Author Topic: SOL documentation for adequate defense  (Read 1851 times)

0 Members and 1 Guest are viewing this topic.

Brunothe JDBKiller

  • Valued Member
  • Posts: 5225
Re: SOL documentation for adequate defense
« Reply #30 on: August 30, 2014 10:07:40 PM »
Discovery starts within a few days of the complaint being filed. Please tell me you don't know this.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

Bubbles

  • Valued Member
  • Posts: 494
Re: SOL documentation for adequate defense
« Reply #31 on: August 30, 2014 10:15:46 PM »
Yes, but there are only 20 - 30 days to file a response to the complaint.

What action would YOU take on day 18, or 28, when you don't have the desired discovery?

 

BellEbutton

  • Valued Member
  • Posts: 1448
Re: SOL documentation for adequate defense
« Reply #32 on: August 30, 2014 10:44:01 PM »
Yes, but there are only 20 - 30 days to file a response to the complaint.

What action would YOU take on day 18, or 28, when you don't have the desired discovery?

Answer the complaint and assert the SOL as an affirmative defense. 

Bubbles

  • Valued Member
  • Posts: 494
Re: SOL documentation for adequate defense
« Reply #33 on: August 31, 2014 02:57:12 AM »
I quit.

Flyingifr

  • -DEAN EMERITUS-
  • Valued Member
  • Posts: 6958
  • Thank you Sears, NCO, AA and the rest for my toy
Re: SOL documentation for adequate defense
« Reply #34 on: August 31, 2014 03:25:17 PM »
Yes, but there are only 20 - 30 days to file a response to the complaint.

What action would YOU take on day 18, or 28, when you don't have the desired discovery?

Assert the defense first because in most jurisdictions, if you don't assert the defense on time, you waive it. Discovery comes later.
BTW-the Flyingifr Method does work. (quoted from Hannah on Infinite Credit, September 19, 2006)

I think of a telephone as a Debt Collector's crowbar. With such a device it is possible to pry one's mouth open wide enough to allow the insertion of a foot or two.

Morality of Debt? No one ever went to the Nether Regions for not paying a debt.

Founder of the Credit Terrorist Training Camp (Debtorboards)

Brunothe JDBKiller

  • Valued Member
  • Posts: 5225
Re: SOL documentation for adequate defense
« Reply #35 on: August 31, 2014 07:05:20 PM »
I quit.



You're teasing us, aren't you. LOL Just kidding.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

Bubbles

  • Valued Member
  • Posts: 494
Re: SOL documentation for adequate defense
« Reply #36 on: August 31, 2014 08:12:38 PM »
Ok, but conceptually, what does that missing date mean?

Lack of ultimate facts sufficient to state a claim? The complaint not being sufficiently definite to form an opinion as to the viability of SOL as an affirmative defense?

Imagine by some fluke the judge goes through various complaints. Complaint turns up where date of accrual is not alleged. Judge recognizes that the complaint lacks ultimate facts sufficient to prove that court has subject matter jurisdiction. This is a threshold issue. Even if the money is owed, past SOL court has no authority to provide relief to plaintiff. 

If case is not disposed via motion in the pre-answer stage, then of course the SOL defense would be reasserted with answer and counterclaims.

As an aside, in at least one State, providing an answer immediately puts the case in mandatory court ordered arbitration. That can be an expensive proposition for defendant. And if case goes that far due to failure to get case dismissed via motion, then what would be different at trial? 

Let's say there is a 50/50 chance the judge would dismiss the case at trial, or perhaps between answer and trial.

Now assume a pre-answer motion to dismiss with a 50/50 chance of being granted. Now the overall chance of plaintiff winning is 50% x 50% = 25%.

Better still, the pre-answer motion experience will improve our chances in the event the case goes into post-answer stage.

Of course, even if denied, the pre-answer motion to dismiss is costly to plaintiff in time and money.     
 

Flyingifr

  • -DEAN EMERITUS-
  • Valued Member
  • Posts: 6958
  • Thank you Sears, NCO, AA and the rest for my toy
Re: SOL documentation for adequate defense
« Reply #37 on: Yesterday at 06:28:06 PM »
Bubbles - evidence need not be presented in the Pleadings - that is what trial is for, and in Discovery (which occurs between the Pleadings and the Trial) one gets the evidence needed to support the pleadings.
BTW-the Flyingifr Method does work. (quoted from Hannah on Infinite Credit, September 19, 2006)

I think of a telephone as a Debt Collector's crowbar. With such a device it is possible to pry one's mouth open wide enough to allow the insertion of a foot or two.

Morality of Debt? No one ever went to the Nether Regions for not paying a debt.

Founder of the Credit Terrorist Training Camp (Debtorboards)

Brunothe JDBKiller

  • Valued Member
  • Posts: 5225
Re: SOL documentation for adequate defense
« Reply #38 on: Yesterday at 06:38:14 PM »
Imagine by some fluke the judge goes through various complaints. Complaint turns up where date of accrual is not alleged.

No judge does this, it's not his job to find discrepancies in a complaint, it's yours. If he did this he would actually be defending one of the parties, which would be unethical.

The rules of procedure set out the sequence and the manner in which the parties shall litigate the case. If you think the SOL is expired, submit your proof in a motion, failure to state a claim upon which relief can granted.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

Admin9541

  • Administrator
  • *****
  • Posts: 494
Re: SOL documentation for adequate defense
« Reply #39 on: Yesterday at 09:22:54 PM »
It's time to get this thread back to the topic of the OP, Ranger. 

Speculation and What-Ifs will not help them.

Bubbles

  • Valued Member
  • Posts: 494
Re: SOL documentation for adequate defense
« Reply #40 on: Yesterday at 09:40:58 PM »
+23

It's time to get this thread back to the topic of the OP, Ranger. 

Speculation and What-Ifs will not help them.

BellEbutton

  • Valued Member
  • Posts: 1448
Re: SOL documentation for adequate defense
« Reply #41 on: Yesterday at 10:07:31 PM »
+23

Bubbles,

You're the one doing all the speculating.   It's simple.  If you have the evidence to show that the account is time-barred, you file a motion to dismiss.  If you don't have the evidence, you go through discovery.  Here's some court rulings for you.

A motion to dismiss for failure to state a claim upon which relief can be granted tests the legal sufficiency of the claim, rather than the facts supporting it. MBNA America Bank v. Rogers, 835 N.E.2d 219, 220 (Ind.App.2005).

A motion to dismiss a complaint for failure to state a claim upon which relief can be granted tests the legal sufficiency of the complaint. Beloit Liquidating Trust v. Grade, 2004 WI 39, 270 Wis. 2d 356, 677 N.W.2d 298. A complaint should not be dismissed as legally insufficient unless it appears certain that a plaintiff cannot recover under any circumstances. Id at 17.

Bubbles

  • Valued Member
  • Posts: 494
Re: SOL documentation for adequate defense
« Reply #42 on: Today at 03:29:03 AM »
I appreciate the case law. Principle seems to be that for motion to dismiss for failure to state a claim, issues of law, rather than issues of material fact, are operative.

Basically, OP has not even been served, but is concerned that if served it
might be difficult to prove SOL as an affirmative defense. Some question here as to who would have the greatest burden of proof.

Best case would be that, if served, complaint on its face shows action barred.

Key to that scenario is that complaint alleges date of accrual.

I had just the experience about which OP is concerned.

Action was time-barred, but complaint lacked allegation of date of accrual.

It might not have been entirely correct, but I filed a motion to dismiss
for failure to state a claim. My reasoning was that, ultimately, plaintiff would have to allege a date of accrual to prove that the court had subject matter jurisdiction. That is a threshold issue, and the court certainly would not want to waste time on a case for which it lacked jurisdiction.

On its own, plaintiff filed an amended complaint, which alleged the date of accrual. On that basis, I was able to file a motion to dismiss because, on its face, the pleading showed that the action was barred. I never admitted to the debt. Only procedural law was involved.  No discovery was necessary.

Perhaps in the case just described a motion for more definite statement would have been more correct.

 

credit