Jump to content

motion to dismiss or appear again?


MillerFam
 Share

Recommended Posts

Hey all,

Ok, so the post "stipulations for settlement" was my wife's case, and Crap 1 is also suing me in a seperate case at the same time. Both of us had these accounts before we wven knew each other (over 6 years ago). For hers, if we knew what we were doing to begin with, we peobably could have gotten it thrown out since thet SOL has expired on both of us. However, live and learn.. now I need help with mine.

I had a case management hearing on 9/11, the Plaintiff didn't show up. At that time, (in hindsite) I now know I should have asked thejudge to dismiss it, but I fumbled and couldn't find the right words (they move so quickly with these things). At any rate, he fined them $150 for failure to appear and ordered another hearing on 11/14.

I am prety confindent that they will not show at the next hearing either, they are a So. Cal law firm (Collection Agency) and I doubt they want to fly someone to Nor. Cal. to deal with this.

What do I do now? File a motion to dismiss? File for production of documents (they still haven't provided proof that this is a valid debt, however, i didn't request it in writing). I have never received anything from this collection agency law firm except the summons. no phone calls, no "we plan to file" notice... Below is the motion to dismiss I was planning on filing.. any advice? HELP!!!

-------------------------

The Defendant submits the following motion to dismiss case number VCM----- with prejudice. This motion is based on the following points and authorities as well as any further authorities and oral argument permitted by the court.

STATEMENT OF FACTS

This case exceeds the statue of limitations outlined in CCP 335 and CCP 337 paragraph 2.

Plaintiff violated procedure required before filing a complaint PER (i think there is something saying that they are required to notify me that they plan to file and that they have to attempt to collect before they can file.. i just don't know the "law" to quote.. I am looking for that too)

ARGUMENT

I. THIS CASE IS PAST THE 4 YEAR STATUTE OF LIMITATIONS.

In the complaint, the plaintiff alleges that the defendant became indebted to the plaintiff

“Within the last four years on an open book account for money due because an account was stated in writing by and between plaintiff and defendant in which it was agreed that defendant was indebted to plaintiff.” and “within the last two years for goods, wares, and merchandise sold and delivered to defendant and for which the defendant promised to pay plaintiff the sum of $1,435.20”

This is simply not true, the account in question was obtained in 2001. And has not had any activity, including payments or any new charges since at least early 2003, which is beyond the 4 years stated in the statute for bringing forth action.

II. PLAINTIFF FAILED TO CONTACT DEFENDANT

OR NOTIFY HIM OF THEIR INTENT TO FILE SUIT.

According to __(same as above, looking for the law to quote here)__________, a debt collector, including attorney’s acting as debt collectors, must first contact the debtor to attempt to collect the debt and must notify the debtor that they intend to file suit if debt is not paid.

Defendant has had no contact with the plaintiff or the collection firm that has purchased the debt or that was assigned to collect the debt. Defendant was also NEVER notified that they intended to file suit. The defendant was served at work since they did not have his home address, which further verifies that they had not communicated with him in regards to this debt to notify him of his debt or the intention to file suit prior to doing so.

III. PLAINTIFF DISRESPECTED COURT BY NOT APPEARING AT SCHEDULED HEARING ON SEPTEMBER 11, 2007

On the scheduled case management hearing on September 11, 2007, the plaintiff, or representation for the plaintiff, did not appear. It is disrespectful to the court to file a complaint and not take the time to appear when assigned.

CONCLUSION

For these reasons, the Defendant respectfully requests that the court dismiss this case with prejudice as allowing them to re-file at a later date would surely be a violation of the above mentioned statute of limitations.

--------------------------

ANy help or guidance would be greatly appreciated..

DM

Link to comment
Share on other sites

they don't have to contact you before they file.. Unifund , for example is known for this.. they don't call or send dunning letters they just file.

If they don't show you ask the judge to dismiss it with predjudice.. and I am confused if its out of the SOL.. was that not enough for the judge to dismiss it anyway??

Link to comment
Share on other sites

Sounds like you were tongue tied, it happens to the best of us.

You can file the motion to dismiss on SOL grounds any time you like. File, send the idiots a copy CMRRR and have the motion heard ASAP. Dont even bother waiting till Nov. The case is a no go, they are filing SOL, which in itself is a FDCPA violations... taking actions they are not legally entitled to take... so you can sue them over that later if youo want.

Now, the burden is on YOU to prove it is SOL if you are claiming it is for the motion, so you need to include proof... usually as exhibit A in a "Memorandum in Support of the Motion to Dismiss", to prove a prima facia assertion that it is in fact SOL.

But you dont have to wait, you can be the agressor in the motion to dismiss.

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.