letter of Debt Verification. Not to mention other Affirmative Defenses like Failure to Consider etc etc etc. But I don’t want to be frivolous about this. So, QUESTION 2: Do I roll some or all of these things in a big motion and slap them with it? Or do I motion the insufficient service first, and strategically collate a few of the other issues I can raise? Mainly, I fear waiving my rights to certain defenses if I do things in the wrong order. I want to bring up the insufficient service. I want to strike the affidavit as hearsay. I want to force them to produce any documents they have (And I’d just love to send THEM interrogatory during discovery.) But, I must say, my head is spinning and I have no idea where to start. Someone, please pull me to earth and pave the way. I can do the work and research, but the direction is lacking. Thanks for all the help, guys.
  3. I am being sued by Unifund. I don't recall the debt. I pulled my credit report and can't find OC (citibank cc) or JDB on any of them. I contacted their attorney and Unifund and requested any other info they had to help validate this so I could negotiate if in fact it was legit. (Just courtesy call nothing formal in writing) They sent appx 6 statements from 2015 and 2016 on act opened in 2012. At first glance I noticed my name. I have a very common name , (like Barb Jones or Cathy Smith common) and my medical records have been confused with a woman by the same name but different birthday, so I use my middle initial on legal documents. There is no middle initial included. Also, there was an auto pay set up for $50 but it never even covered the minimum payment due on the alleged acct. It was short over $30 every month to meet the required minimum monthly payment with dates going back to 2015. The balance on the card however , always went down. It never had any late fees or penalties as a result of the minimum not being paid, and monthly interest was charged on changing balance. None of the statements showed any other activity. No purchases. No credits (except an auto pay) . I attempted to look wAy back in my bank records for an auto pay and could not find one. In 2012 I had multiple surgeries and applied for credit to pay medical bills. I did fall behind but settled with monthly payments with an attorney but it was not affiliated with this OC or JDB. It is only for $1800 which could have been paid the last few years in 2 payments had I known it existed out there. Now there's a suit against me and I don't want spend big money on attorney as it would be cheaper to just pay this alleged debt. But I don't want to pay that either. It isn't fair for me to have to guess if I truly owe this. I called the original creditor to try to get details to no avail. Need some major guidance here PLEASE!
  4. Hi I am being sued by Midland through an attorney in Georgia. I never received an initial letter. I was served March 1, 2018 and was totally surprised because I never received anything stating that I owed Midland. I called the court and they stated that they filed but hadn't submitted the server confirmation yet. I have until the end of March to reply. I did have an account with the bank but it was written off. 3 different DC owned the alleged account before Midland. They sent me the attached bill of sales with certificate of conformity and 3 copies of old credit card statements without my name and a fact sheet with my name address total due. The bill of sales do not have my name on them. They show that they bought a bundle of accounts. I need help, please! I downloaded a copy of the answer form from the court. Should I answer with deny and/or should I motion to dismiss for a lack of information and the fact that there was no initial communication? I'm a 57 year old nervous Reck! PLEASE SOMEBODY HELP ME! 1. Who is the named plaintiff in the suit? Midland Funding LLC assessor in interest to Credit One Bank NA 2. What is the name of the law firm handling the suit? Green and Cooper LLP 3. How much are you being sued for? OVER ONE THOUSAND 4. Who is the original creditor? Credit One Bank N.A. 5. How do you know you are being sued? I was served. 6. How were you served? In person. My husband received it. 7. Was the service legal as required by your state? Yes 8. What was your correspondence (if any) with the people suing you before you think you were being sued? I never knew of Midland until the lawsuit. I haven't responded yet to the lawsuit. I have until March 30, 2018. 9. What state and county do you live in? Georgia Gwinnett County 10. When is the last time you paid on this account? 2016 11. When did you open the account? 2012 12. What is the SOL on the debt? 4 years 13. What is the status of your case? claim filed Feb 8, 2018 14. Have you disputed the debt with the credit bureaus. No 15. Did you request debt validation before the suit was filed? No, because I never received anything regarding this debt until March 1, 2018. 16. How long do you have to respond to the suit? March 31. 17. What evidence did they send with the summons? Affidavit stating that they bought a bundle of accounts. They attached 2 bill statements: One for 2016 and One for 2017. They also had a field data attached. The suit just claimed the defendant is indebted to the Plaintiff as follows: Owe the principal amount $1,xxx.xx, subject to a credit for payment in the amount of $00, plus pre-judgement interest at the rate of 7% from charge-off date through judgment date, plus post-judgment interest at the statutory rate and all costs (Court costs subject to Court approval) of this action. Midland Funding LLC purchased this account. The original credit grantor is Credit One Bank, N.A. the original account number is xxxxxxx6969. All exhibits attached hereto support the foregoing allegations and by reference are made part of this Statement of Claim. That said claim is in the amount of: XXXXXX principal was left blank interest, plus $117.00 cost to date and future cost of this suit. State of Georgia. It was sworn Jan 22 2018 Notice and Summons was stamped Feb 19, 2018. It said Plaintiff made a claim and is requesting judgment against me and that I needed to present an answer. CLAIM STATED.pdf
  5. My Missouri company was incorrectly named as defendant because of a similar, but no where near exact, corporate name. We have filed a motion to dismiss but it will not be heard until the time to respond to the summons is over. I am trying to do this pro se instead of paying hundreds if not thousands in legal fees. Is the time to respond to the summons extended because of the motion to dismiss or do we still need to respond by the summons date even though the suit is against the wrong company? Thanks for your assistance.
  6. In a separate thread, facts came up that a certain internet bank is governed by an arbitration clause in the contract. If they file in court vs. JAMS or AAA is it : 1. an improper forum for any controversy ? 2. can it be quashed with a demurrer or a motion to quash? 3. can it be struck with a Motion to Strike? or 4. Completing the steps already used for forcing arbitration? I am thinking if we can kick them out of court once then the judge has to see that every case is flawed
  7. I have edited this post to include this introductory statement because there's a lot here and I feel it's important to read through this saga knowing ahead of time how it will end. You will see how much work and attention to detail I gave this case but it was not enough to come out on top. I lost in Justice Court when the Plaintiff filed a Motion for Summary Judgment (MSJ) and was unable to get the appellate court to reverse the lower court's ruling. Here is the thread for my appeal: http://www.creditinfocenter.com/community/topic/323330-arizona-lost-to-cavalry-on-msj-also-lost-on-appeal/ I have learned several things along the way. The most significant one is that in most cases, there is no "absolute" way a Justice Court judge has to rule on evidence. He can rule one way on admitting certain evidence and another judge can rule the exact opposite way. If both cases went to appeal, the appellate court can rule that neither judge committed error. To wit, winning in Arizona is mostly luck of the draw and as time marches on, good luck seems to be evermore diminishing . The reason for this is because appellate courts in AZ (and most other places) review the admission of evidence for an "abuse of discretion". This means they are not looking for a specific outcome with the admission of evidence (admitted or rejected), but instead are looking for something to indicate the judge had a basis for his decision. Furthermore, if there is nothing on the record that shows the judge had no basis for his ruling, the appellate courts usually won't assume facts that aren't there. This means the evidence itself must be lacking some fundamental element in order to have the appellate court reverse the Justice Court decision. The next important thing I learned is that there is a case here in Arizona named Parker that appeals courts have been applying to JDB lawsuits. Parker says that a witness can testify about business records even if that witness did not create the records or has no knowledge of the person that created them or the manner in which they were created. The way this is being applied to JDB lawsuits is an employee of a JDB can testify about your credit card statements even though the JDB's employee has never seen the records before reviewing them in preparation of giving her testimony. The only criteria for giving this testimony is that the testimony must state 1.) the witness is a custodian of the JDBs records; 2.) the witness has reviewed the records being introduced (and specifically identifies them); 3.) the records were incorporated into the JDBs own records; and 4.) the JDB relied on the records in its normal course of business. If all 4 of those things are present in the witness testimony (or affidavit on MSJ), the Justice Court is free to admit the evidence and the appellate court won't reverse that decision on objections of hearsay or lack of foundation. This doesn't mean the evidence admission cannot be reversed based on some fundamental defect with the evidence itself, however. Examples of this would be a date that doesn't match up with other dates or dollar amounts among the records are discrepant with no rational explanation. It's YOUR job to raise these questions with the lower court. If you don't address them with the lower court, the appellate court won't consider them on appeal. The last important thing I learned is that JDBs are now entering into 'capped legal fee' agreements with their attorneys. This means that the lawyer agrees to represent the JDB for a modest fee if the defendant does not contest the lawsuit (including defaults) and then a maximum amount the JDB will pay on contested lawsuits. In my own case the cap was set at $1,500. The lawyer submitted an affidavit that they spent over $11,000 in time, but stated that due to 'contractual arrangements' they could only charge $1,500 of that to Cavalry. The significance of this is that a few years ago, if a defendant contested the lawsuit and started running up the JDB's legal tab, the JDB would be more inclined to drop the case and walk away. Now, when they know they will spend no more than $1,500, once they reach that $1,500 limit (right around the 2-3 month mark of the lawsuit when discovery takes place), they have no incentive to back down. It will cost the JDB the same to litigate the case all the way to trial and beyond (I appealed and Cavalry never paid more than $1,500) as it would to settle the case once the cap is reached. The cautionary tale here is that JDBs (at least here in AZ) have figured out exactly what they need to do in order to keep a Justice Court decision in their favor from getting reversed. My philosophy is to do whatever you can to keep the Arizona Court System from deciding your fate on a debt collection lawsuit. At this time, the most effective way to do that is via arbitration. There is an arbitration forum here on CIC. I suggest asking for advice there. Also, here is an example of how arbitration was used in Arizona to beat a JDB: http://www.creditinfocenter.com/community/topic/326349-retired-and-being-sued-by-unifund/ Here is a Justice Court Appeals Ruling discussing the use of arbitration in debt collection cases. http://www.courtminutes.maricopa.gov/docs/Lower Court/082016/m7481002.pdf Update 12-21-2015: The CFPB smacked Midland and Portfolio Financial Services (PFS) pretty hard in a consent order earlier this year. You can read the details here: http://www.consumerfinance.gov/newsroom/cfpb-takes-action-against-the-two-largest-debt-buyers-for-using-deceptive-tactics-to-collect-bad-debts/ The reason this is significant is some of the Justice Courts here have reconsidered how they are treating Midland and PFS when consumers contest the lawsuits they bring. This is from a Justice Court case that was reversed on appeal: http://www.courtminutes.maricopa.gov/docs/Lower%20Court/102015/m7064645.pdf There have been a couple reports of the Justice Courts taking it upon themselves to reject the evidence, even when the defendant doesn't raise the issues of the CFPB findings. Of course, if you are sued by Midland or PFS, certainly address the CFPB findings when objecting to summary judgment or at trial when Midland/PFS tries to introduce their evidence. Update 04-06-2016: It seems the Justice Court appellate court has had a change of heart: http://courtminutes.maricopa.gov/docs/Lower%20Court/022016/m7204120.pdf Ok, on to my story.
  8. I was served before Christmas and attended my first pre-trial case just after New Years, which thankfully I went in with some knowledge of my rights. When brought into the mediation room I asked for more discovery, and denied everything. PRA's lawyer was nice enough and granted an extension for discovery and another pre-trial date was scheduled by the court. A few days ago I received their "proof" in the form of a big manila envelope of old capital one bills....no letter of assignment. I contacted a local lawyer who unfortunately doesn't do PRA, but did advise me to file a motion to dismiss based on failure to show ownership/standing. Knowing very little about legalese and wording, I would love a point in the right direction on how to write such, cases to site, etc. I feel very overwhelmed!! Ive found sample letters for format but understand I need to learn more about florida statutes and when I word it I have to back up my claim, but it just feels like its going over my head....help?
  9. I'm in Macomb County, Michigan, I'm being sued by Portfolio Recovery for the amount of $716.28. Summons and Complaint was issued 6/2/15. I answered their complaint, I mentioned that their affidavit was made more than ten days before the complaint was filed and I also stated in my Affirmative Defenses that I there is an Arbitration clause in the agreement (that I provided because Portfolio Rec doesn't have it) and that I seek to choose arbitration. I don't know how much weight Affirmative Defenses hold but the judge seemed to ignore it as it continued on to Pre-trial (Dec.3rd 2015). I then filed a Motion to Dismiss, or in the alternative, stay case and compel arbitration. However, I forgot when the pre-trial date was and submitted the motion only a few days before the pre-trial. The plaintiffs lawyer made very little attempt to negotiate a deal, instead she had a very rude and demeaning attitude, apparently she didn't even know that I filed for the motion (which I did send a copy to the plaintiffs law firm a few days before I even submitted it to the court) and that seemed to have made her angry or something. Nevertheless, at the pre-trial, the judge mentioned that he looked at my motion. The plaintiffs lawyer said that what I (the defendant) was doing is just common tactics to buy time and based on her experience I'm not going to file for arbitration. The judge asked her if she wanted to adjourn and she said no, he then denied the motion saying that we will see if he (The defendant) files for arbitration and if not then it will come back to court. That is where we stand now, the pre-trial was yesterday (Dec.3rd), and I'm pretty confused right now. I didn't expect the judge to dismiss my motion as the combination of their affidavit being expired and the arbitration clause in the agreement basically throws their argument out the window. My main questions and concerns are, how (at this point in the case) do I file for arbitration and who do I notify and how do I notify them? I've read many posts on how to initial arbitration but my situation seems a little different and I want to make sure I'm doing it correctly. Also, my concern is that if the plaintiffs lawyer send a summary disposition at this point, do I have to answer it or does that mean I am forfeiting my right to arbitration? Any help at all will be greatly appreciated, I'm really a tadpole in a lake when it comes to law, I'm just learning as I go basically. -- Abe
  10. Hi, I received a complaint and summons on April 30th. I filed and answer with a defense of statute of limitations. 1) do I need to file a motion to dismiss if I already noted the statute of limitations and if I do.. 2) is it too late to file for it since my arbitration date is in less than 4 weeks? Pertinent facts: Arbitration date: December 15, 2015 Last payment (per collector) February 4, 2009 Summons filed February 23, 2015 Complaint filed January 28, 2015. - Do BOTH need to be files before the 6 years? I'm hoping the answer is yes. Statute of limitations in Nevada - 4 years for open accounts (aren't credit cards open?) 6 years for written contracts (no contract has been submitted) - for the sake of argument, I'm assuming worst case of 6 years as that's when she filed. http://www.leg.state.nv.us/nrs/nrs-011.html#NRS011Sec190
  11. I am in Kentucky, have 3 cases laying in court. Questions I have are as follows: 1. Portfolio Recovery had filed suit, waited 15 months or so then files an MSJ claiming I didn't answer RFD, RFA and ADM. I opposed and told the judge that it is hard to answer them since I haven't seen them..Judge "stayed" the case to allow answers, etc. I answered their questions (general denial) and sent them requests for documents. They received the CMRRR on 1 May and have yet to respond. Do I have caselaw and grounds to request and win on a dismissal ? 2. Midland filed a suit on me claiming that I had a Paypal card....I sent an answer to the complaint and denied that I had a paypal card. I never had a paypal credit card....I have asked for a verification from the Bank/CRA but I haven't heard anything back. Do I have caselaw and grounds to request and win on a dismissal ? Both would now be past the SOL if the cases went away.
  12. In the attachment you will find my NJ answer, demand for docs, request for admission, affirmative defenses and motion to dismiss. This is a New Jersey Special Civil case. Please, if anyone would like to review my documents recently filed and can offer advice on how to proceed next, I'd greatly appreciate it!! I am not an attorney. I am acting pro se. DEBTORSBOARD NJ CREDITOR ANSWER DEMAND FOR DOC REQUEST FOR ADMISS AND MOTION TO DISMISS.doc
  13. Hello, I'm pretty new to this site, but it has so far been quite helpful in forming a defense as I am in the process of fighting a lawsuit. Just a few weeks ago, I was feeling overwhelmed by my situation, but a little bit of research in the last week has me feeling optimistic about the opportunity that I have to defend myself. I would like some input as I move forward if anyone has information that would fit my particular situation. I am also lurking about and proactively seeking answers. I'm not 100% comfortable with putting the exact specifics of my circumstances on here, so I'm sorry if anything is a bit vague. Apologies in advance that this will be LONG. I just want to thoroughly explain. The initial contact was made by delivery of summons earlier this year. I made the mistake of calling the JDB to ask what my options are before going to court. I did not make any agreements, but I was not at all careful how I discussed the claim as I was uneducated about this type of business practice at the time. I fear that this conversation may come back to bite me in court. I did appear in court, and a trial date was set. I asked the lawyer to explain the lacking information included in the complaint, and he advised me that I would receive all the info I needed about a month before the trial date. He also advised me that they wouldn't be willing to negotiate a settlement once I "let it get that far." (Insert eyeroll.) Just as he advised, a packet arrived that seemed damning at first glance: Affidavit from JDB records keeper Bill of Sale/ Assignment of Loans (which was already included in previously delivered complaint - no account numbers, etc) Account statements (that began nearly two years after the date the alleged account was allegedly opened. Date of amt owed on last statement differs from the amt I allegedly owe) Affidavit of Sale/ Certification of Debt signed by OC (Dated over a year after the alleged date of acquisition. Obviously in preparation for litigation. Also, Google says the "Bank Officer" who signed is a Mortgage Specialist in a different sector of the parent company.) Spreadsheet with just the information of the account in question. So. I stewed for a while on whether or not I should attempt to settle as I was intimidated by the paperwork. However, I am not convinced that the debt is mine. Just concerned that I cannot defend it. I decided to attempt to verify the information by calling the OC. I was told that any of my account information was archived as I had not been an active customer in several years (I had various accounts with them over a ten-year period). I advised them of the suit against me, and I asked if they would be willing to verify information in the claim. They said they could not. I was advised that they only have a profile to store my personal information as a customer, but no information regarding previous accounts as it has all be archived. I asked for anything they could provide in terms of a contract for a credit account, and they told me they can't access anything. They advised me to request this information from anyone who was suing me as anyone who would have purchased an account from them should have all available documentation accessible. So, I decided to call the JDB to attempt to request this sort of documentation. Again, what was I thinking? This was only last week, but I know so much more now. I wish that I would've gone about this differently. I hope that I didn't say anything that can be used against me in court. I was transferred to multiple people who did their best to convince me that I just needed to shut up and pay up. That they have sent me all the validation they need to, and that a judgement is the next step if I don't pay. I asked for contact information for an attorney or someone in records who could help, and I was told there was no one who would take my call and that I should just ask my questions in front of a judge. Um. Ok, I will. Between that call and the trial date (earlier this week), I did a lot of research to see how many holes there are in the case they have presented. I'm probably countless steps behind, but I decided to file a Sworn Denial before we went to trial to have my stance made clear. I showed up to court feeling really confident, but still worried that I would not be able to effectively defend myself. Partly because the atmosphere of the court is surprisingly informal. I really like the judge. I like the way he doesn't take crap from anyone, but he is compassionate and makes jokes through the session. I was relying on my ability to appeal to his reasonable side, but I also am not confident enough in my understanding of the process to speak with authority on my concerns about the "evidence." I found myself wishing I had more time and reasonably nervous that I would be leaving with a judgement. The lawyer sat down with me prior to the trial and asked if I recieved the packet and asked if I had any questions. I told her that I have a lot of questions and also presented her with the Sworn Denial. She advised that she may not be able to answer my questions, but she would like to know how she could help. I told her I didn't recognize any of the account information, and showed her the apparent opening date of the account. I told her that I was confused about why I would only have statements from the last year the account was open and no contract to show how I would have been responsible for the account. I also asked her where the amount in the first statement that was presented came from. She simply advised me that they can't go all the way back through the account, but said she would ask the judge for a continuance in hopes that the JDB would get me the information I needed. Was I wrong to do a happy dance on the inside? It gives me a little confidence that I presented enough of an issue to keep her from being able to prove her case with the information they gave me. But now the question is, how do I effectively go on the attack? Some thoughts.. I believe I still have a couple of days to file a Motion to Strike. Based on what I've read I have 30 days in TN. I wonder if I should skip that and file a Motion to Dismiss? Should I file them both? Create my own affidavit? Send the JDB a Request for Production? I would love to threaten them with a counterclaim, but I'm not sure how much of a case I would have. I am more interested in scaring them off than I am pursuing them. I am off to do more research. If you are still reading, thanks for taking the time. TIA for any particular thoughts or similar experience.
  14. I am being sued by in Minnesota. I was served Summons and Complaint in October of 2012. I answered and then recieved Interogs/Discovery in August of 2013. I responded to everything in a timely manner. I did not ask for discovery. They filed with the court on December 9th and recently served me with all the pleadings for a Summary Judgment. I have quite a stack of paperwork. In sum, the action was commenced (I was served by process server) on October 9th of 2012 and they filed with the court on December 9th, 2013. I think they missed their deadline. Could it really be this easy? The rule was ammended as of July 2013. Maybe they missed it? File a motion to dismiss as a matter of law? Minn. R. Civ. P. 5.04 Filing; Certificate of Service Any action that is not filed with the court within one year of commencement against any party is deemed dismissed with prejudice against all parties unless the parties within that year sign a stipulation to extend the filing period. This paragraph does not apply to family cases governed by Rules 301 to 378 of the General Rules of Practice for the District Courts. All documents after the complaint required to be served upon a party, together with a certificate of service, shall be filed with the court within a reasonable time after service, except disclosures under Rule 26, expert disclosures and reports, depositions upon oral examination and interrogatories, requests for documents, requests for admission, and answers and responses thereto shall not be filed unless upon order of the court or for use in the proceeding. The administrator shall not refuse to accept for filing any documents presented for that purpose solely because it is not presented in proper form as required by any court rule or practice. Documents may be rejected for filing if tendered without a required filing fee or a correct assigned file number, or are tendered to an administrator other than for the court where the action is pending. (Amended effective March 1, 1994; amended effective January 1, 1997; amended effective March 1, 2001; amended effective September 1, 2012; amended effective July 1, 2013.)
  15. I'm in Florida - I am currently in foreclosure. Case was filed 8/2012. I did not request an extension of time and filed my answers and affirmative defenses (all 28 of them) within the 20 days. One defense was the non-resident cost bond issue. At the end of December, I filed motion to dismiss for failure to post cost bond. End of January, they filed motion for extension of time to answer my answer/affirmative defenses. End of April, they posted cost bond. Neither of us had set a hearing for either motion. About a week ago, I received a notice of hearing on my motion to dismiss (not their motion for extension of time). Since they (finally) posted the bond, should I still fight for the MTD, as the bond was posted almost 6 months past the date of filing the complaint? I'm also assuming that they will bring up their motion for extension of time. Should I fight this as well, since they have already had almost a year to answer? I am really hoping to have it dismissed, as the 5 years since my last payment just passed, as well as the new law requiring the banks to jump through hoops to file a foreclosure complaint. What should I expect to happen at the hearing? (not looking for the outcome, of course. Just want to know how the hearing is structured for something like this)
  16. I need some help with determining what all needs to be filed for a motion to dismiss charges.
  17. I discovered that most of the Banks suing me are not registered in my state of Colorado. I thought this fact would allow me to dismiss the case, but lack of capacity cannot do it. Trial court erred in treating plaintiff's alleged lack of capacity to sue as a lack of subject matter jurisdiction. Ashton Props., Ltd. v. Overton, 107 P.3d 1014 (Colo. App. 2004). I do cover lack of subject matter jurisdiction in my defenses, yet now we are nearing trial. Can you suggest how I proceed? Here is my legal treatment so far, Motion to Dismiss - Subject Matter Jurisdiction A. Memorandum of Law Defendant claims that on the date this action was commenced, Bank "lacked standing and capacity to bring this action, depriving the court of subject matter jurisdiction. Defendant claims that Plaintiff is not registered as a foreign entity in the State of Colorado, considered a fictitious entity, and therefore is not a legally protected interest in the State of Colorado. C.R.S. 7-90-802. Consequences of transacting business or conducting activities without authority (1) (a) No foreign entity transacting business or conducting activities in this state without authority, nor anyone on its behalf, shall be permitted to maintain a proceeding in any court in this state for the collection of its debts until a statement of foreign entity authority for the foreign entity is filed in the records of the secretary of state. ( A court may stay a proceeding commenced by a foreign entity until it determines whether the foreign entity should have a statement of foreign entity authority on file with the secretary of state. C.R.S. 7-90-802 “Until a foreign corporation complies with this section, it has no capacity to sue.” King Copper Co. v. Dreher, 68 Colo. 554, 191 P. 98 (1920). Lack of standing as a non-registered foreign corporation has also been supported in other states, i.e., Ohio Supreme Court, Case No. 2008-1056 C.R.C.P. 12((1) Two-pronged test for standing. First, the plaintiff must have suffered an injury in fact, and second, this harm must have been to a legally protected interest. Grand Valley Citizens' Alliance v. Colo. Oil & Gas Conservation Comm'n, __ P.3d __ (Colo. App. 2010), rev'd on other grounds, 2012 CO 52, 279 P.3d 646. Since a defense predicated upon a lack of subject matter jurisdiction may be raised in a motion "made at any time" pursuant to C.R.C.P. 12, “Issues concerning subject matter jurisdiction may be raised at any time.” Sanchez v. State, 730 P.2d 328 (Colo. 1986); People in Interest of Clinton, 742 P.2d 946 (Colo. App. 1987). If the plaintiff fails to establish that the trial court has subject matter jurisdiction, the court must dismiss the matter. Any other order or judgment entered by the court would be void and unenforceable. Adams County Dept. of Soc. Serv. v. Huynh, 883 P.2d 573 (Colo. App. 1994); City of Boulder v. Pub. Serv. Co. of Colo., 996 P.2d 198 (Colo. App. 1999). B. Conclusion Bank, as a non-registered foreign corporation in the State of Colorado, the party bringing this action, never had the authority or capacity to bring forth a suit in this state, therefore, under C.R.C.P. 12((1) the court does not have subject matter jurisdiction. The Defendant hereby requests the Court to dismiss the Plaintiff’s complaint due to lack of Subject-Matter Jurisdiction.
  18. I just claimed a defeat with a denial of a Motion for Summary Judgment. Is there anything I should or can do to stop the Plaintiff from trying again? Also, When the Plaintiff first filed the complaint, it was a couple of months before the Satatue of Limitation. Now the SOL has passed. Should I claim that now? The judge's ruling reads as follows: Plaintiffs Motion For Summary Desposition: The motion is denied for the reasons expressed on the record. Plaintiff is unable to proceed to trial for the reason that it has no witnesses to proceed. This matter is accordingly Dismissed without prejudice. I want to get them before they get me this time. Thanks Everyone!!!! Oh the MSJ hearing and the Trial were scheduled one hour apart.
  19. I successfully defended a lawsuit where the Plaintiff recently threw in the towel, withdrew their case and filed their Motion to Dismiss Without Prejudice with a cover letter requesting the Judge close the file. I had a pending Motion to Dismiss with Prejudice and Motion for Sanctions which was never heard. A few things have changed since their voluntary withdrawal of the lawsuit, including the Plaintiff sending me a 1099-C for the alleged, unverified debt. The Judge never closed the file, and the Judicial Assistant stressed to me by phone, no final Order has been issued. I believe the Judge knows their was misconduct by the Plaintiff and their attorneys and wants to hear my Motion to Dismiss with Prejudice, Motion for Sanctions, and a Motion for Costs. I'd like to Amend my Motion to Dismiss with Prejudice and Motion for Sanctions as a result of the 1099-C, and other information I've recently learned. Can I Amend my Motion after their Voluntary Withdrawal of the case, or can I only call the original pending Motions to be heard? In advance, thanks to the CIC brain trust for your feedback!
  20. The Supreme Court’s decisions in Twombly and Iqbal provide district court judges with a powerful screening device to help weed out FDCPA claims that lack facial plausibility. Collectors should consider filing motions to dismiss when they are served with FDCPA complaints that do little more than track the language of the Act and claim that the collector violated it. http://www.insidearm.com/opinion/getting-fdcpa-complaints-dismissed-using-twombly-and-iqbal/
  21. My spouse was sued for a credit card debt by collection lawyers. Summons were hand delivered and we answered within the time and in the affirmative defense we counterclaimed and asked for a motion to dismiss the case. The plaintiffs responded with a "Motion to dismiss for failure to state a claim upon which relief can be granted, pursuant to Rule 12 b(6). In the Answers I asked for original application with signatures...I have 8 days to respond to this motion and need help...Thanks in advance
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