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Need some good case law for motion to dismiss


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I would like to start by saying that this forum is unbelievable! I wish I would have found you guys 3 years ago when this nightmare of a case first started. Thank you sooo much for putting something like this together, I can't begin to tell you how much I've learned from you already!

Here is the situation:

My Fiancee was sued by asset acceptance on a Providian Account they claimed belongs to her. We went to court and we disputed the debt (note: we never received an FDCPA notification letter we didn't know this was happening until we got the summons) at the time the Judge said they had to provide us with verification of the debt. Asset Acceptance then filed a request asking the Judge to allow discovery and he said yes. Instead of sending us verification they started asking us for information. We immediately sent a DV letter to them asking for the required info (Useless, I know) and they basically ignored it. They tried to win a Motion for summary judgment, but to their surprise we filed another response citing no proof of account, no account statements, no verification of the amount. Here is where things got really sketchy. Instead of setting it for trial the Judge refused to deny the motion and forced us to respond to discovery. We responded to discovery to the best of our ability, but asset brought us back into court with a motion for contempt. We provided documents and certified return receipts showing we complied but the judge pointed to a request for admissions which he said we had not filled out correctly. He asked us to just fill it out correctly and send it back quickly. we did it all the same day and thought it was over. Then a few days later we get an order granting the motion for contempt. We then filed our own motion for summary judgment citing no Account statements, no proof of ownership, no verification of the amount owed and he denied our motion. Finally on April 17, 2007 Asset filed yet another motion for summary Judgment which we of course answered. The Judge began aggressively questioning my fiancee about a signature card from 6 years ago, submitted by asset, demanding (I am serious, no embellishment here) she admit the signature is hers. My fiancee answered saying she did not believe it to be hers, and he threatened to throw her in Jail for 60 days. I immediately responded by saying "it is 6 years ago your honor, she can't admit or deny the signature on the card" and he had me escorted out by 2 bewildered and confused police officers. his behavior was so bad one of the Police officers went back an forth reporting to me what was happening in the courtroom saying "I don't blame you for your reaction, but just stay calm"

Realizing his mistake in front of credible witnesses the judge changed his tune and allowed my fiancee to speak. She asked why is that they don't have to send statements, or proof of account, but we constantly have to provide them information. The Judge finally "ordered" them to provide the Statements before we go to trial and assured my wife that the case is going to trial (no more of this extended summary judgment nonsense), Prompting the officer to tell me "your wife just cornered the other attorney, the they have to provide statements!". Problem is I don't believe the Judge. In July of 2004, the first day we set foot in the court he verbally "ordered" them to provide verification of this debt, and to date this is what we have gotten:

1. An acceptance card from 1999 that does not indicate which company it is from

2. an undated purchase and sale agreement between Arrow Financial and Providian (no signature from Arrow on the Document) with no account schedule.

3. A Purchase and Sale agreement between Asset Acceptance and Arrow Financial with an account schedule from excel printed on 10/25/2005.

4. An Affidavit by someone we have never seen in our lives claiming to know that my fiancee made charges and ran up a bill.

We have endured this harassment for 3 years, and still I don't believe the judge has denied their motion for summary judgment!

I am sorry if I have written too much, but I wanted to give you the scope of what we have endured so you will understand how important this next step is to us.

I want to file a motion to dismiss, and I would really appreciate it if someone would tell me if I am on the right track, and provide me with case law for the legal argument.

point 1: No proof of account. In 3 years they have not provided us with a single document that shows this account existed. No statements, no canceled checks, no signed agreement, nothing.

Point 2: No proof of SOL. We have received nothing verifying a DOL. the Plaintiff says it is 8/01 in their filing, but in the affidavit the supervisor states the Date of Charge off is June 22, 1999. The Judge said their is no SOL violation here, but how does he know if there is no documentation verifying the date.

Point 3: No Proof of Ownership. The Plaintiff has provided 2 very sketchy purchase and sale agreements, but neither one identify what debts were purchased. Don't they have to prove they own this debt?

Any other reasons for dismissal that I could use would be greatly appreciated.

FYI: We live in South Florida and this is an account which the Plaintiff claims was opened on (believe it or not) June 22, 1999. (yes the stated date of open and charge off are the same in the affidavit)

thank you in advance to all that provide some much needed insight. I look forward to learning from you all.

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Unless you like to write posts looking for sympathy, get yourself a lawyer who knows this Court. Look at naca for one in your area.

The judge gave lots of leeway but it sounds like he is losing patience with you for whatever reason. Frankly, your wife saying " she can't say" if it is her signature on a card is like Ollie North testifying in Congress. Not going to hold up. You need to repair this and at this point a lawyer will help. You've gone this far. Put your money where your mouth is.

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I appreciate your help, as you can tell I am new to this forum and i am trying to learn how to operate within. I will take your advice, and in the future I will limit my post. I just wanted to provide as much relevant info as possible to get an accurate answer.

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I just wanted to provide as much relevant info as possible to get an accurate answer.

It's always good to provide plenty of info. In this case, it's very clear that you are going to need an attorney to get you through the rest of this.

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Unless you like to write posts looking for sympathy, get yourself a lawyer who knows this Court. Look at naca for one in your area.

The judge gave lots of leeway but it sounds like he is losing patience with you for whatever reason. Frankly, your wife saying " she can't say" if it is her signature on a card is like Ollie North testifying in Congress. Not going to hold up. You need to repair this and at this point a lawyer will help. You've gone this far. Put your money where your mouth is.

First of all, there has been no leeway. If anything it has been the exact opposite. As i sure you know (we did not until now) the Court is supposed to be lenient with a pro se. Instead of leeway for us he has provided leeway for the Plaintiff. In 3 years we have not recieved one account statement, canceled check, or any document showing there ever was an account from this JDB, yet the case continues. We have shown a material dispute of the facts yet he has allowed them to file a motion for summary judgment 3 times. Even after the last episode the case still has not been set for trial. you tell me where there is leeway!

The acceptance card (which we have no recollection of) was signed in 1999, and the judge is asking almost 8 years later if my wife signed the card. You tell me if you can admit to signing an 8 year old document you don't remember! My wife has stated she cannot recall signing this card, adding "I can neither admit or deny." This is not a mortgage on a home, this is an unsolicited offer of credit which does not identify any particular company, account number, or any relationship to this case.

Lastly, if we could afford a lawyer it wouldn't be a question, we would have one. We have been traumatized by this experience, and the countless number of hours spent researching and learning to operate in an environment we know absolutely nothing about is overwhelming.

please, take time to understand the facts before you comment, or better yet if you don't have anything intelligent to offer please keep your comments to yourself

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please, take time to understand the facts before you comment, or better yet if you don't have anything intelligent to offer please keep your comments to yourself

You are here looking for free help. That kind of comment is unnecessary.

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It's always good to provide plenty of info. In this case, it's very clear that you are going to need an attorney to get you through the rest of this.

I have believed this since the beginning of this case. Unfortunately I can't afford one right now, but I will try to examine options

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You are here looking for free help. That kind of comment is unnecessary.

"Put your money where your mouth is" "That is not going to fly" "unless you like to write posts looking for sympathy"

What kind of comments are those. yes i am looking for help, not to be belittled, and if I can I would like to offer some help and insight to others. this is a very difficult experience shared by many at this wonderful forum, no one needs or wants to be mistreated or talked down to.

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I understand the not being able to afford an attorney problem.

Have you looked into Legal Aid in your area? I've never had to use them--but they can be quite helpful. Also--lots of attorneys will give you a free consultation, perhaps if you speak to a couple of them you'll find one that can help you out at a minimal cost.

Another thing people forget about is union membership....many unions have their own legal aid for members. I don't think they actually go to court with you, but they can assist you in filling out and filing the paperwork required. They can also help you find an attorney that can help you and is affordable.

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sorry you don't want to read this, but you're way over your head with this case. the judge has been very lenient, and the fact you don't see it shows you really don't understand all you need to in order to defend your case.

you need someone to take over your case. the judge's patience is running out and I seriously doubt he's going to see things your way, even if you are right.

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sorry you don't want to read this, but you're way over your head with this case. the judge has been very lenient, and the fact you don't see it shows you really don't understand all you need to in order to defend your case.

you need someone to take over your case. the judge's patience is running out and I seriously doubt he's going to see things your way, even if you are right.

In what way has the judge been lenient? Perhaps this is an opportunity to learn. What exactly has the judge done that indicates to you he was lenient?

This way I know what to expect when he is not being lenient

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The judge was being lenient when he allowed you several 'tries' in filling out the documents that were ordered by the court.

I don't know what you sound like, or how you handle yourself in court. I do know that I have been in your situation and I have watched many a defendant go before the judge on these types of matters. The one thing I realized right away is that judges don't like to be provoked. They are sitting on the bench because they have already 'learned' the laws and have either practiced, taught or both. (There are some judges who are on a power-trip, but most are pretty cool.)

If you go into the courtroom talking like a lawyer and you're not a lawyer--that doesn't go over real well. There are so many subtlties in the law that us regular people just don't know or recognize. Judges usually give 'regular' folks a bit of leeway--I've even seen them help a person who is a little confused and is sincere in trying to get something straightened out. They don't like argumentitive either. You get off on the wrong foot and make a bad impression in the begining--you might as well consider it a loss. You have to remember--the courtroom BELONGS to the judge--you play by his rules.

If you insist upon representing yourself, you may be able to redeem yourself by asking the judge to forgive your previous behaviour. You may add that this has you terribly upset and stressed and that you are trying your best to handle the matter appropriately in your representation of your case. Then shut the hell up.

Also--'I don't know.' is not an answer. That's what kids say so that they don't have to take responsibility for their actions. If you're claiming that the debt is not hers, the obvious answer would be 'No.' By skirting around the issue you look like you're trying to pull one over on the court. And never offer more than what is asked.

This stuff is frustrating, it makes ya mad and nervous....but you have to maintain good bearing in court. Good Luck.

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You assume the judge made a mistake. I think he was grasping for his last shred of leniency. You have been unsuccessful trying to dismiss a case that should have been disposed of a long time ago should you had the right legal arguments and defenses. It's going to be very difficult for you to come back with a magic bullet to change his impression. Get a lawyer!!!

Realizing his mistake in front of credible witnesses the judge changed his tune and allowed my fiancee to speak.
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I didn't mean to offend you, Bigman, and I apologize if I did. But I've been doing this for awhile and I was trying to make a point to you, plain and simple. Three years is way too long for a simple debt case. Maybe he is upset at you and the plaintiff for taking up the court's time , but it sounds like he is most tired of you. So, the advice to get a lawyer is meant with all sincerity and a desire to see you get the longest shrift you can from the judge. I hate seeing good people spin their wheels in internet mud. This is not an oracle.

Today I had an arbitration. The JDB had absolutely spit and the debt is clearly not my client's. He presents well and is entirely credible. But the plaintiff's lawyer and the arbitrator are good ole Saratoga neighbors, so she gave the lawyer 30 days to come up with something. She should have just thrown it out, and they will likely ask to withdraw now, but that lawyer bought his client a graceful withdraw because he could ask her for time. You could use some real help. Get some.

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Everyone has given good advice to Bigman. I've read and re-read this thread. I can see where I was (and probable will be again) in his shoes. If you don't have anymore pencils to sell on the corner to buy yourself a bona fide lawyer then this is the best advice I can see that has been offered for your situation.

Originally posted by robynhgl

If you insist upon representing yourself, you may be able to redeem yourself by asking the judge to forgive your previous behaviour. You may add that this has you terribly upset and stressed and that you are trying your best to handle the matter appropriately in your representation of your case. Then shut the hell up.

Hit the books and hit them hard. Practice your argument in front of the mirror or have a third-party audience critique your speech and demeanor.

It's hard to be humble until you think of the consequences if you're not.

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The judge was being lenient when he allowed you several 'tries' in filling out the documents that were ordered by the court.

I don't know what you sound like, or how you handle yourself in court. I do know that I have been in your situation and I have watched many a defendant go before the judge on these types of matters. The one thing I realized right away is that judges don't like to be provoked. They are sitting on the bench because they have already 'learned' the laws and have either practiced, taught or both. (There are some judges who are on a power-trip, but most are pretty cool.)

If you go into the courtroom talking like a lawyer and you're not a lawyer--that doesn't go over real well. There are so many subtlties in the law that us regular people just don't know or recognize. Judges usually give 'regular' folks a bit of leeway--I've even seen them help a person who is a little confused and is sincere in trying to get something straightened out. They don't like argumentitive either. You get off on the wrong foot and make a bad impression in the begining--you might as well consider it a loss. You have to remember--the courtroom BELONGS to the judge--you play by his rules.

If you insist upon representing yourself, you may be able to redeem yourself by asking the judge to forgive your previous behaviour. You may add that this has you terribly upset and stressed and that you are trying your best to handle the matter appropriately in your representation of your case. Then shut the hell up.

Also--'I don't know.' is not an answer. That's what kids say so that they don't have to take responsibility for their actions. If you're claiming that the debt is not hers, the obvious answer would be 'No.' By skirting around the issue you look like you're trying to pull one over on the court. And never offer more than what is asked.

This stuff is frustrating, it makes ya mad and nervous....but you have to maintain good bearing in court. Good Luck.

Ok,

I appreciate your input, but I have to disagree.

first of all, the Judge did not give us "several tries" to do anything. There was one request for production that he had to search long and hard to find anything wrong with it. He actually asked the Plaintiff "why are we here?" before finding a section where instead of saying admitted or denied we had an explanation. the Plaintiff suggested that we did not comply, and we had proof that we did comply (with perhaps a technical mistake).

Secondly, you are making the suggestion that maybe we were trying to sound like lawyers, we are not. We simply are trying to defend my wife against a JDB with no legit case. Moreover what does the way we sound have to do with anything. You folks are suggesting that it is ok for a Judge to say "screw the law, I don't like the fact that you sound like a lawyer so I'm going to do my own thing." That is flat out ridiculous, and if that is acceptable behavior for our Judges then our legal system is in trouble.

Lastly,

No one said anything about "I don't know", but for the record I don't recall is an answer. One of the reasons the statue of Limitations for an open ended Debt (not founded on a written agreement)is 4 years as opposed to 5 years for a written agreement is because people forget. Let someone place a completely unidentified document in front of you that you supposedly signed 8years ago and your going to say "no I didn't sign it?" or "yes that is my signature?". People Forge signatures all the time. With the technology today no one knows how a document may have been created.

Again, I really do appreciate your input because i believe you are really trying to make a point that contributes to the dialog, I just don't agree.

That being said I can see where A lawyer might change the pace because I have a bad Judge who is negelcting his responsibility to the law.

Anyone with some case law, I am still looking to file my motion to dismiss to set myself up for appeal if in fact this judge does award this bogus Plaintiff a judgment (3 motions for summary Judgment and three years without setting this for trial and the judge is being lenient to us, go figure)

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I didn't mean to offend you, Bigman, and I apologize if I did. But I've been doing this for awhile and I was trying to make a point to you, plain and simple. Three years is way too long for a simple debt case. Maybe he is upset at you and the plaintiff for taking up the court's time , but it sounds like he is most tired of you. So, the advice to get a lawyer is meant with all sincerity and a desire to see you get the longest shrift you can from the judge. I hate seeing good people spin their wheels in internet mud. This is not an oracle.

Today I had an arbitration. The JDB had absolutely spit and the debt is clearly not my client's. He presents well and is entirely credible. But the plaintiff's lawyer and the arbitrator are good ole Saratoga neighbors, so she gave the lawyer 30 days to come up with something. She should have just thrown it out, and they will likely ask to withdraw now, but that lawyer bought his client a graceful withdraw because he could ask her for time. You could use some real help. Get some.

I too apologize my friend,

it appears I have taken your comments out of context

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You assume the judge made a mistake. I think he was grasping for his last shred of leniency. You have been unsuccessful trying to dismiss a case that should have been disposed of a long time ago should you had the right legal arguments and defenses. It's going to be very difficult for you to come back with a magic bullet to change his impression. Get a lawyer!!!

This is what I don't understand. On one hand he is being lenient, but on the other he is keeping a case around that should have been disposed of a long time ago. I'm sorry but this just doesn't compute. If he is providing us the leniency that a Pro-se is expected to recieve wouldn't he see things from our perspective a bit more? no proof of account, no statments, no proof of ownership (no account schedule to go along with the so called purchase and sale agreement), no verified DOLA and he doesn't just deny their motion for summary Judgment which the law says he is supposed to do. If he just denies their motion for summary judgment they have to go to trial with no proof at all. Instead he gives them 3 years to find the docs (which they won't find because the case is bogus). As a pro se you tell me I have to put together the "right arguments" for that?!!!

I will acknowledge though, it would be nice to have a lawyer. Hopefully soon i will be able to afford one.

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This is what I don't understand. On one hand he is being lenient, but on the other he is keeping a case around that should have been disposed of a long time ago. I'm sorry but this just doesn't compute.

He can't throw the case away just like that. There must be some legal basis for his decision based on arguments you failed to make. Like for example, claiming that the affidavit they provided to support their claim is hearsay, so they failed to make a prima facia case. Your claiming you don't know the person who made it, although true, is not a legal challenge.

If he is providing us the leniency that a Pro-se is expected to recieve wouldn't he see things from our perspective a bit more? no proof of account, no statments, no proof of ownership (no account schedule to go along with the so called purchase and sale agreement), no verified DOLA and he doesn't just deny their motion for summary Judgment which the law says he is supposed to do. If he just denies their motion for summary judgment they have to go to trial with no proof at all. Instead he gives them 3 years to find the docs (which they won't find because the case is bogus). As a pro se you tell me I have to put together the "right arguments" for that?!!!

You claim they did not show proof of many things, but unless you challenge them from a legal standpoint, the judge HAS to accept their documents as TRUE and CORRECT.

Among other things, you should have filed a motion to dismiss a long time ago! That way this wouldn't have dragged on and on for years.

I will acknowledge though, it would be nice to have a lawyer. Hopefully soon i will be able to afford one.

It will be worth it.

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Originally posted by bigman

Instead he gives them 3 years to find the docs

Check your RCP and see if you have something like Iowa does. Basically, cases do drag on for years if no one complains. But the defendant can ask for dismissal for Want Of Prosecution after the first year.

Rule 1.944 Uniform rule for dismissal for want of prosecution.

1.944(1) It is the declared policy that in the exercise of reasonable diligence every civil and special action, except under unusual circumstances, shall be brought to issue and tried within one year from the date it is filed and docketed and in most instances within a shorter time.

1.944 (2) All cases at law or in equity where the petition has been filed more than one year prior to July 15 of any year shall be for trial at any time prior to January 1 of the next succeeding year. The clerk shall prior to August 15 of each year give notice to counsel of record as provided in rule 1.442 of the docket number, the names of parties, counsel appearing, and date of filing petition. The notice shall state that such case will be for trial and subject to dismissal if not tried prior to January 1 of the next succeeding year pursuant to this rule. All such cases shall be assigned and tried or dismissed without prejudice at plaintiff’s costs unless satisfactory reasons for want of prosecution or grounds for continuance be shown by application and ruling thereon after notice and not cx parte.

1.944(3) This rule shall not apply to the following cases provided, however, that a finding as to “a” through “e” is made and entered of record:

a. Cases pending on appeal from a court of record to a higher court or under order of submission to the court.

b. Cases in which proceedings subsequent to judgment or decree are pending.

c. Cases which have been stayed pursuant to the Soldiers’ and Sailors’ Civil Relief Act of 1940 [50 U.S.C. app. §5011

d. Cases where a party is paying a claim pursuant to written stipulation on file or court order.

e. Cases awaiting the action of a referee, master or other court-appointed officer.

1.944 (4) The case shall not be dismissed if there is a timely showing that the original notice and petition have not been served and that the party resisting dismissal has used due diligence in attempting to cause process to be served.

Don't forget to be humble when you ask the Court. When I say this to you I am also talking to myself. It's hard being nice to someone who is generally favoring the JDB's. It is probably one of the strongest defenses you can muster.

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