Happybluesky Posted August 30, 2012 Report Share Posted August 30, 2012 Reasonable grounds for two motions:1. To strike.2. To dismiss.Obviously court rules vary, but unsure of whether (i) to somehow combine in one motion, (ii) hand in two separate motions at the same time, or (iii) go in sequence, motion to strike first, and if denied hopefully be able to immediately submit motion to dismiss. Avoiding answering compliant. Link to comment Share on other sites More sharing options...
Guest usctrojanalum Posted August 30, 2012 Report Share Posted August 30, 2012 it wouldn't make sense to do both. if you are moving to dismiss your motion to strike is moot. Link to comment Share on other sites More sharing options...
BrunoTheJDBkiller Posted August 30, 2012 Report Share Posted August 30, 2012 What are the "reasonable grounds" for each motion? MTDs are fairly narrow, they only cover certain aspects of the case. It's usually something procedural. Link to comment Share on other sites More sharing options...
Coltfan1972 Posted August 30, 2012 Report Share Posted August 30, 2012 Not enough info to answer for sure, but if your motion to strike is denied then can't see the more extreme motion to dismiss being granted. However, to answer your question, you can ask the court to do something you really want them to do, but then ask the court in the alternate do something if they don't do what you initially want them to do for you.It's like saying if you're not buying what I'm selling on one argument, then let's shift gears and see if you will buy this alternate argument. Doubt that is applicable here, but yes, you can argue different things in the same motion. A motion to compel arbitration is where I see it a lot. The party will ask the court to dismiss the case since they elect arbitration but in the alternate stay the case if you won't dismiss the case. Link to comment Share on other sites More sharing options...
BrunoTheJDBkiller Posted August 30, 2012 Report Share Posted August 30, 2012 Usually a motion to strike challenges either the legal sufficiency of the complaint itself or the legal sufficiency of a pleading. That means the person who filed either the complaint or the motion made a "fatally defective" error. For instance, you file a complaint and sue under a statute that has no private right of action. Or, in the alternative, you file a motion that asks the court to do something they have no authority to do, like give the Plaintiff the death penalty or send him to prison because you think he committed perjury.The motion to dismiss usually has a narrowly carved out area of law. It usually is related to things like improper venue, improper party, statute of limitations, failure to state a cause of action upon which relief can be granted, (suing under the wrong statute) or anything that essentially means that the case never should have been brought in the first place. You still need to tell us what you want to strike. I assume you want to dismiss the case, but this rarely happens if the motion is based upon argumentative grounds. Link to comment Share on other sites More sharing options...
Happybluesky Posted August 31, 2012 Author Report Share Posted August 31, 2012 (edited) Suppose the plaintiff alleged in complaint is not true plaintiff. I think that fact can be incorporated into a more extensive motion to dismiss for failure to state a cause of action, but wouldn't it be more efficient to move the court to strike the complaint?Motion to dismiss: Complaint fails to allege ultimate facts to establish the true party of interest.Motion to strike: Plaintiff alleged in complaint is not the true party of interest. Edited August 31, 2012 by Happybluesky Link to comment Share on other sites More sharing options...
usagi555 Posted August 31, 2012 Report Share Posted August 31, 2012 Suppose the plaintiff alleged in complaint is not true plaintiff. I think that fact can be incorporated into a more extensive motion to dismiss for failure to state a cause of action, but wouldn't it be more efficient to move the court to strike the complaint?Motion to dismiss: Complaint fails to allege ultimate facts to establish the true party of interest.Motion to strike: Plaintiff alleged in complaint is not the true party of interest.Suppose you prove this. You need hard evidence, because the court will simply assume that the Plaintiff is who it says it is. "Something doesn't seem right" is not nearly good enough to get such a motion granted, but it is more than good enough to make a judge's eyes roll all the way to the back of his head. Any attorney who knowingly does this even once is risking his license to practice law, which is what puts bread on the table. I'm not trying to be a dick, but most of the time when people come onto this board and think they've found something along these lines, what they've really found is a sloppy and systematic procedurally driven factory approach to litigation. The affidavits suck, the evidence sucks, etc... because somebody is trying to ram this stuff through the court system as fast as possible, rather than paying attention to the evidence. It looks bad because it is bad, but it is normally something other than a JDB claiming to be the OC. That's not to say that such things haven't happened, but even the most dogbrained collection attorneys are not going to want to risk their licenses to practice law to make their case look stronger when a majority of their wins are from default judgments anyway. Link to comment Share on other sites More sharing options...
KentWA Posted August 31, 2012 Report Share Posted August 31, 2012 I have to agree with usagi555. However for the moment lets assume this is true and you have admissible evidence to prove it. Then the proper path is a motion to dismiss, not a motion to strike. That gets it off the docket completely and kills the case totally. Do not ***** foot around on anything with these types, go for the throat or go home. Link to comment Share on other sites More sharing options...
BrunoTheJDBkiller Posted August 31, 2012 Report Share Posted August 31, 2012 Plaintiff alleged in complaint is not the true party of interest. If you haven't conducted any discovery, this is premature. How do you know they are not the party in interest? If this is referring to ownership of the account, you have to request documents. For all you know, they could have a bill of sale and a Schedule A with all your information on it. It's rare, but it happens. Also, see this:TIME FOR FILING PLEADINGS OR MOTIONSRULE 15A Time for filing motions and pleadings. A motion or answer to the complaint or third party complaint and the reply to a counterclaim or answer to a cross-claim shall be filed with the clerk by the time required by Rule 7 C(2) to appear and defend. Any other motion or responsive pleading shall be filed not later than 10 days after service of the pleading moved against or to which the responsive pleading is directed.A How presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a complaint, counterclaim, cross-claim or third party claim, shall be asserted in the responsive pleading thereto, except that the following defenses may at the option of the pleader be made by motion to dismiss: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) that there is another action pending between the same parties for the same cause, (4) that plaintiff has not the legal capacity to sue, (5) insufficiency of summons or process or insufficiency of service of summons or process, (6) that the party asserting the claim is not the real party in interest, (7) failure to join a party under Rule 29, (8) failure to state ultimate facts sufficient to constitute a claim, and (9) that the pleading shows that the action has not been commenced within the time limited by statute. A motion to dismiss making any of these defenses shall be made before pleading if a further pleading is permitted. The grounds upon which any of the enumerated defenses are based shall be stated specifically and with particularity in the responsive pleading or motion. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If, on a motion to dismiss asserting defenses (1) through (7), the facts constituting such defenses do not appear on the face of the pleading and matters outside the pleading, including affidavits, declarations and other evidence, are presented to the court, all parties shall be given a reasonable opportunity to present affidavits, declarations and other evidence, and the court may determine the existence or nonexistence of the facts supporting such defense or may defer such determination until further discovery or until trial on the merits. If the court grants a motion to dismiss, the court may enter judgment in favor of the moving party or grant leave to file an amended complaint. If the court grants the motion to dismiss on the basis of defense (3), the court may enter judgment in favor of the moving party, stay the proceeding, or defer entry of judgment.Looks like 6 is the one if you have the evidence to back up the claim. Link to comment Share on other sites More sharing options...
Happybluesky Posted August 31, 2012 Author Report Share Posted August 31, 2012 If OC assigns debt to collection agency, and in turn collection agency hires a law firm, then of these three parties, which one is properly the plaintiff?Similar question, except in case where OC sells debt to JDB? Link to comment Share on other sites More sharing options...
usagi555 Posted August 31, 2012 Report Share Posted August 31, 2012 If OC assigns debt to collection agency, and in turn collection agency hires a law firm, then of these three parties, which one is properly the plaintiff?Similar question, except in case where OC sells debt to JDB?The proper plaintiff is the owner of the alleged debt. Unless the OC actually sold it to the CA, the CA is simply acting as an agent of the OC when it hires the law firm, and the relationship between the law firm and the OC, at least once the lawsuit is filed, is much like an attorney-client relationship. The kicker in what you described was who, specifically, made the decision to sue. Did the OC send the debt to the CA with the instructions to send it to the law firm if payment was not received within 90 days? If so, it could very well be kosher. Did the OC send it and say "do what you need to do," which prompted the CA itself to make the decision to send it to the attorneys? If so, the CA may very well have engaged in the unauthorized practice of law. Link to comment Share on other sites More sharing options...
Happybluesky Posted August 31, 2012 Author Report Share Posted August 31, 2012 Case at hand has both previous correspondences and complaint with boilerplate 'This is a communication from debt collector.' Debt Collectors Suing Consumers Naming Capital One As Plaintiff Link to comment Share on other sites More sharing options...
KentWA Posted August 31, 2012 Report Share Posted August 31, 2012 Some states including my own will allow assignment to a CA the right to sue for the debt in the CAs name. Without discover it is sounding like you are way to far ahead of yourself on this track.The required language you cite in no way indicates ownership, standing or status of the debt. It is required of CAs, JDBs and Debt Collection Attorneys. Many companies put it on there just to be safe. Link to comment Share on other sites More sharing options...
BrunoTheJDBkiller Posted August 31, 2012 Report Share Posted August 31, 2012 Who is the plaintiff on the complaint? OCs do not "assign" debts to collection agencies, they hire them to collect. Assignment ususally means the debt was sold, in legal jargon, it's in the cardholder agreement. We need to know who sued you. Link to comment Share on other sites More sharing options...
BrunoTheJDBkiller Posted August 31, 2012 Report Share Posted August 31, 2012 Who is the plaintiff on the complaint? OCs do not "assign" debts to collection agencies, they hire them to collect. Assignment usually means the debt was sold; in legal jargon, it's in the cardholder agreement. We need to know who sued you. We could also use more info, fill out the 20 questions. Link to comment Share on other sites More sharing options...
usagi555 Posted August 31, 2012 Report Share Posted August 31, 2012 (edited) Case at hand has both previous correspondences and complaint with boilerplate 'This is a communication from debt collector.' Debt Collectors Suing Consumers Naming Capital One As Plaintiff1) That's hearsay, and you have no proof that it happened in your case.2) A lot of people have said that they thought Crap1 was not the plaintiff for various reasons when it really was Crap1.3) Some states require "This communication is from a debt collector" to be on letters even from OCs. Just because it's an OC, that doesn't mean that they're not also collecting a debt...You need to quit worrying about this and start worrying about discovery. You need to be aggressive in discovery and hit on the points that would require an OC to win. Why? Because odds are, you are dealing with an OC, whether you like it or not. Suppose I'm wrong though. They'll either back themselves into such a corner that they cannot win with idiotic answers and objections that they would give, they would fold and run outta there at light speed, or it would come out that you aren't dealing with an OC and you could nail them to the wall.And that's assuming that you've been served and have filed an answer. If you haven't, well, you need to start learning now how to get that stuff ready. Edited August 31, 2012 by usagi555 Link to comment Share on other sites More sharing options...
Guest usctrojanalum Posted September 5, 2012 Report Share Posted September 5, 2012 The attorney is required by Federal Law to state that they are debt collectors. It is not required that they do so on lawsuits, but attorneys sometimes put the disclaimer on lawsuits anyway. Link to comment Share on other sites More sharing options...
Recommended Posts