defendant filing a "motion to dismiss" in arizona civil case

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Latest post 01-03-2011 11:25 AM by Michael D. Siegel. 7 replies.
  • 10-20-2010 2:52 PM

    • azjg
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    defendant filing a "motion to dismiss" in arizona civil case

    I was served incorrectly a civil summons through Superior Court of AZ Maricopa County for a credit card debt that is not mine.  I paid court fee and "answered" in timely manner denying all charges I owe the debt.  At such time I also submitted a request for production and validation of debt (on Aug 3, 2010).  The plaintiff has since sent me a interrogatories, request for admissions, and production of debt (due back to PA by Oct 24).  I objected to everything on grounds "stilll awaiting validation of debt/request for production".  Can I go to court and file motion to dismiss on grounds they have not provided the requested information?

     

  • 10-20-2010 3:06 PM In reply to

    • DOCAR
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    Re: defendant filing a "motion to dismiss" in arizona civil case

    Your next step is to file a motion to compel the answers if the deadline to answer has passed.  The request for validation of the debt only applies before the suit is filed.  You are still required to answer proper discovery in a timely manner.

  • 10-20-2010 3:10 PM In reply to

    Re: defendant filing a "motion to dismiss" in arizona civil case

    azjg:

    I was served incorrectly a civil summons through Superior Court of AZ Maricopa County for a credit card debt that is not mine.  I paid court fee and "answered" in timely manner denying all charges I owe the debt.  At such time I also submitted a request for production and validation of debt (on Aug 3, 2010).  The plaintiff has since sent me a interrogatories, request for admissions, and production of debt (due back to PA by Oct 24).  I objected to everything on grounds "stilll awaiting validation of debt/request for production".  Can I go to court and file motion to dismiss on grounds they have not provided the requested information?

    You can try that but it's likely to be denied as improper procedure.

    The proper procedure is to file a Motion to Compel Production of Documents.

    If they still don't come across with the documents the next step is an Order to Show Cause Why the Plaintiff Should Not be Found in Contempt.

    Representing yourself in Superior Court is complex.

     

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  • 10-20-2010 3:15 PM In reply to

    • azjg
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    Re: defendant filing a "motion to dismiss" in arizona civil case

    Thanks for assistance.  I have the notarized replies to the interrogatories and requested admissions issued to me by the plaintiff.  Should I file the motion to compel at this time?  I am set to return the notarized responses in which I object to everything on grounds they have not complied with my initial requests for production and validation of debt.  Also, at what point will I need to file motion to dismiss?   This is a time consuming process to defend myself against a wrongful summons in which they have no evidence I ever even had an account with the said plaintiff.  Is there anything else I can I do to make them prove the debt or get this whole thing dismissed...?  Thanks again...

  • 10-21-2010 2:14 AM In reply to

    • DOCAR
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    Re: defendant filing a "motion to dismiss" in arizona civil case

    objecting on the grounds that they have not responded to your discovery is not a proper ground to object and could subject you to a motion to compel and sanctions.  You should proceed with your own motion to compel and respond to their discovery properly.

  • 10-21-2010 3:04 AM In reply to

    Re: defendant filing a "motion to dismiss" in arizona civil case

    azjg:
    I was served incorrectly a civil summons through Superior Court of AZ Maricopa County for a credit card debt that is not mine.  I paid court fee and "answered" in timely manner denying all charges I owe the debt. 

    In some states, if you were served incorrectly but still filed an answer timely, you have waived your objection to the improper service and cannot seek dismissal on that ground. I've not reasearched that point for AZ, but you'll want to do that to know if you've got a shot at getting it dismissed on that basis.

    azjg:
    At such time I also submitted a request for production and validation of debt (on Aug 3, 2010)

    Did you do that using the court's discovery rules or did you do that pursuant to the federal Fair Debt Collection Practices Act (FDCPA)?

    If the former, then if the plaintiff did not provide the documents you requested, then the correct procedure is a motion to compel the response.

    If the latter, then the plaintiff has no obligation to respond to you. The FDCPA applies only to debt collectors seeking to collect consumer debt. If the creditor is the credit card bank, then the FDCPA doesn't apply at all. If it is a debt collector that is suing, the FDCPA does apply, but the FDCPA doesn't affect the lawsuit. Under the FDCPA, you may request that the collector provide verification of the debt. This need only be a statement from the original creditor that the debt is owed. The collector cannot continue any collection efforts until the validation is provided EXCEPT that the collector may file a lawsuit to get a judgment. The reason that the FDCPA excludes lawsuits is that the creditor will have to provide proof of the debt in court, thus serving the function of giving you the verification.

    azjg:
    The plaintiff has since sent me a interrogatories, request for admissions, and production of debt (due back to PA by Oct 24).  I objected to everything on grounds "stilll awaiting validation of debt/request for production".

    That's not a proper ground for objecting. If you made the request in discovery, then as noted above you need to file a motion to compel to remedy that. The plaintiff's failure to comply with the discovery request you made won't let you off the hook for giving the plaintiff what it asks for. If you don't respond, you may find yourself facing a motion to compel, too.

    azjg:
    Can I go to court and file motion to dismiss on grounds they have not provided the requested information?

    No. Again, if the request you made was pursuant to the discovery rules, then you need to file the motion to compel. Their failure to reply is not grounds for dismissal.

  • 12-30-2010 11:31 AM In reply to

    to linda7766

    I deleted your message and the responses it received because your response violated the Rules of this site, by which you agreed to abide upon registration, which state, "Refrain from giving advice, as in 'you should do this' and 'you should do that'. Give tips and suggestions from your own experience, but recognize that none of us can give legal advice on this website. It's impossible to know every pertinent circumstance in someone's life and presumptuous to think you can fix someone's life in 25 words or less! Give information and options for others to consider."

    Your message recommended a very specific course of action.  You're allowed to suggest that people consider a course of action, but you are not allowed to give directives here.

    Thank you for your understanding.

  • 01-03-2011 11:25 AM In reply to

    Re: defendant filing a "motion to dismiss" in arizona civil case

    Ironically, the cheapest way to handle this type of matter is just to wait for the trial date.  The burden of proof is on them, so they will need to have these documents when the case is tried.  You know that you are not responsible, so you really do not need the documents to understand the case.  Motion practice in this type of case is not as likely to succeed, and requires often more time in court, and certainly more preparation time.

     

    Michael D. Siegel, Esq.

    Siegel & Siegel, P.C.

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    Phone: 212-721-5300

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    website: www.siegelandsiegel.com

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