We last spoke about the collector filing an answer to your Fair Debt Collection Practices Act (FDCPA) complaint but sometimes debt collectors file a motion to dismiss. This article will pick up with our book on this subject.
Occasionally debt collectors will not file an answer but instead will ask the court to throw all of your case out of court. Or perhaps just part of your case.
This is called a “motion to dismiss.”
The basic concept is the debt collector says “Judge, there is no way the consumer can win even if everything that is in the complaint is true. You have to throw out all (or part) of the case.”
These are rarely granted because it would be an odd thing for the allegations of the complaint to not be enough to show that the case should go forward.
So if these are not granted, why file them?
Sometimes debt collectors like to stall and they figure if they file a motion to dismiss it will delay things. This rarely happens as judges tend to rule on these quickly.
Sometimes it is simply to see if you are willing to fight back. Frankly, this is stupid as we are not going to file a lawsuit and then be scared by a motion to dismiss. But sometimes this is the motivation.
So if a motion to dismiss is filed, what happens next?
If the judge doesn’t deny it on his or her own, the judge will give us a deadline to respond. We normally respond and point out that the arguments are bogus.
Often the motion to dismiss will misquote our complaint or will say “I know the consumer says X but I think he or she really meant to say Y and we win if the consumer says Y.”
OK. But we didn’t say what you want us to say!
Anyway, these motions simply take up time and ultimately make it more expensive for the debt collector at the end of the case because the collector has to pay our hourly rate. They hate doing this in general and certainly hate our specific hourly rate. Too bad — it is the price of doing stupid stuff like filing a motion to dismiss.
Once the court denies the motion to dismiss, then the judge will tell the debt collector to file the answer. You can read the previous chapter so you will know what to expect when you get a copy of the defendant’s answer.
OK, so we get past any nonsense with a motion to dismiss. What happens next?
We meet with the lawyer for the debt collector to set up proposed deadlines. This is called the “meeting of the parties” or the “party planning meeting.”