What are the most common reasons a collection case will be granted dismissal?

[Fairy Enchantress]

What are the most common reasons a case will be granted dismissal?

(In the defendants favor.)

What do the collection attorney's do wrong over and over in most of these cases?

I answered my own question. I guess Mods. can delete this question.

Here's what I found from an attorney's web site.

The two essential things to remember when sued (which the Consumerist was kind of enough to mention), the debt collector or debt buyer must show that you (1) owe the debt to someone and (2) the debt buyer owns the debt (i.e. the "someone" you owe the debt to is, in fact, the debt buyer). In our experience, debt buyers are either unable or unwilling to prove both of these. They love to attempt to show that Alabama consumers owe somebody some amount of money but they typically ask the court to presume, to assume, to speculate, that the money is owed to the debt buyer. Thus, the critical factor most debt buyers ignore in court is to prove that they own the debt.

When debt buyers fail to show that you owe the debt and that they own the debt, many judges will dismiss the case with prejudice. Often debt buyers will agree on the morning of trial to dismiss the case with prejudice. (We believe they wait until the morning of trial in a last gasp attempt to hopefully get a default judgment against the consumer if the consumer or her lawyer does not show up at court).

[ALVA]

That blog, and the attorneys who write it, are excellent sources of information (gave me a free phone consult when I was sued by Midland)...however they are in Alabama and go by Alabama judges rulings. You may want to look for a similar blog for your state.

And, my case wasn't dismissed, I had to present a defense and answer the attorney's questions etc. It was small claims so no discovery or motions.

Luckily I was prepared and the judge ruled in our favor, but the other side tried to trip me up and intimidate me (knowing she had zero evidence) by interrupting me when my answer made their claim questionable and asking questions very rapid-fire and looking through a stack of documents as if she had a ton of evidence.

What are your affirmative defenses, by the way?

Hopefully you can get it dismissed via motion.

[Templar]

Here in NYS 99% of the time OC’s, CA’s, and JDB’s are unable to provide the minimum of basic evidence/proof for their claims in court. Also:

-Many instances Defendants and the Courts aren’t even certain who the real interested party is when it comes to litigation.

-Default Judgments are what these scoundrels seek as they attempt to pass off "own internal procedures" as Law.

[flacorps]

Consumers also can win on Statute of Limitations grounds in many instances, however the consumer needs to be ready to counter arguments that the SOL was tolled or restarted or that a longer SOL applies to their debt than the one that seems to apply on reading the statutes.

Also, there is the phantom payment problem in states where a payment can restart the SOL--the creditor simply claims you sent 'em $50 or whatever on such-and-such a date.

Finally, victory on the SOL can be pyhrric--a form 1099-C will have you paying the IRS a lot of money, and under the DBA v. Snow decision the creditor beaten on SOL grounds must send you a 1099-c for the value of their claim the following January.

[ALVA]

Also, there is the phantom payment problem in states where a payment can restart the SOL--the creditor simply claims you sent 'em $50 or whatever on such-and-such a date.

Yep, got that in court too. I used their own credit reporting against them on that one, as they showed a date of last activity two years prior to this phantom payment they claimed in court. So did you break the law and lie on the credit report, or are you breaking the law and lying now?

Also because we won due to their lack of proof that we even owed the debt, along with the SOL and other things, we were not 1099d on it.

[admin]

Here in NYS 99% of the time OC’s, CA’s, and JDB’s are unable to provide the minimum of basic evidence/proof for their claims in court. Also:

-Many instances Defendants and the Courts aren’t even certain who the real interested party is when it comes to litigation.

-Default Judgments are what these scoundrels seek as they attempt to pass off "own internal procedures" as Law.

Where did you get those stats? Not questioning the truthfulness, just thought it would be nice to quote that.

[Templar]

Here you go Admin.

This study has made a marked difference in two Upstate NY Counties where the Court insists on evidence from those OC's, CA's and JDB's to support motions for summary judgments. As a result there has been a considerable drop in applications filed within those two counties.

"....In New York, an Urban Justice Center study in 2006 found that in 99 percent of a sampling of default judgments that the evidence used to obtain the judgment did not meet the state's legal standards."

Also, grounds to apply for Motion to Vacate.

Don't ya love it!

[Fairy Enchantress]

That blog, and the attorneys who write it, are excellent sources of information (gave me a free phone consult when I was sued by Midland)...however they are in Alabama and go by Alabama judges rulings. You may want to look for a similar blog for your state.

And, my case wasn't dismissed, I had to present a defense and answer the attorney's questions etc. It was small claims so no discovery or motions.

Luckily I was prepared and the judge ruled in our favor, but the other side tried to trip me up and intimidate me (knowing she had zero evidence) by interrupting me when my answer made their claim questionable and asking questions very rapid-fire and looking through a stack of documents as if she had a ton of evidence.

What are your affirmative defenses, by the way?

Hopefully you can get it dismissed via motion.

I put down these as affirmative denfenses;

1. The defendant has no fiduciary relationship with the Plaintiff.

2. Plaintiff's documentation could have been fabricated and there is no authentication of the documentation.

3. Plaintiff has no intimate knowledge of the creation of this debt, and therefore, all documentation provided must be considered hearsay.

4. Defendant alleges that this action is time-barred under &337 of the laws of California.

5. Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fail to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.

6. Defendant alleges that the granting of the Plaintiff's demand in the Complaint would result in Unjust Enrichment, as the Plaintiff would receive more money than plaintiff is entitled to receive.

7. Plaintiff's Complaint violates the Statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person.

[nascar]

I put down these as affirmative denfenses;

...

4. Defendant alleges that this action is time-barred under &337 of the laws of California.

Are you in California or Colorado?

[Fairy Enchantress]

Are you in California or Colorado?

Oh my gosh you are so funny I never saw that smiley face before. I am still laughing.

I was in California at the time the alleged debt occured-CA.SOL is 4 years.

I moved to Colorado and SOL is 6 years. Even though some people say the CO. SOL is 3 years I am presumming 6 years just in case.

[ALVA]

The SOL for the state you live in/were sued in is usually used, so the CA SOL would not really be relevant I don't think.

[Fairy Enchantress]

I agree it might stand and it might not. I think what is really going to help is no credit cards statements, and no credit card receipts showing how the principle was accrued.And also no signed contract.