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Failure to prosecute? Midland funding


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Long time lurker.. Bla bla

In 2012 we were sued by a JDB. (midland) We chose to defend ourselves, lack of funds and all that. We got as far as asking for documents, etc. they sent most of what we asked for and some legal reasons why they wouldn't send the rest. That was in March of 2013. There's been nothing since. I religiously check the court docket. Nothing has happened, complete radio silence.

Are we entitled to ask for a motion to dismiss based on failure to prosecute or is there something else we need to do first? I feel like the ball should be in their court right now or I would have heard something from somebody. Also, are we entitled to damages? They filed a suit hoping we wouldn't respond, knowing they couldn't win.

I'm trending towards a rant now... Thank you in advance for your time.

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Per your Rules of Civil Proceedure (http://www.oklegislature.gov/osstatuestitle.html) in section 12-683:

 

 

 

Dismissal of action - Grounds and time.

By the court, on the application of some of the defendants, where there are others whom the plaintiff fails to prosecute with diligence;

 

The question is what do they consider "fails to prosecute with diligence"? AKA what is a diligent time frame? 

 

Unfortunately there is no specific language in the RCP to define the time frame and it appears it's at the judges discretion to decide the matter. Since it has been close to 12 months, I think you have a good case in this matter. You should prepare a motion to dismiss based on the Plaintiffs failure to prosecute the case. Do this ASAP, you never know when they might poke their head up and file something to keep the case active. You'll likely get a dismissal without prejudice but at least SOL will no longer be tolled. I would still request a dismissal WITH prejudice and let the judge decide.

 

Regarding damages, I don't see any damages that you can prove unless they've violated the FDCPA in some way. Filing a case and then not following through on the action is common and not considered bad form or something that's damaged you.

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My biggest complaint, other than the lack of action, is that they reported this as a new debt on credit reports one week before they filed. (SOL is passed) It appears to me they were attempting to re-age the debt. Would it appear that way to a judge? I don't know.

I just don't know if it's worth pursuing a judgement against them for something like that, I'm pretty sure I can get it removed from the credit report with little trouble.

Thanks for your responses, guess I will get to work drafting a motion.

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My biggest complaint, other than the lack of action, is that they reported this as a new debt on credit reports one week before they filed. (SOL is passed) It appears to me they were attempting to re-age the debt. Would it appear that way to a judge? I don't know.

 

WHEN they report it to the CRAs does not reset the SOL for reporting.  Your date of first default still controls when it can no longer be reported or sued for in court.

 

There is no requirement that they report and doing so one week before filing suit isn't a violation as long as the reporting is accurate.  Slimy and sneaky:  sure but they can wait as long as they want to report as long as it is within that 7 year reporting period.

 

 I'm pretty sure I can get it removed from the credit report with little trouble.

 

Don't bet on it.  Getting it dismissed has nothing to do with reporting and if they can no longer sue you for the debt the one leverage they have left is to keep it on your credit report until the bitter end.

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My biggest complaint, other than the lack of action, is that they reported this as a new debt on credit reports one week before they filed. (SOL is passed) It appears to me they were attempting to re-age the debt. Would it appear that way to a judge? I don't know.

I just don't know if it's worth pursuing a judgement against them for something like that, I'm pretty sure I can get it removed from the credit report with little trouble.

Thanks for your responses, guess I will get to work drafting a motion.

 

 

If SOL had passed prior to the suit being filed you should have motioned to dismiss immediately and counter-claimed a FDCPA violation for filing a lawsuit past SOL. 

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  • 1 month later...

@TornadoAlley, based on your original post SOL has not passed. As long as the case was filed before the SOL was up, the Plaintiff preserved their right to sue.

 

A Defendant's Motion to Dismiss for Lack of Prosecution can bring a dead case back to life. In Florida, you can file this Motion after no case activity after 6 months in small claims, 10 months in Circuit Court. Like many, I originally read Lack of Prosecution in my state's Rules of Procedure and took the rule literally - to my detriment. In practice, many courts will simply turn to the Plaintiff's attorney and ask if they have good cause for the case to continue. Many Plaintiffs will say of course, and then you are back in the middle of a heated lawsuit. If you make a demand for damages along with a Lack of Prosecution, the Plaintiff will definitely oppose and seek to continue the case.

 

I think you want to check with a local attorney on how a Motion to Dismiss for Lack pf Prosecution is generally dealt with in your state and/or court, because it certainly could differ from mine. Most Courts also reserve the right to file such a Motion, and often do to clear their dockets. A call to the Judge's Judicial Assistant asking if the Court will file due to lack of prosecution may be preferred here. If the Judge files the Motion, the Plaintiff's attorney may want to be cooperative and dismiss.

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