Author Topic: Example Motion to dismiss  (Read 11963 times)

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sarratori

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Example Motion to dismiss
« on: August 14, 2008 02:51:33 PM »
anyone got a link or example of what this should look like when sent in to the court? 

vialna

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Re: Example Motion to dismiss
« Reply #1 on: August 14, 2008 03:31:20 PM »
look this sample over and use it as a guide...
http://creditboards.com/forums/index.php?showtopic=231931




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« Last Edit: August 14, 2008 03:56:23 PM by Admin0248 »

Rottweiler

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Re: Example Motion to dismiss
« Reply #2 on: August 14, 2008 06:46:46 PM »
That's not the error I got as a "guest" user:  I got an error stating the link was out of date or broken.

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itsmeagain

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Re: Example Motion to dismiss
« Reply #3 on: August 14, 2008 09:30:57 PM »
I am registered there and here is what I got . . .

[Copied from CB]
    MOTION TO DISMISS

    Comes now Defendant, debt tired, appearing Pro Se, moves that the above entitled action be dismissed.

    1. On XXX DATE, Plaintiff filed the above complaint with the Clerk of Court in the State Court of XXX County, Georgia.

    2. In the complaint, the Plaintiff is suing the Defendant for an amount owed with regard to a Revolving Credit Card Account. Plaintiff included a copy of a statement from OC dated XXX, 2001. This was the last statement prior to charge off in XXX 2001. A credit card company must charge off an account 180 days after the first delinquency. The first delinquency occurred in XXX 2000.

    3. Plaintiff’s Complaint is barred by the Statute of Limitations as found in Georgia statute § 9-3-25. The Complaint was filed on XXX Date, and thus the Complaint was filed more than six (6) years after the accrual of the cause of action; which is XXX 2000. Thus, the cause of action is barred by Georgia statute § 9-3-25.

    4. The Plaintiff’s counsel has failed to provide any proof of a relationship between themselves and the alleged original creditor, specifically the authority of the counsel to collect the debt on behalf of the original creditor.

    5. Plaintiff’s counsel has failed to provide a detailed list of the debts to the Defendant in the initial debt collection notice as require by the FDCPA and as evidence by case law. Coppola v. Arrow Financial Services, 302CV577, 2002 WL 32173704(D.Conn., Oct. 29, 2002) – Information relating to the purchase of a bad debt is not proprietary or burdensome. Debtor must phrase their request clearly to obtain: The source of a debt and the amount a bad debt buyer paid for plaintiff’s debt, how amount sought was calculated, where in issue a list of reports to credit bureaus, and documents conferring authority on defendant to collect debt.

    6. Plaintiff’s counsel was notified prior to filing that alleged debt was barred by the Statute of Limitations on XXX DATE. Plaintiff’s counsel then filed the summons on XXX DATE. Plaintiff and Plaintiff’s counsel is in violation of the Fair Debt Collection Practices Act, hereinafter called FDCPA, for attempting to collect on a time-barred debt. (§ 807. False or misleading representations [15 USC 1962e]). Defendant can be entitled to damages per the FDCPA (§ 813. Civil liability [15 USC 1692k]).

    7. Notice of Request for Production of Documents, Interrogatories to Defendant, and Request for Admissions sent by Plaintiff’s counsel was received by Defendant on XXX DATE. These Notices seek information which is irrelevant and immaterial. Additionally, all documentation used to support Defendants affirmative defenses were attached to the answer filed with the Clerk of Court in the State Court of XXX County and also received by Plaintiff on XXX DATE by certified mail.

    WHEREFORE, Defendant debt tired, respectfully requests this court grant the Motion to Dismiss the Complaint, together with the costs and disbursements of this action.


Xlinx5

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Re: Example Motion to dismiss
« Reply #4 on: August 15, 2008 12:47:42 AM »
Name
Address


FOURTH JUDICIAL DISTRICT COURT OF UTAH COUNTY
STATE OF UTAH, AMERICAN FORK

BANK      
      Plaintiff,   
         vs.                     
YOUR NAME   
       Defendant,   )
)
)
)
)
)
)
)   
Case Number 00000000000

         

JUDGE HOWARD H. MAETANI




MOTION FOR DISMISAL


COMES NOW   YOUR NAME, Sui Juris, by special visitation, who is unschooled in law and asks the court to take Judicial Notice of the enunciation of principles as stated in Haines v. Kerner, 404 U.S. 519, wherein the court has directed that those who are unschooled in law making pleadings and/or complaints shall have the court look to the substance of the pleadings rather than the form, and also hereby makes the attached Affidavit, including the related-thereto documents, the “Response” in the above referenced case.

Pursuant to Title 15 USCA 1692  The parties lack the standing to bring suit.

STATEMENT OF FACTS
1.   Plaintiff has failed to state a claim for which relief can be granted, Defendant has requested from Plaintiff verification of the debt pursuant to the Fair Debt Collection Practices Act. (See exhibit A)
2.   Plaintiff has failed to provide Defendant the requisite verification required by 15 USC 1692g(b). 
3.   Federal Court  in re Martinez, 266 B.R. 523 (S.D. Fla. August 2001) held, “When a debt collector has sent a consumer a Fair Debt Collection Practices Act (FDCPA) validation notice together with a summons and complaint, upon acting upon the validation notice by disputing the debt, consumer is under no obligation to respond to the complaint until, at the earliest, debt collector responds with the requested information.  Consumer Credit Protection Act, § 809(b), as amended, 15 U.S.C.A. § 1692g(b).” 
4.    “The FDCPA is a strict liability statute, and one violation is sufficient to establish liability.”  Bentley v. Great Lakes Coll. Bureau, 6 F.3d 60 (2d Cir. 1993).
5.   Attorney knew or should have known that his primary focus is being Debt Collector pursuant to 15 USC 1692(a) when it initiated this instant action. Attorney knows or should have known it lacked the capacity to sue Defendant Your Name within this honorable Court.  As evidenced by exhibits filed with Defendants Motion and Brief and support.  Attorney admitted it is the debt collector.(see Exhibit A)   It is therefore a third party, lacking the capacity to sue Your Name.    Attorney is a Debt Collector and a law firm licensed in this Commonwealth of Utah. 

CONCLUSION
Plaintiff has failed to comply with Federal law and has no authority to proceed with his collection action as he has not verified the debt pursuant to 15 USC 1692g (b).

REMEDY SOUGHT
This Court’s determination that the Plaintiff has not complied with the verification requirement specified in the Fair Debt Collection Practices Act, specifically 15 USC 1692g(b) justly requires this court’s dismissing of this action as Plaintiff has failed to follow due process of the law, and Defendant hereby requests said Dismissal. Defendant also respectfully asks this court to award fees incurred in defense of this action, and any other relief this Court deems just.

Prepared and submitted

by:________________________________
                                YOUR NAME,
Dated: ______________________

 
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