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Motion to dismiss, then what?


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In a nutshell, a suit was filed in IL against wife by JDB. Read the rules and applicable laws and filed a nice MTD. Went to the motion hearing and the judge entered the motion, on the following basis: that the plaintiffs current complaint is stricken, they have 30 days to resubmit, and the trial date for next month stands. The 30 day period passed last week, and am considering a DWP motion, however, I am looking for the judge to just toss the case with prejudice. Any ideas on the best way to proceed? Thanks in advance.

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Not to sound too obvious, but a motion to dismiss and you argue the other side did not resubmit (amend) so the suit should now be dismissed and trial data cancelled.

However, I don't see you getting with prejudice. The other side was probably not compelled to resubmit, they were probably told to resubmit per some instruction from the court. Then if they did not it is in effect like they are throwing in the towel.

Go for it, but just don't think you'll get it.

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This may be a curable defect. They may allow the other side a certain amount of time to file an amended complaint to cure what sounds like a default for failure to plead. Here, they give you an opportunity to request this, usually within two weeks. See what your rules say. Should be under "time to plead" or something similar.

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Thanks everyone for the support! It is appreciated. Now I just need to deflate my ego!

LegalEagle,

The judge said he didn't think we had any recoverable costs off the top of his head, but here in IL there are a lot of statutes and case law as to what constitutes "costs," but he told me to file for them if I were so inclined. Regardless of the amount, I will file as long as I reasonably know I will get them.

As far as the sanctions, he told me to file a motion specifically citing the reasons and case law, but said that my request was for another day.

But perhaps the best part of today's proceeding is when the judge asked in astonishment "they want to dismiss the case against you, why are you objecting to that?" To which I calmly replied, "because I want the case dismissed on my terms, not theirs." He heard a few moments of arguments, then sided with me.

I only wish more people would stand up for their rights. Illinois is very friendly for debtors rights and it is frustrating to hear 100 cases called and no one stand up.

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But perhaps the best part of today's proceeding is when the judge asked in astonishment "they want to dismiss the case against you, why are you objecting to that?" To which I calmly replied, "because I want the case dismissed on my terms, not theirs."

YES !!!!!!!! I love it !!!! ::BigGun::

Let me translate, If I may. Your Honor, I called their bluff and now they want to fold their hand and take the chips they have already put in the pot out. Not going to happen, no safety net here.

You want to fight, let's get it on !!! xxHellxx

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  • 5 weeks later...

Now that is a FDCPA violation...If you have it tape recorded or if someone else heard the statement, then get a consumer lawyer to file that case...you will get $1,000 and the attorney will negotiate to have the debt eliminated..that way you never have to worry about it again..

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Cease and desist has to be in writing. A second JDB should have even less chance than the first. You know, at some point this has to stop. Theoretically, they can keep selling this debt and keep this guy in court for the rest of his life.

Question from a newbie!!!

If his case was dismissed WITH prejudice, then how can another JDB file it again???

Is it that just the JDB lost, not the claim that lost???

Thanks, just wanting to understand,

rt

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I checked ARC in my court system, and they have never filed suit against anyone. They called today, asked me if i was mr. (wifes maiden name). Im going to send out a c and d and will ask for dv for giggles. they are putting our account on hold, thank god because these vultures are ruthless.

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Cease and desist has to be in writing. A second JDB should have even less chance than the first. You know, at some point this has to stop. Theoretically, they can keep selling this debt and keep this guy in court for the rest of his life.

This is the very reason I have taken to the "Sue, then ask questions later" or respond to the dunning notice with Summons frame of mind.

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