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Court notice to dismiss collections case for Lack of Prosecution


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Cavalry SPV I filed a suit against me in early 2018 for more than $10,000.  Cavalry submitted credit card monthly statements, bill of sale, and affidavit from OC that doesn't mention my name specifically.  Discovery requests and responses have been submitted by both Cavalry and me in mid 2018.  I recently received a Court Notice to Dismiss for Lack of Prosecution signed by the Circuit Court Clerk.  A meeting date is set about a month from now to discuss 'why the case should not be dismissed at cost of Plaintiff for the reason that no pretrial steps have been taken'.  I'm all for this!  I expect Cavalry's attorney to show up and justify continuance of the case unless i can strike first.  Any recommendations on how to take advantage of this through motion before the Court conference?  Cavalry responses to my Discovery were all boilerplate objections that are technically prohibited in Civil Procedure.  Any help is appreciated!  Thanks!   

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We had a similar occurrence. Sued for a bit over 10K, so it was in Superior Court. We were trying to negotiate a settlement of two accounts and somehow things got confused. Midland dropped the ball and the case was dismissed due to lack of prosecution. They tried to re-open same case (for SOL purposes), but cited rules from Justice Court, instead of Superior. Our lawyer pointed this out, and referenced rule that "settlement negotiations" are not a reason for delayed prosecution, so judge denied plaintiff and case remained dismissed.

So I would scour your court rules for anything that precludes them from re-opening a case that was closed due to lack of prosecution - hopefully there will be certain conditions and their laziness isn't one of them.

 

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Thanks and sorry for the late response.  The OC is Citibank.  Cavalry has two suits against me with one nearing trial.  They claim to have purchased both accounts in single batch of junk debt.  As such, the complaints are nearly identical with the same generic bill of sale and assignment, same asset schedule, but different credit card monthly statement attached to each.  In both suits, Cavalry included an attachment with my name, address, redacted credit card number, and the amount they claim I owe for each.  I guess this attachment with basic information about me is an attempt to link me to the the account and the bundle of debt they purchased.  Thanks for commenting!

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If it were me, I would try to find case law to support my argument that they have waited too long to continue this case and a dismissal is appropriate and then, as a backup, I would prepare an Motion to Compel Arbitration and bring it.  If the court allows the case to continue for some reason, I would stop by the clerk's office and file my MTC before leaving.

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Thanks for the suggestion.  If I'm able to pull together case law to make a worthy argument, must I wait for the court meeting?  I don't know if it would be appropriate to submit a motion to dismiss or motion for summary judgement on top of the Circuit Clerk's order for meeting to discuss.  Unless I have an attorney, I'm much more confident in submitting papers versus an in person debate.  I have a feeling that showing up will be enough for Cavalry's attorney to keep the case active.  We have traded discovery requests and responses, so some action has taken place.  If I could submit some motion, I could pose a legitimate argument that plaintiff's general objections should be construed as a failure to answer.  If the suit is dismissed without prejudice, I would be much more prepared to aggressively defend my position when plaintiff files again.

If a motion to compel arbitration was granted, would this likely end in a settlement?  I think they would be happy to settle now, but I'd prefer not to.  My credit has already been destroyed and the tax consequences aren't too attractive.  

I really appreciate the feedback and suggestions. Thank you.

 

 

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There is no motion to make.  You have a hearing based on court rules.  I would read those rules cited to see what they say is an allowed excuse to continue a case after such a long time.  They would have to present valid proof and arguments that they meet those justifications.  If they don't, all you have to do is say, they don't meet the standard set in Rule XYZ of this court, therefore, this case should be dismissed.  You aren't going to be able to get around showing up for this hearing, but my guess is that it will be in your best interest to do so.

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@Adam1973

This Rule 12 is from Franklin Court, so you need to check your specific court's rule for Dismissal for Lack of Prosecution:

KY FCRC Rule 12
Rule 12 Dismissal for Lack of Prosecution
Currentness
12.01 On motion of either party or on the Court's own motion, the Court may dismiss a civil action for failure to prosecute when that action has remained on the civil docket for one year or more without any step being taken which would indicate an intent to prosecute that action, pursuant to CR 41.02(1) and CR 77.02(2).

Kentucky Rules of Civil Procedure (CR) Rule 41.02
CR 41.02 Involuntary dismissal; effect thereof
Currentness
(1) For failure of the plaintiff to prosecute or to comply with these rules or any order of the court, a defendant may move for dismissal of an action or of any claim against him.
(2) In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52.01.
(3) Unless the court in its order for dismissal otherwise specifies, a dismissal under this Rule, and any dismissal not provided for in Rule 41, other than a dismissal for lack of jurisdiction, for improper venue, for want of prosecution under Rule 77.02(2), or for failure to join a party under Rule 19, operates as an adjudication upon the merits.

Kentucky Rules of Civil Procedure (CR) Rule 77.02
CR 77.02 Trials and hearings; orders in chambers; review of trial dockets
Currentness
(1) All trials upon the merits, except as provided in Rule 43.04, shall be conducted in open court and, so far as convenient, in a regular court room. All other acts or proceedings, except jury trials, may be done or conducted by a judge in chambers without the attendance of the clerk or other court officials, and at any place either within or without the judicial district; but no hearing, other than one ex parte, shall be conducted outside the judicial district without the consent of all parties affected thereby.
(2) At least once each year trial courts shall review all pending actions on their dockets. Notice shall be given to each attorney of record of every case in which no pretrial step has been taken within the last year, that the case will be dismissed in thirty days for want of prosecution except for good cause shown. The court shall enter an order dismissing without prejudice each case in which no answer or an insufficient answer to the notice is made.

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