How do I know if I am better moving towards a summary judgment or motion to dismiss?

[beeboah]

I like the summary judgment idea better, I assume I wouldn't have to miss work and drive cross county to defend?

Why is a motion to dismiss used then?

Could someone please clarify?

Thanks

[IHateCAs]

It likely will depend on what stage of the suit you are at. If you are already conducting discovery, a MTD would be converted to a MSJ.

MTD is more of a preliminary action that disposes of the case because it's obvious there are no real issues raised in the complaint. If, for instance, you were being sued on a 20 year old debt when the SOLC was 5 years, you could MTD on those grounds straight away.

If you were suing a furnisher under the FCRA under 1681(s)(2)(a), they could MTD to dispose of your case as furnishers are not liable under that section.

[beeboah]

It likely will depend on what stage of the suit you are at. If you are already conducting discovery, a MTD would be converted to a MSJ.

MTD is more of a preliminary action that disposes of the case because it's obvious there are no real issues raised in the complaint. If, for instance, you were being sued on a 20 year old debt when the SOLC was 5 years, you could MTD on those grounds straight away.

If you were suing a furnisher under the FCRA under 1681(s)(2)(a), they could MTD to dispose of your case as furnishers are not liable under that section.

Ok, thanks for this, additionally i think i gave some wrong information on here when I said that a SMJ was a motion for a summary judgment. It is honestly a case of dislexia.

Well I haven't initiated discovery. I have been doing some research and was told that "private" discovery is better than public discovery as it keeps the black robe out of it.

I really do believe this.

So this is where I am at:

I went to my return date (in VA your answer is your appearance to your first hearing) and filed a motion to quash for improper service. My motion was granted although I did not move to dismiss. I let the judge force the Plantiff force the attorney to push an alias summons on me (serve me again). I have about 3 months before trial now and maybe the attorney will voluntarily dismiss for the hassle.

So prior to the return date, I had faxed the attorney a SWORN DENIAL to the affidavit made by the creditor.

I also sent a barrage of faxes with delivery confirmations and first class mails asking for a signed contract bearing my signature. The attorney never responded.

In addition, I have raised the issue of proper standing. (Does the attorney have the right to sue me on behalf of the creditor?)

So to recap and IMHO, the attorney no longer has a witness due to my sworn denial, the attorney has not responded to my verification requests, and probably won't respond to my proper standing.

I think that I can wack them with a MSJ. I will attach proof of delivery and copies of envelopes etc.

What do you think?

[IHateCAs]

So prior to the return date, I had faxed the attorney a SWORN DENIAL to the affidavit made by the creditor.

Is this account a case of mistaken identity? Is it not yours?

In addition, I have raised the issue of proper standing. (Does the attorney have the right to sue me on behalf of the creditor?)

Who is listed as the plaintiff? If the OC is listed as the plaintiff, they are being represented by that attorney. A business has to retain an attorney to sue. Businesses can't pro se.

[sand]

ghacorp

Well I haven't initiated discovery. I have been doing some research and was told that "private" discovery is better than public discovery as it keeps the black robe out of it."------How do you get the quote thing to work?

Anyway, where did you research about the private discovery? Is this because the judge reads your discovery if it's public? I thought that is a good thing. Enlighten me please.

I hope someone answers your question. I'd like to know also.

IHateCA's,

Explain how a MTD converts to a MSJ. You mean we can get a case dismissed and be awarded a judgement from the plantiff?

[beeboah]

Is this account a case of mistaken identity? Is it not yours?.

No, it is mine.

Who is listed as the plaintiff? If the OC is listed as the plaintiff, they are being represented by that attorney. A business has to retain an attorney to sue. Businesses can't pro se ?

It is my understanding that an attorney can lie, and pretend that they are representing the OC, hence my question to the OC on proper standing. (Which the OC will not respond to, I am confident).

A do believe that a business can sue you in small claim claims court, thereby acting pro se (e.g. they use an attorney that is on their payroll). I believe that the reason this is in general district court is so that they can take advantage of using an external lawyer.

[beeboah]

ghacorp

Well I haven't initiated discovery. I have been doing some research and was told that "private" discovery is better than public discovery as it keeps the black robe out of it."------How do you get the quote thing to work?

Anyway, where did you research about the private discovery? Is this because the judge reads your discovery if it's public? I thought that is a good thing. Enlighten me please.

I hope someone answers your question. I'd like to know also.

IHateCA's,

Explain how a MTD converts to a MSJ. You mean we can get a case dismissed and be awarded a judgement from the plantiff?

I meant SMJ, I am dislexic. I researched the private discovery on another forum. Yes, that is why...if the judge reads the discovery its public. Private discovery would help keep the judge from acting for the best interest of the adverse party (This is what I read)...will enable me to move towards SMJ.

Hope this helps.