Can you file a "General Denial" along with a Motion to Dismiss? (FL)

[Determined1]

Hi,

I'm concerned I may have screwed up a filing, and would really appreciate some input from the Florida contributors here.

I am a Defendant in a lawsuit for a loan. I first attempted to file a Motion for Extension of Time to research the complaint and possibly hire an attorney. Before I had a chance to set my request for an extension for hearing, the Plaintiff Motioned for Default. The Clerk would not enter the Default because my Motion was on record. I then filed a "General Denial" and in the same Motion, added a Motion to Dismiss for numerous errors in the complaint (the reasons I requested a dismissal all tie into the General Denial....) Now I'm concerned that it may been improper to file a "General Denial" along with a Motion to Dismiss in the same Motion. Was I allowed to combine the two? If not, can I remedy this by filing an Amended Motion? Thank you.

[nascar]

No, what you done is not improper. Your general denial should serve as your answer to the complaint and then the motion to dismiss is treated as a separate request.

Responsive pleadings of this nature are generally entitled ANSWER AND MOTION TO DISMISS.

[Determined1]

Thank you Nascar. My concern came in when I was told by a neighbor (and attorney) that I needed to just file the Motion to Dismiss first, and get that heard. My concern was, without any form of answer (even a general denial) I could lose to a Summary Judgement.

So I combined them, using the same title you just referenced "ANSWER AND MOTION TO DISMISS" and then my Motion to Dismiss basically dovetailed the reasons I could not give a more detailed answer other than a general denial - the complaint was defective on numerous grounds.

Anyway, my neighbor is an attorney for banks doing foreclosures, so I think when you do that kind of work, you can get jaded to one point of view, and any advice he gave I was suspect of.

Thanks again for the reply. Any additional feedback always welcome!

[BTO429]

I always file a motion to dismiss if the evidence they have is not proper or holds in bearing in the case, or is not enough to prove "as a preponderance of the evidence" that I am indebted to the person filing the complaint.

If you don't file a motion to dismiss, or for that fact a motion of any kind the court will not act. They only way you can get a court the act upon anything during a trail is to MOVE the court, you MOVE the court by filing motions.

[ADSOFT]

Good Luck,

I think you can combine motions in the same motion, you don't have to neccesarly wait.

btw, can you post your general denial?

[Determined1]

Good Luck,

I think you can combine motions in the same motion, you don't have to neccesarly wait.

btw, can you post your general denial?

Thanks for the feedback. My general denial says: "Plaintiff is full of crap."

Sorry, just kidding, it says: Defendant is at present without information or knowledge to form an opinion as to the truth or accuracy of the allegations contained in its complaint, and denies generally the complaint and allegations contained therein.

[nrgins]

I'm not sure where your neighbor friend is coming from, but you need to file a response. Usually you only have a few weeks to be able to do that, so it's good that you were able to do that.

[Determined1]

It wasnt just his comment that made me concerned...this created some confusion, too:

http://blogs.smartrules.com/2009/06/14/motion-to-dismiss-in-florida-circuit-court-%e2%80%93-at-a-glance/

However, the same rules say you need to "Answer" a complaint, or you're toast...

[nrgins]

Yeah, I don't know what that's talking about. All I know is that you need to file a response or else their requests for admission will be admitted

So it's good that the clerk wouldn't grant his request for a default judgment, since you had made an appearance with your request for an extension. However, I would still be concerned that your responses might not be accepted if they were submitted late. I would call the court clerk and find out about that.

Edited April 25, 2010 by nrgins

[ADSOFT]

Yeah, I don't know what that's talking about. All I know is that you need to file a response or else their requests for submission will be submitted.

So it's good that the clerk wouldn't grant his request for a default judgment, since you had made an appearance with your request for a disclosure. However, I would still be concerned that your responses might not be accepted if they were submitted late. I would call the court clerk and find out about that.

I'm not sure how it works in other states, but in california if you answer after the deadline but the plantiff doesn't submitt a Motion for default, the court will accept your answer and you won't get a default judgement.

I don't think they can get a judgement on you if you answer. At the very least you can deny the amounts, but then you would be agreeing that you owe the debt.

Most around here deny everything, then the plantiff is forced to prove everything and that will give you time to come up with a defense. Arbitration seems to be a good last/first resort.

Good luck

[nrgins]

Yes, the plaintiff's motion for default was denied because the defendant had made an appearance with his motion for an extension. However, simply because he didn't get a default judgment against him doesn't mean the responses will be accepted. That was my point. If his responses aren't accepted, then the plaintiff's requests for admission will be admitted, and it's game over. That would be my concern. Even without a default judgment, without his denials and affirmative defenses being admitted, it would be very hard to win.

I read on this board (or something on this board linked to an article or something) where a fellow was sued for a debt that was out of SOL. He filed his response on time, and, for each answer he simply wrote "statute of limitations has expired." Because that was seen as a non-response to most of the items the plaintiff was looking to admit, the plaintiff's admissions were accepted, and the guy lost -- even though the debt was out of SOL!

Edited April 25, 2010 by nrgins

[ADSOFT]

Yes, the plaintiff's motion for default was denied because the defendant had made an appearance with his motion for an extension. However, simply because he didn't get a default judgment against him doesn't mean the responses will be accepted. That was my point. If his responses aren't accepted, then the plaintiff's requests for admission will be admitted, and it's game over. That would be my concern. Even without a default judgment, without his denials and affirmative defenses being admitted, it would be very hard to win.

I read on this board (or something on this board linked to an article or something) where a fellow was sued for a debt that was out of SOL. He filed his response on time, and, for each answer he simply wrote "statute of limitations has expired." Because that was seen as a non-response to most of the items the plaintiff was looking to submit, the plaintiff's submissions were accepted, and the guy lost -- even though the debt was out of SOL!

Yep, you have to answer interrogatoriess, but sometimes you can even get those reversed, I have talked to some attorneys on that.

[nrgins]

No, I wasn't referring to requests for interrogatories. I meant the requests for admission that are included in the original motion. If you don't respond to those on time, then they are automatically admitted. (Maybe that's what you meant.)

So, yeah, nothing's set in stone. But my point was, I wonder if he should move now to explicitly request that his answers be accepted (or that the admissions be reversed) even though his response was late, rather than waiting until a trial or a motion for summary judgment? Seems it would be best to get a ruling now on whether or not his responses will be accepted, rather than waiting until there's a hearing.

But I don't know if that's possible. Just something I was wondering.

Edited April 25, 2010 by nrgins

[BTO429]

If you miss a dead line for admissions or interogs you can file a nunc pro tunc.

It means Now for then. In general, a court ruling "nunc pro tunc" applies retroactively to correct an earlier ruling.

Nunc pro tunc is a phrase which theoretically applies to acts that are allowed to be done after the time expires.

This refers to changing back to an earlier date of an order, judgment, or filing of a document. Such a retroactive re-dating requires a court order which can be obtained by a showing that the earlier date would have been legal, and there was error, accidental omission, or neglect which has caused a problem or inconvenience which can be cured. Often the judge will grant the nunc pro tunc order ex parte (with only the applicant appearing and without notice).

Make sure you explain to the court why you filed late or exactly what mistakes you made and that it needs to be corrected.

Edited April 25, 2010 by BTO429

[Determined1]

Thanks guys, this feedback is great. I think there are valid reasons that my Answer was a few days late, inclduing a clerk's error and some valid and provable personal reasons. Also, the Plaintiff failed to adhere to several time guidelines already, as well. My hope is the Judge will "square" this on both side and allow us our imperfections and a fair fight.

As long as I get to have that fight, I'm ready to roll. I have defenses that are totally logical, provable and legit...as long as I get my "day in court." BTO, should I file the

Nunc pro tunc and have it heard the same day my Answer & Motion to Dismiss is heard? Or write this Motion and present it that day in court? A big part of my issue with the Plaintiff is they never perfected service, but it was too late to quash when I already answered with a Motion for Extension of Time. However, they still did not adhrere to multiple issues regarding completing the service of process, including errantly identifying my company in Affadavits of Service, the complaint itself, etc etc. My arguement is, in part, I'm contesting their ever having gained proper jurisdiction of the court....

[nrgins]

Hi. I don't have any answers to your questions (except to say that I think you should file whatever you can right away to get the court to accept your late response). Maybe someone more knowledgeable can answer your questions more specifically.

What I did want to say, though, is that I found this thread in this forum: http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=300773 The author of that thread also filed a late response. I think you might want to read through the thread and see what was said.

[Determined1]

Thanks NRGINS. Please note, I have filed an Answer. My Answer was a General Denial, in large part because they did not properly obtain juridiction over the parties. My approach was, if and when they gain jurisdiction, then I can fully Answer the complaint. They still havent properly served my company to date.