Jump to content

To MTD or Not to MTD


yescats
 Share

Recommended Posts

In North Carolina, you'll want to consolidate it into one document. The affirmative defenses which provided for a dismissal will come first, then your general answers, then your other defenses, then your counterclaim.

You do not need to file a separate document for your MTD, your Answer and your Counterclaim. Read the Rules of Civil Procedure carefully. There are a handful of the affirmative defenses that need to be pled a certain way in order to be effective.

The clerk of my Circuit court told me that there was no cost to file an answer but there was a $50 charge to file a MTD. They said I could file as many MTD's as I wanted in one day, but if for example Iif file another MTD tomorrow it would be another $50. They also told me it was up to the judge if he/she wanted to call for a hearing. I read somewhere else that you have to request a hearing.

How could this be combined on the same form as an answer? Or do you mean that an answer with affirmative defenses will work like a MTD?

Here's the full rules http://tinyurl.com/b6sft3 I see nothing that clarifies the matter.

Here's what the Florida rules mention about MTDs. Below is all the mentions I can find.

(g) Time for Moving for Dismissal. A motion to

dismiss based on forum non conveniens shall be

served not later than 60 days after service of process

on the moving party.

1971 Amendment. The change requires a more complete

designation of the document that is filed so that it may be more

rapidly identified. It also specifies the applicability of the

subdivision to all of the various documents that can be filed. For

example, a motion to dismiss should now be entitled “defendant’s

motion to dismiss the complaint” rather than merely “motion” or

“motion to dismiss.”

Link to comment
Share on other sites

Guest Lecasbas

Bring up some of the facts of your case. Most of us don't keep track of what happened in other threads unless a particular thread deals with something we are researching. The thead which you posted in previously is too long and too complicated to ferret out your previously stated situation.

A MTD is filed usually when there are no genuine issues to debate and you want to sweep the case under the rug. This would be more appropriate of a claim which was filed against a consumer in a far-flung county of the state. It would be an undue burden for the consumer to travel 200 miles for court. The FDCPA and other laws require that the consumer be sued in its home county.

Quite commonly, the CA, and sometimes OC, violate certain statutes which allow you to collect some money. Here a MTD is useless. If you feel strongly about any violations by the CA, OC, and the debt being an uneforeceable security interest, you would submit an Answer with Affirmative Defenses and Counterclaims.

On any run of-the-mill case I would file an Answer, Affirmative Defense, and Counterclaim.

Link to comment
Share on other sites

Bring up some of the facts of your case. Most of us don't keep track of what happened in other threads unless a particular thread deals with something we are researching. The thead which you posted in previously is too long and too complicated to ferret out your previously stated situation.

A MTD is filed usually when there are no genuine issues to debate and you want to sweep the case under the rug. This would be more appropriate of a claim which was filed against a consumer in a far-flung county of the state. It would be an undue burden for the consumer to travel 200 miles for court. The FDCPA and other laws require that the consumer be sued in its home county.

Quite commonly, the CA, and sometimes OC, violate certain statutes which allow you to collect some money. Here a MTD is useless. If you feel strongly about any violations by the CA, OC, and the debt being an uneforeceable security interest, you would submit an Answer with Affirmative Defenses and Counterclaims.

On any run of-the-mill case I would file an Answer, Affirmative Defense, and Counterclaim.

My mother (75 years old) was paralized by a stroke due to malpractice. She's now indigent and on Medicaid. Citibank is suing via a local attorney for a 10k credit card debt which defaulted just over a year ago. The only solid info I have is what I see on her credit reports. Two list one 10k Citibank account only and one report says two accounts with different account numbers. Only one report says around 10k Citbank the other around 12k says Citi Card.

The summons looks standard. and seems to be for the 10k one. The only evidence submitted is a Proof of Claim Afadavit.

I guess the kicker is that due to my mom's state she wouldn't perform reliably. More importantly she's been diagnosed with depression but has been doing much better lately. I fear this will throw her back into depression and her health will suffer again. She is a widow. Her husband was murdered by her own father. She's been through a lot so I'm trying my best to protect her.

Being that more than one lawsuit may be coming down the pike, I wanted to nip this one in the bud.

Link to comment
Share on other sites

Guest Lecasbas
The only solid info I have is what I see on her credit reports. Two list one 10k Citibank account only and one report says two accounts with different account numbers. Only one report says around 10k Citbank the other around 12k says Citi Card.

Are these credit reports from the big 3, or 3 in 1 reports from a monthly service?

Do the two accounts with different account numbers also have different creditors? This may be interesting. If the names of the creditors are different as well then you have the OC reporting the account as its own while a CA (perhaps) is also reporting the account also as its own.

I've run into this before and I don't know quite what to make of it. I popped the question on the forum and the response was that it was okay as long as both were not trying to collect on the account. It didn't seem quite right to me at the time but I had other fish to fry and moved on.

Recently I've been reading about CA's posing as OC's for the purpose of evading assisgnment issues, the restrictions of the FDCPA, and other relevant statutes and laws.

In one case the consumer found the ruse and made inquiries. Somehow the CA sold the account back to the OC and dropped the issue. Apparently there was a buy back stipulation in the assignment or purchase agreement.

I think I would dispute the two accounts listed with the one CRA and ask who actually owns the account (which is listed as two).

I would also incorporate this into my Affirmative Defenses and Counterclaims. You could make the accusation now with the CR for a little supporting evidence which should allow you to do Discovery.

Link to comment
Share on other sites

Does she have any attachable assets? If not there is nothing they can do even if they win the suit. Did the Stroke affect her mental capacity in any way? If so she would likely be considered an Incompetent Person and the good news is you do not need a Power of Attorney under FRCP 1.210, however under the same rules an Incompetent Person that is not otherwise represented the court must appoint a Guardian Ad Litem.

A nice letter to the court requesting appintment of a Guardian Ad Litem, sending a copy to the Plaintiff along with a cover letter letting them know you are sending everything to every news outlet may get them to back down in a big hurry.

Link to comment
Share on other sites

Guest Lecasbas

Original post by: KentWA

A nice letter to the court requesting appintment of a Guardian Ad Litem, sending a copy to the Plaintiff along with a cover letter letting them know you are sending everything to every news outlet may get them to back down in a big hurry.

You could try this but I wouldn't actually follow through unless your mother is past the point of caring for herself.

The rule of thumb on these things is to ask yourself if your mother could survive without help. This does not mean that she puts on different colored socks. It means that she would starve because she either doesn't know how or cannot perform the physical movements to feed herself. Then, this is just the rule of thumb.

I think your personal power of attorney should suffice for what you want to do. Once you win a case and begin writing DV letters as soon as you get a dunning letter, the CA's will back off.

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.