Any suggestions on an Order to dismiss

[cinesational]

I have to file an answer by Monday the 3rd of May, and I want to know if I can file a motion to dismiss in regards to this Oregon Trial Rule 17.C(4)

C(4) A party or attorney certifies that the allegations and other factual assertions in the pleading, motion or other document are supported by evidence. Any allegation or other factual assertion that the party or attorney does not wish to certify to be supported by evidence must be specifically identified. The attorney or party certifies that the attorney or party reasonably believes that an allegation or other factual assertion so identified will be supported by evidence after further investigation and discovery.

This is how I was going to word my motion...any legs?

To Dismiss this Case because Plaintiff failed to comply with Trial Rule 17.C(4) Plantiff failed to provide the Defendant, evidence of the actual contract and assignment showing the Plaintiff is the Real Party in Interest.

Defendant twice requested Plaintiff provide the actual contract and or copies of the original contract or any papers that showed that the Defendant agreed to pay what Plaintiff alleges. Plaintiff did not provide Defendant with such evidence

Thanks for any help

Edited May 1, 2010 by cinesational

[ADSOFT]

This is just brainstorming but I think you can somehow get this case dismissed, here it goes.

I would look into a demurmer maybe General Denial, possibly Motion for Summary Judgment, but I'm not sure if you can ask for one as a response.

The clause you quoted might just have the lawyer state that they claim to provide contracts and proof in trial. It pretty much says that anyone can come up with a bunch of allegations and force you to defend yourself. Unfortionate but true.

Here are some ideas:

1) If your requests are within the 30 day period of first contact, then they have to stop collecting, hence lawsiuit should be dismissed. See FDCPA validation of debt.

2) If not you MIGHT have to look for procedure that states if defendent asked for contractual obligation, plantiff can't bring suit.

3) Maybe you can agrue harrasment, since you stated you wanted debt validation and contractual obligation.

You have something, but unfortionatly, cour allows for allegations to start a lawsuit, I think you are being harrassed but I don't know enough about Civil Procudure (court rules) to back it up.

I would research DEMURMURS(sp) for Breach of Contract Cases.

I do think you have something tho.

ps, I will keeping a close eye on this thread, interesting facts.

[cinesational]

Thanks ADSOFT, In Oregon DEMURMURS have been abolished...I don't think I really have a chance with this motion at this time...But I thought since I have no idea what I am doing that someone might have ideas..I filed my answer on Friday the 30th of April, I am now going to to prepare and send out my paperwork for discovery..I was encouraged to sent it before they do...so as to let them know I am here for the fight..Thanks for your response, any thoughts are helpful ones

[ADSOFT]

Thanks ADSOFT, In Oregon DEMURMURS have been abolished...I don't think I really have a chance with this motion at this time...But I thought since I have no idea what I am doing that someone might have ideas..I filed my answer on Friday the 30th of April, I am now going to to prepare and send out my paperwork for discovery..I was encouraged to sent it before they do...so as to let them know I am here for the fight..Thanks for your response, any thoughts are helpful ones

I would look at a motion for summary judgement. State that Plantiff has been asked for proof of contractual obligation. Look at it as a Demurrmer after Answering.

btw, I would deny everything, and becarefull not to validate the debt. You might want to post their interrogatories.

If it were me, I would make it look like they have no agreement and their lawsuit doesn't have enough substance to be heard and or any agreement, possible harrasment.

Btw, did you ask for your agreement during the first 30 days of contact?

[cinesational]

Thanks ADSOFT,

It was during the first 30 days of the the contact with the Lawyer, each time I asked for :

What the money you say I owe is for;

Explain and show me how you calculated what you say I owe;

Provide me with copies of any papers that show I agreed to pay what you say I owe;

Identify the original Amount, and Address of the original creditor

Prove the Statute of Limitations has not expired on this account

Show me that you are licensed to collect in my state

Provide me with your license numbers and Registered Agent

They sent a simple office print out of my name, address which was wrong, my phone number which was wrong, the original creditor and the amount..

I filed my answer denying everything but the county in which I live..

[ADSOFT]

A print out is not enough, the must have intimate knowledge. Look into Custodian of Records.

I still don't have enough experience with CP, but it based on contract law they got a long way to go.

I would be tempted to state that you requested validation of the debt and they did not show intimate knowledge from the custodian of records, or that their validation is hearsay and there is now way they can get a judgement, defendent doesn't want to waste the courts time.

That might work. ... all the court can say is NO.

Look into proper witness.

It sounds to me like you could counter suit on violation of FDCPA, misreprentation of a debt. You have a good case becareful how you answer interogatories, you don't want to validate the debt.

Maybe someone else can help you with an MSJ, you would have to prove that plantiff "LACKS THE PROPER ELEMENTS FOR A CONTRACTUAL OBLIGATION".

[cinesational]

I will do that ADSOFT, thank you...

Here is a new wrinkle I just realized.

The "Validation" letter the CA has sent me, has an amount on it greater than the actual complaint..

I don't know how than can help..but if they don't even know how much I owe..that must be worth something?

[ADSOFT]

I will do that ADSOFT, thank you...

Here is a new wrinkle I just realized.

The "Validation" letter the CA has sent me, has an amount on it greater than the actual complaint..

I don't know how than can help..but if they don't even know how much I owe..that must be worth something?

By you saying the amount is greater you are admitting that you had the debt, too risky, they have to produce all the statements.

The elements to form a contractual obligation are something along the linse fo

1) An Agreement

2) Itemized bill genterated by the "custodian of records" close to the time of default

3) Proof that they own and bought the debt.

4) And you might be able add FDCPA violatons to that.

PM me and ask me to send you the list. At this point I'm doing alot of brainstorming on my case. I have to organize my thoughts and writing down the elments of a contract case is on my list. I will be happy to send them to you. It will get you focused.

You have a good case, be careful with interogatries,

[cinesational]

Thanks ADSOFT,

I guess I have to have 15 posts before I can PM certain people..I only have 4 so far

[cinesational]

I have been helped so much by this forum, thank you

[cinesational]

Good luck with your case

I have to organize my thoughts and writing down the elments of a contract case is on my list. I will be happy to send them to you.

[ADSOFT]

Read this and become familar with the cases mentioned, I'm working on rewriting this into a MSJ:

Btw, you mentioned that you asked for validation, what they provided was nowhere close to validation, they have to stop collecting till then, a lawsuit is collecting. You might have them on just that.

This was intened to dismiss a MSJ by the plantiff but, most of the arguements could be used by the defendent to prove there is no contractual obligation.

Motion to Dismiss Summary Judgment

=============

IN THE SUPERIOR COURT OF THE STATE OF <YOUR STATE>

IN AND FOR THE COUNTY OF <YOUR COUNTY>

Case No._____________________

<Collection Agency>

Plaintiff

Vs.

Joseph Consumer

Defendant(s)

MOTION FOR DISMISSAL OF SUMMARY JUDGMENT

Comes now the Defendant, XXXXXXX, and files this REPLY AND OPPOSITION TO PLANTIFF’S MOTION FOR SUMMARY JUDGEMENT in response to Motion For Summary Judgment And Supplement filed herein by Plaintiff, <Your Plantiff>, Inc., as follows:

1. The Motion For Summary Judgment filed by the Plaintiff is insufficient as a matter of law.

A party moving for summary judgment has the responsibility of informing the court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file with the affidavits, if any, which it believes demonstrates the absence of a genuine issue of material fact.

Plaintiff has failed to discharge this responsibility in the Motion for Summary Judgment and Supplemental Motion filed with the Court. The Motion does not set forth the True facts upon which Plaintiff seeks a summary judgment. Rather the Motion states only “That there is no genuine issue as to any material fact and that Plaintiff is entitled to a judgment as a matter of law with regard to all Counts.” Motion for Summary Judgment should be denied.

2. Defendant received the Plaintiff's Summons on <Date upon which You received Summons>. Defendant answered the request on <Date which you answered Summons>.

3. Trial was set for <Date on which trail was set for>.

4. Motion for discovery was filed on <date the motion was filed>. Documents requested from plaintiff included any documentation of relationship between plaintiff and RSC, the alleged original plaintiff, any payment history, and any breakdown of the sum requested by plaintiff. Defendant cannot make a legitimate defense on claims by the Plaintiff that are incorrect, untrue, and undocumented.

[The appeals court overturned the default summary in Spears vs. Brennan

Court of Appeals, 745 N.E.2d 862; 2001 Ind. App. LEXIS 509; because the collection agency lawyer did not meet the rules of the FDCPA 15 U.S.C. § 1692g

( Validation of Debts.]

5. The Plaintiff has failed to provide any contract, an agreement bearing the signature of the Defendant or any itemized statements or billing of said debts which would constitute intimate knowledge of the creation of the debt. Even if such documents were available, a purchasing/assignee’s plaintiff would be unable to swear to the authenticity of the originating or source documents of a credit transaction because they do not have personal knowledge of the events which transpired at that period of time in the life of the credit agreement. The original cardholder agreement, any correspondence, and monthly statements issued by the original credit grantor are not admissible as the purchasing plaintiff's business records, as the purchasing plaintiff has no personal knowledge of how those records were created or maintained.

6. Defendant alleges that this action is time-barred under § 735 ILCS 5/13-204- 735 ILCS 5/13-206 under Illinois’s civil code (statute of limitations for open accounts is 5 years). Per the Plaintiff’s own summons, date of last payment was 10/07/2000. Date of summons was 10/31/2005.

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

8. Plaintiff has failed to provide a detailed list of the debts to the Defendant in the initial debt collection notice as require by the FDCPA and as evidence by case law. Coppola v. Arrow Financial Services, 302CV577, 2002 WL 32173704(D.Conn., Oct. 29, 2002) – Information relating to the purchase of a bad debt is not proprietary or burdensome. Debtor must phrase their request clearly to obtain: The source of a debt and the amount a bad debt buyer paid for plaintiff’s debt, how amount sought was calculated, where in issue a list of reports to credit bureaus, and documents conferring authority on defendant to collect debt.

WHEREFORE, Defendant, XXXXXXXXXX, respectfully submits that the Court should deny the Plaintiff's Motion and Supplemental Motion for Summary Judgment, filed herein by National Check Bureau and prays for Dismissal of the complaint by the Plaintiff for damages of $983.73 and any further relief this court deems just and proper.

Defendant's motion for dismissal of summary judgment submitted this ___________ day of Dec 9, 2005.

[cinesational]

thank you ADSOFT, all this info is so helpful

[cinesational]

These were my Affirmative Defenses

1.Defendant was not notified of any assignment of the debt that is the subject of the Complaint.

2.Defendant does not consent to or ratify any assignment of the debt that is the subject of the Complaint, or any portion of it.

3.Defendant invokes the Doctrine of Laches as the Plaintiff or the person or entity that assigned the claim to the Plaintiff waited too long to file this lawsuit, making if difficult or impossible for the Defendant to find witnesses or evidence, or that evidence necessary to provide for Defendant's defense has been lost or destroyed.

4.Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with Plaintiff.

5.Plaintiff has failed to name the Real Party in Interest.

6.Plaintiff has failed to state a valid claim for attorney fees, and is barred from collecting Attorney fees under the Fair Debt Collection Practices Act.

7.Attorney Fees Not Recoverable

8.Plaintiff is barred under the Fair Debt Collection Practices Act, hereinafter called FDCPA, Section 807(2), 15 U.S.C. * 1692e(2)from collecting interest and any amount unless it is expressly authorized by the agreement creating the alleged debt or permitted by law. Plaintiff has failed to attach proper documentation to verify if such interest is allowed.

9.Defendant claims Accord and Satisfaction as Defendant alleges that the "Original Creditor" accepted payment from a third party for the purported debt, or a portion of the purported debt, or that the "Original Creditor" received other compensation in the form of monies or credits from the Plaintiff.

10.Plaintiff's damages are limited to real or actual damages of actual cost paid or exchanged to alleged "Original Creditor" for the purported debt, for which Plaintiff failed to reference an account number in their Complaint.

11.Plaintiff's Complaint fails to allege a valid assignment of debt and there are no averments as to the nature of the purported assignment or evidence of valuable consideration.

12.Plaintiff's Complaint fails to allege that the "Original Creditor" even has knowledge of this action or that the Assignor conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant.

13.Plaintiff admits to purchasing the defaulted debt allegedly owed by the Defendant, causing Plaintiff's injury to its own self, therefore Plaintiff is barred from seeking relief for damages.

14.Defendant claims a Failure of Consideration as there has never been any exchange of any money or item of value between the plaintiff and the Defendant.

15.Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time.

WHEREFORE, the Defendant prays that this court take nothing of the Plaintiff's Complaint and dismisses this complaint without prejudice.

Respectfully Submitted,

April 30, 2010

I am hopeful these are ok

[ADSOFT]

Most of the stuff you are saying backs up that they never proved a valid contractual obligation between you and the plantiff. You might want to group that under one pargraph, i.e:

Plantiff has not demonstrated a contractual obligation with the defedent:

1) Plantiff never produced a contract

2) Plantiff has never produced proof of assignment.

3) Plantiff has not only misrepresented debt, which is a violaton of FDCPA ...., but has submitted contadictory monetary amounts which defendent is liable for: Exibit A and B. Hence more proof that plantiff lacks valid documention to prove an obligation between plantiff and defendent.

and you can throw in:

4. Motion for discovery was filed on <date the motion was filed>. Documents requested from plaintiff included any documentation of relationship between plaintiff and RSC, the alleged original plaintiff, any payment history, and any breakdown of the sum requested by plaintiff. Defendant cannot make a legitimate defense on claims by the Plaintiff that are incorrect, untrue, and undocumented.

[The appeals court overturned the default summary in Spears vs. Brennan

Court of Appeals, 745 N.E.2d 862; 2001 Ind. App. LEXIS 509; because the collection agency lawyer did not meet the rules of the FDCPA 15 U.S.C. § 1692g

( Validation of Debts.]

5. The Plaintiff has failed to provide any contract, an agreement bearing the signature of the Defendant or any itemized statements or billing of said debts which would constitute intimate knowledge of the creation of the debt. Even if such documents were available, a purchasing/assignee’s plaintiff would be unable to swear to the authenticity of the originating or source documents of a credit transaction because they do not have personal knowledge of the events which transpired at that period of time in the life of the credit agreement. The original cardholder agreement, any correspondence, and monthly statements issued by the original credit grantor are not admissible as the purchasing plaintiff's business records, as the purchasing plaintiff has no personal knowledge of how those records were created or maintained.

8. Plaintiff has failed to provide a detailed list of the debts to the Defendant in the initial debt collection notice as require by the FDCPA and as evidence by case law. Coppola v. Arrow Financial Services, 302CV577, 2002 WL 32173704(D.Conn., Oct. 29, 2002) – Information relating to the purchase of a bad debt is not proprietary or burdensome. Debtor must phrase their request clearly to obtain: The source of a debt and the amount a bad debt buyer paid for plaintiff’s debt, how amount sought was calculated, where in issue a list of reports to credit bureaus, and documents conferring authority on defendant to collect debt.

The above might have to be tuned in.

1) I would try to group the lack of evidence for a contract that was provided by DV.

2) The violation of FDCPA by misreprenting the debt and improper validation, filed suit without providing valid documentation, hence continued collection activities.

3) Lack of intimate knowledge of the the debt.

And somehow sum it up that it's obvious that plantiff lacks the proper elements to persue a breach of contractual obligation.

Of course we still have to tune it in, but if we can prove there is no way they can provide proper documentation you might get it dismissed.

You MIGHT also threaten to sue them and notify the Trade Commision for misrepresenting the debt, which is obvious because the sent two different amounts.

You can also do some research on the collection agency to see if they have been sued for violations in the past and had cases dismissed for improper documentation.

[cinesational]

Yes, I am going to work on my discovery questions and send them off next week...I don't have any idea of procedure, and I have to pay everytime for motions and such.. so I think what I need to do next is to send out the Discovery questions?

[cinesational]

Thank you Oregonactor, I can't reply yet to your PM, I need 15 posts. I think this is 10 or so, thank you for your support, it is such an awesome thing when people help each other, I hope one day I will be able to do the same..

[ADSOFT]

Yes, I am going to work on my discovery questions and send them off next week...I don't have any idea of procedure, and I have to pay everytime for motions and such.. so I think what I need to do next is to send out the Discovery questions?

Might be too premature for that, IMHO. You might end up ed;ucating them.

IMHO, a motion for summary judgement is a good Preemtive strike. It's pretty obvious they don't know what they are doing or lack proper documention. Judge might feel the same way, especially if you give the impression that you are going to make them prove every point and eventually they won't have the proper documentation.

You can file multiple MSJs from what I have learned.

... of course it's up to you.

[cinesational]

I am not sure about the motion for summary judgement...I don't know anything about that...I have so much to learn about all this...I thought Discovery was next...

[cinesational]

I am thankful for everone who is giving me sound advise...Thank you

[ADSOFT]

I am not sure about the motion for summary judgement...I don't know anything about that...I have so much to learn about all this...I thought Discovery was next...

It usualy is. You can do that to but, IMHO you are doing their work for them, you already DVed them. They obviosly either think they have enough info, or know they don't have enough and are trying to either get a default judgement or slip and validate the date, which would be more work for them.

You can google MSJ and see what you get.

[cinesational]

Thanks for the info ADSOFT, I guess my thougths are two fold...If I get their discovery first, I will know what I am up against, and second..I will let them know I am in this fight and coming out swinging...I think being pro active is the best way to keep them on their toes and to let them know I am not going to lie down...What do you think?

[ADSOFT]

Well keep in mind that others here know more than I do so don't just go by my opininion. Definatly your approach is conventional, but you are basically letting the opposition fish for info. Yet, remember the judge has ultimate power and dismiss the case. Also, put yourself in the Plantiffs shoes, if you had to get a judgement on them don't you think they will say something along the lines that, "it may be true that plantiff bought the debt, but it takes more than purchasing a debt to form a contractual obligation. Plantiff would need 1) Contract and First hand knowlege( a witness).

By filing an MSJ you are going for the heart of the case, the plantiff is forced to get everything right up front, which in most cases they can't. You might have the case dismissed.

If you go the oher route you might inadertantly validate the debt. Also keep in mind if they do come up with an agreement you can usually go to arbitration worst case, which will tie up the case for a long time. Go find your agreement but don't mention it in your case, they have to produce it.

You could also start a thread and get opions from others, see what they think: Is it better to just go with the flow and file for discovery, you just come right out with an MSJ and state the Plantiff has not produced all the elements of contractal obligation (which at this point, in your case, the plantiff doesn't have).

It's up to you, you can play it safe but you might slip, or you can go for a knock out punch right off the bat because you know that the your opponent can't come up with a counter knock out punch. Worst case your opponent will still be standing, but you will have drawn first blood, however you might call his bluff and he will not know how to block your punch.

... that's how I look at it. But I encourage you get others opinions.

[cinesational]

Ok ADSOFT, I will take your advise and post another...Let's see what happens, thank you for all your thoughts on my issue

[ADSOFT]

Ok ADSOFT, I will take your advise and post another...Let's see what happens, thank you for all your thoughts on my issue

No prob, best of luck.