Filing a Motion to Dismiss?

[buckeyechick1219]

In my discovery requests to Unifund, I included the following request for admissions:

Admit that you are not in possession of a properly executed written assignment of debt for the alleged Citibank South Dakota NA credit card with an account number ending in ####, including the effective date of the assignment and the consideration paid or given, if any, for the assignment, with the express authorization of the collection agency to refer the assigned account to an attorney for the commencement of litigation.

And in my productions of documents, I told them to provide the above agreement if it was in their possession. They denied the admission and provided me a Bill of Sale that lists an effective date, but does not reference a specific account number. It does not list the consideration paid, nor does it specifically state that they may commence litigation. The text of it reads:

This bill of sale, assignment, and assumption agreement is dated as MM/DD/YYYY, between Citibank (South Dakota), National Association, a national banking association organized under the laws of the United State, located at 701 East 60th Street North, Sioux Falls, SD 57117 (the "Bank") and Unifund CCR Partners, Located at 10625 Techwoods Circle, Cincinnati, OH 45242 ("Buyer").

For value received and subject to the terms and conditions of the Purchase and Sale Agreement dated MM/DD/YYYY, between Buyer and the Bank (the "Agreement"), the Bank does hereby transfer, sell, assign, convey, grant, bargain, sest over and deliver to Buyer, and to Buyer's successors and assigns, good and marketable title to the Accounts described in Section 1.2 of the Agreement, free and clear of all encumbrances, equity, lien, pledge, charge, claim, or security interest.

This BIll of Sale, Assignment, and Assumption Agreement is executed without recourse and without representations or warranties including, without limitation, warranties as to collectibility.

Based on ORC 1319.12, the only criteria this meets is state the effective date of the agreement. I'm thinking I should file a Motion for Dismissal based on the grounds that they are not properly authorized to collect this debt under Ohio Code.

Any advice/suggestions/repercussions that I'm not seeing here?

[admin]

Yes, I would have that bill of sale thrown out - if there is no account number, it is worthless. It's probably a general doc that the JDB got when they bought a package of many debts.

[buckeyechick1219]

Thank you for your quick response.

I'm curious, what is the difference between a motion for dismissal and a motion for summary judgment in favor of the defendant.

As I am reading Ohio Civil procedure, it says:

When a motion to dismiss for failure to state a claim upon which relief can be granted presents matters outside the pleading and such matters are not excluded by the court, the motion shall be treated as a motion for summary judgment and disposed of as provided in Rule 56. Provided however, that the court shall consider only such matters outside the pleadings as are specifically enumerated in Rule 56. All parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 56.

I'm not sure I understand the difference between the two. In regards to MSJ, it says that a motion for summary judgment will only be made with leave of court.

[buckeyechick1219]

On a side note, yesterday my grandma brought me a piece of mail she had received for me (I lived with her for one month in 1999 and never opened a credit card with that address, mind you.) It was from NCO for...a Citibank Account. My mother also received mail at her address, which I haven't lived at since I was five, from Asset, also for a Citibank account. And I'm being sued by Unifund for a Citibank account.

Would the real purchaser of the account please stand up?

What are they doing, just randomly pulling addresses from my credit report to contact?

[admin]

Motion for dismissal usually happens after the plaintiff files a motion for summary judgment. The motion for summary judgment means "hey judge, we've proved our case, can you rule that we won?"

[calawyer]

You may want to demand that they produce the Purchase and Sale Agreement dated MM/DD/YYYY, between Buyer and the Bank (the "Agreement"). This agreement may supply the consideration and permission to sue.

[buckeyechick1219]

You may want to demand that they produce the Purchase and Sale Agreement dated MM/DD/YYYY, between Buyer and the Bank (the "Agreement"). This agreement may supply the consideration and permission to sue.

The document they sent was titled "Purchase and Sale Agreement." This is what they sent me in response to my Request for Production of Documents. I had included a Request for Admissions where I asked them to admit that they did not have a properly executed sale agreement, which they denied, and in the Production, I asked them to provide the agreement/bill of sale if they were in possession of it. This is what I received.

[buckeyechick1219]

Motion for dismissal usually happens after the plaintiff files a motion for summary judgment. The motion for summary judgment means "hey judge, we've proved our case, can you rule that we won?"

So if they don't file a motion for summary judgment, I just do nothing with it and wait till trial?

[admin]

Depending on your court procedure, you may be able to file a request to dismiss the complaint (and therefore the case).