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Motion for judgment on the pleadings vs. summary judgment AGAINST ASSET


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In OHiO. Originail complaint had nothing attached. Not even a C.C. statement. I did not answer complaint. went to court. Magistrate gave  me 14 days. I file a motion for more definate statement. judge ordered a response. Asset denied my motioin. and still attached nothing. not sure how to prodeed. Please help. I believe the judge is "leaning" my way, i have made many mistakes, and have been helped a lot by the court. since they most likely have nothing (asset)....not even a credit card statement...and this cc. was opened in 06. called original creditor and asked when the last payment was made and they couldnt' tell me...thanks in advance...

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One of the things that you might do at this time is to file a motion to dismiss in lieu of answer. 

 

If the Plaintiff doesn't have any evidence then the lawsuit is frivolous and the Court may not allow it to move forward. The Ohio Statute of Limitations on Debt is 6 years. Has this tolled.  You can obtain the last payment date from a credit report and use that in your defense. 

 

I've attached a Template for a MTD with a Memorandum of Points and Authorities. You will probably need a cover letter and I would have your memorandum notorized. You will also need to provide a certificate of service proving you mailed the Plaintiff a copy.

 

Best,

 

HP

 

Motion to Dismiss in Lieu of Answer with sanctions MTD - CIC Forum Use.doc

Memorandum of Points and Authorties for Motion to Dismiss - CIC FORUM USAGE.doc

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One of the things that you might do at this time is to file a motion to dismiss in lieu of answer. 

 

If the Plaintiff doesn't have any evidence then the lawsuit is frivolous and the Court may not allow it to move forward. The Ohio Statute of Limitations on Debt is 6 years. Has this tolled.  You can obtain the last payment date from a credit report and use that in your defense. 

 

I've attached a Template for a MTD with a Memorandum of Points and Authorities. You will probably need a cover letter and I would have your memorandum notorized. You will also need to provide a certificate of service proving you mailed the Plaintiff a copy.

 the account was opened in 06 i called the original creditor and they can not tell me when the last payment was made. Asset has changed all the dates on my credit report to current dates. i know i have not used a c.c. since 06 but i don't know when the last payment was made. my ex-husband maxed out my cc and like a fool i took all debt in the divorce. just to get it over with. Jokes on me!! thanks for your help. I think i'm going to go for it. Judge seems to be in my favor...I have made a lot of mistakes he has let slip. And the lawyer approached me in court saying " so i assume this is a credit card case?" assuming i wouln't even show. the magistrate said he wouldn't judge on the motion anyway because there is not proof, not even a cc. statement. i was prepared and the judge told the lawyer there must be a provable sum. so i'm probably just over thinking it!! thnx again!

Best,

 

HP

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am i not supposed to have more than one thread with same topic?

You are allowed to do what ever you want, but if you want help it is best to try and keep everything

in one thread pertaining to one account.

 

We, who read and want to share opinions do not like to have to jump between posts.

 

If it is all contained in one, it is much easier to reference back as forth as needed.

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KiKi can you post the particulars, there is a thread at the top that asks questions.  Then if you post all your questions just in this thread pertaining to this suit, you will have all your help in one place. :)  If it goes to trial, the judge will expect you to know the law  as it pertains to your case, and we would love to help.

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KiKi can you post the particulars, there is a thread at the top that asks questions.  Then if you post all your questions just in this thread pertaining to this suit, you will have all your help in one place. :-)  If it goes to trial, the judge will expect you to know the law  as it pertains to your case, and we would love to help.

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oops! yes here is the answer from the JDB....

Now comes Plaintiff, xxxx and hereby responds to defendants motion for MDS and asks the is Court to deny Defendant's motion for reasons set forth below.

I. Facts

Complaint is this matter was filed to recover a balance which arose from Defendant's alleged use of a xxxxxx credit card account. Service was perfected and defendant has filed a Motion for MDS pusuant to OHio Civil Rule 12(E)

II. Defendants motion for MDS is imporpper.

Civil rule 12 (E) states:

If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, he may move for a DS before interposing a responsive pleading.

defendant has posed such a motion to the court. However, there is nothing in Plaintiff's Complaint that is so vague as to prevent XXXX from answering. To the contrary, it is clear from reading the complaint that plaintiff alleges defendent applied for a xxxx c.c. and xxxx failed to pay the balance due, that the debt was asssigned to Plaintiff for collections and that therefore defendant owes a sum of money to plaintiff. none of the foregoing allegations are so unclear that defendant could not possilby respond. Therefore xxx Motion for MDS is denied.

III.

Defendant argues Plaintiff's complaint must inclued a comp of the contract and a running balance of his account.( I'm a her and they us "her and him" interchangably throughout) The Complaint included Defendant's name (true) and account number. (14 digits) attached to the complaint is and affidavid of the account and copies of statements in the Defendant's name. (not true)

In the case of blah blah blah the 11th district court of appeals found that the document attached to the pleading was adequate to put defendant on notice and to allow defendant to file a proper responsive pleading. The court focuses on the fact that the plaintiff established a "provable sum" Similarly, the 4th appellate district has stated that a pleading stae in an acion on an account, the beginning balance must be a provable sum, not a proven sum.

Defendant has notice of the claim herein and anple opportunity to form an answer. For the forgoing reasons. Plaintiff respectfully request that this honorable court deny defendants motion for DS.

Respectuflly submitted,

blah blah blah

attorney's for plaintiff

(NOTHING WAS ATTACHED. I CAN SHOW POST A COPY OF MY MOTION FOR MORE DEF. STATEMENT IF NEED BE, BUT IT WAS WELL RECEIVED BY THE JUDGE. I BELIEVE THAT THEY HAVE NOT A DARN THING. AND THE MAGISTRATE AND THE JUDGE HAVE BEEN LEINIENT WITH ME IT SEEMS. THANK YOU FOR YOUR HELP!! I HAVE MADE A FEW POSTS ONLY BECAUSE I WASNT SURE HOW TO WORD MY QUESTION, SORRY IF I CONFUSED ANYONE. IN SHORT. I DID NOT FILE AN ANSWER. I WENT TO COURT. MAGISTRATE TOLD THE JDB'S LAWYER THAT HE WOULD HAVE TO PROVIDE SOMETHING IN ORDER FOR HIM TO RULE, SUCH AS A ACCOUNT BALANCE STARTING WITH ZERO. I QUOTED BROWN VS. COLUMBUS MANUFACTURING IN COURT PRIOR TO HIM SAYING THAT. ANYWAY, HE THE MAGISTRATE GAVE ME 14 DAYS TO ANSWER...I FILED A MOTION FOR MORE D.S. I FORGOT TO INCLUDE THE PROCESS ON THE MOTION, BUT I DID MAIL A COPY TO THE LAWYER AND HAD IT SIGNED FOR AND CONFIRMED. THE JUDGE WARNED ME TO MAKE SURE I DOCUMENT ALL PROCESS PROOF IN THE FUTURE AND HAD HIS CLERK FORWARD A SECOND COPY TO THE LAWYER. HE "GAVE LEAVE" OF THIRTHY DAYS AND THIS WAS THERE PATHETIC ANSWER. I THINK I SHOULD GO FOR THE WIN?! I'M I BEING TO BRAZEN? I MEAN MOTION TO DISMISS!!! THANKS IN ADVANCE!!

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Did you look at your court file? Their response is improper, but maybe they attached those things to the complaint, and file it with the court, but didn't bother to send you a copy. (duh)  I am thinking you could do a motion to dismiss, but I think you should let a  couple of people weigh in on the subject, there might be another way to go. :).

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Did you look at your court file? Their response is improper, but maybe they attached those things to the complaint, and file it with the court, but didn't bother to send you a copy. (duh)  I am thinking you could do a motion to dismiss, but I think you should let a  couple of people weigh in on the subject, there might be another way to go. :-).

I spoke to a lawyer, (not in OHio) where i live. And he said not to do anything, it is up to the Judge to rule. I has been nearly a month since the JDB asked the judge to deny my motion and still nothing. Does this sound right in any state??  He said to call the courts and ask the Judge to set a trial to rule, or to rule in camera, which is not in court.  Any thoughts??

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One of the things that you might do at this time is to file a motion to dismiss in lieu of answer. 

 

If the Plaintiff doesn't have any evidence then the lawsuit is frivolous and the Court may not allow it to move forward. The Ohio Statute of Limitations on Debt is 6 years. Has this tolled.  You can obtain the last payment date from a credit report and use that in your defense. 

 

I've attached a Template for a MTD with a Memorandum of Points and Authorities. You will probably need a cover letter and I would have your memorandum notorized. You will also need to provide a certificate of service proving you mailed the Plaintiff a copy.

 

Best,

 

HP

I like your motion to dismiss in lieu of an answer idea. I can see that it is allowed in my state, but i can't tell by reading the rules of c.p.if it is acceptable to file consecutive motions. and as i said above a lawyer said to me that i don't have to do anything but maybe call the courts and ask for a ruling. that seems odd to me. what is your take? thanks again for your imput. i am great appreciative of the hel!!

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With any motion you can call and request a 10 minute oral argument with the judge. You should be able to get a ruling but has to re requested in advance. Just calling and waiting to see what the outcome is may not be in your favor. It can't hurt to talk to the clerk or go to the Court web page and check the status on your case. Consecutive motions are not a problem in most courts as long as they follow proper procedure with all the confering with opposing attorney conference and meet the submittal form set requirements. 

 

HP

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