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Need Help??? "How to file a motion"


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Hi Everyone,

On the actual hard copy of the Magistrate Review Order I was sent from the Magistrate... The last item on the list states:

Failure to provide the documents listed above within 60 days from the filing date (8/23) of this order MAY RESULT IN DISMISSAL OF THE COMPLAINT on the ground of failure to prosecute the action.

Now, today is 60 days from the file date & there has been no updates I have seen on the courts website...So it appears that Midland didn't/haven't supply the documents listed in the order..

How would I go about filing a motion to dismiss???

Also, on what grounds..? for lack of prosecution?, failure to comply with the magistrate's order? Both?

Thanks for any help!

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All depends on what the documents listed above were. As the norm with the law it really tells you nothing. It say MAY result not SHALL result in a dismissal.

To answer your questions I would think you would file a motion to dismiss based on a violation of rule XXXX and their failure to prosecute by violating rule XXXXX

Word it just like any motion. You state what is going on, what the court ordered, what they did or did not do, what law or rule that violates, finally the action you want the court to take based on their action or lack of action.

Also don't get too excited. It is pretty normal to wait until the very last minute to file or deliver whatever is needed. However, being Midland and you fought back, you have a pretty good shot at them moving to somebody that will just pay them and ask no questions, like hey do you really even own this debt? You know little minor questions that don't really matter. :lol:

Edited by Coltfan1972
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All depends on what the documents listed above were. As the norm with the law it really tells you nothing. It say MAY result not SHALL result in a dismissal.

To answer your questions I would think you would file a motion to dismiss based on a violation of rule XXXX and their failure to prosecute by violating rule XXXXX

Word it just like any motion. You state what is going on, what the court ordered, what they did or did not do, what law or rule that violates, finally the action you want the court to take based on their action or lack of action.

Thanks for the response...

But, I have no idea on how to put together a motion :confused:

Whats the format? Is there a template somewhere to follow?

Thanks

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A motion to dismiss is improper, that only means they filed in the wrong court or the court has no jurisdiction. What you want is a motion for summary judgment on the pleadings, Ohio civil rule 12. You may have to close the pleadings first. Thing is, you're jumping the gun. You have to go through the first procedure, which is to compel discovery. Look it up in the rules, it's there. File too early and you'll lose. In the event you get this far, here's a sample.

Defendant's Motion for Summary Judgment

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It means just what it says, they filed for summary judgement and attached an affidavit to support their motion and position.

It means they are trying to end the case without a trial. You don't necessarly have to prove or win your case at this stage. You must show the court there is an issue for trial.

They have an affidavit, you need your own affidavit. Dueling affidavits can be argued as needing to be settled with a trial. It all depends on the subject matter of the affidavit. You can't just say, I dispute in an affidavit and be done with it.

I would look at their motion and go line by line in your reply to their motion. I would dispute, then I would lay out the dispute, such as, what is missing in their arguments. Once again, you need only show the need for a trial that there are issues that are not so cut and dry a trial is needed.

There are elements they must prove to win there case. They have to meet all those to win. Attack each element. For example If I say you hurt me in a car wreck. I have to show you were driving the car that hit me, you did a certain action, that action was illegal, I was hurt by your action, your action was the proximate cause of my injury, I did not contribute to my own injury, and the amount of my injury you should pay.

If I don't prove you were at fault then everything does not matter. If I can't prove how much you owe then that is my problem. Same with there case. They need to prove a debt, a contract, a meeting of the minds, they own the debt, you defaulted, you were given notice, the alleged purchases were for certain household items, your liable to them, and what amount your liable to them for.

They build their case and you knock the legs out from under it piece by piece. Not a general I don't owe you statement. That is fine for the lawsuit answer, now you have to not necessairly prove you don't owe them, you have to show there is enough in dispute for there to be a trial.

You defeat their MSJ then you most likely are going to win at trial, because there will probably be no trial. Summary Judgement is where most creditors win their case.

Attack, attack, attack, every piece of info and submitted exhibit with the motion. Raise all types of issues for a trial. Don't admit to anything and leave everything disputed. In my opinion, your reply needs to be flooded with examples of what is in material dispute and needing a judge or jury to decide (trier of the facts is what you will call it).

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Coltfan is right about the need to show there is an issue that needs to be settled by trial, and that you must dispute the items in their motion line by line. The key phrase is "Summary judgment may only be granted when no triable issue exists as to any material fact."

You should be receiving a copy of their motion, or go to the courthouse to get a copy, to start examining.

What you want to file is "Opposition to Motion for Summary Judgment." Do a Google search for this phrase; I found one for California that would probably be helpful.

Good luck.

DH

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