NefertitiX Posted October 21, 2006 Report Share Posted October 21, 2006 If a Defendant's response to a complaint is:1 - Complaint is in whole or in part barred by SOL and2 - Plaintiff failed to state cause of actionWhat is the correct course of action? Basically, since the statute is clear about the time in which to bring a claim, do I file a MSJ based on their failure to state an affirmative defense? Or is that an issue of fact to be determined at trial?Thanks, Nef Link to comment Share on other sites More sharing options...
nascar Posted October 21, 2006 Report Share Posted October 21, 2006 Think of it this way; there are NO facts unless entered into the record. If the plaintiff's complaint fails to state a cause of action, then the action can be dismissed by motion. If you proffer an affirmative defense, that would be a question of fact yet to be established UNLESS the conditions are already admitted to by the plaintiff. For example, the plaintiff states somewhere in his complaint that you last made payment in 1999 (and the SOL has expired based on that date). Since the plaintiff has admitted that FACT, the action could be dismissed on motion. If the question of SOL is not proven, or admitted to, then you have to offer proof that can be entered as evidence. Link to comment Share on other sites More sharing options...
NefertitiX Posted October 21, 2006 Author Report Share Posted October 21, 2006 Thanks nascar...I got it! Link to comment Share on other sites More sharing options...
Recovering Attorney Posted October 21, 2006 Report Share Posted October 21, 2006 I'm guessing they put the SOL defense in because the complaint didn't have dates in it, or it is unclear when the wring allegedly ocurred. Failing to state a cause of action is a catch all and is not the subject of a msj to dismiss. Link to comment Share on other sites More sharing options...
NefertitiX Posted October 22, 2006 Author Report Share Posted October 22, 2006 No, the exact dates or approximate dates are all in the complaint. Their position is that even though I cite FCDPA violations within the last year the fact that I also mention violations from previous years (only done to show persistance and establish willfull disregard for the law) means that the FDCPA SOL has run. Their attorney said that the clock starts ticking on the FDCPA at the first violation and once that SOL expires they get a free pass on future FDCPA violations. Can you believe that?! Okay, I just wanted to make sure that I wasn't missing an opportunity to get an early judgement based on his lack of actual defenses.Thanks RA! Link to comment Share on other sites More sharing options...
direred Posted October 22, 2006 Report Share Posted October 22, 2006 Their attorney said that the clock starts ticking on the FDCPA at the first violation and once that SOL expires they get a free pass on future FDCPA violations. Can you believe that?!Sounds like a false or misleading statement in an attempt to collect a debt.Add another cause of action. Link to comment Share on other sites More sharing options...
NefertitiX Posted October 23, 2006 Author Report Share Posted October 23, 2006 I like the way you think... Link to comment Share on other sites More sharing options...
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