As you know, we just released The Guerrilla Guide to How to Fight a Debt Collection Lawsuit, a book that we hope will help a lot of people out there being preyed on by unscrupulous collection agencies and bill collectors.
However, in doing the research for the book we were amazed to find that many websites, forum and books written by people who were not now and had never been lawyers or had never went to law school were espousing the use of Motions to Dismiss and basically arguing that these are the be all and end all of motion practice in debt collection lawsuits.
In addition, these so called experts take the position that the lawyers on debt collection lawsuits will usually dismiss a case rather than responding to motions.
This "advice" is not only ludicrous, it is also dangerous. Right or wrong, judges routinely order pro se litigants and parties appearing pro per (the same thing) to pay the attorney's fees of the other side if they bring motions which the court does not grant.
Motions to Dismiss are only available for a very few grounds and are not granted very often, particularly when they are filed by someone representing themselves.
A Motion to Dismiss asks the court to decide that a claim, even if everything stated is true, is not one for which the law offers a legal remedy. In other words, assuming all evidence in the other party’s favor a Motion to Dismiss argues that they still don’t have a lawsuit.
How often does a lawyer actually file a lawsuit for someone that has absolutely no way to win? To say that it is rare would be an understatement.
There may be other methods of getting a lawsuit dismissed, such as a Motion for Summary Judgment, but if you read anything by someone telling you that they routinely get cases thrown out by a Motion to Dismiss, then run the other way and look at anything else they tell you with a skeptical eye. This would be equivalent to telling you that they get cases thrown out because the court's flag has a fringe on it (see an earlier post if you are getting information from anywhere other than a lawyer, here, or one of our sponsors).
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