P7 – The Motion to Dismiss, How to Prepare
0:01
Well, Hi, everybody.
0:01
This is John Jay, and I wanted to go over the actual details of how to respond to a lawsuit to start with.
0:09
Now, I’m not saying everybody should do this all the time if you get sued and maybe you’ll never get sued. They’d be great.
0:15
This strategy is used for, for unsecured debt collections. You can also use it for Secure Debt Collections. For example, you can use it for.
0:24
Car loans. Usually a car loan, though.
0:27
The car has been sold, you know, repossessed and sold and then the lawsuit would be an unsecured debt at that point even though it was really a secured debt but the car is already been sold. That’s how it works. But for a mortgage foreclosure. That’s a judicial foreclosure. You can use this strategy as: Well, it looks. it works really well.
0:44
So, I’m going to switch over to this example here. And just keep in mind, this technical explanation is like the second part of the interview, that Bill Smith, and I did with events, OK.
1:01
Alright, Sue.
1:08
Right?
1:08
This is called a motion to dismiss, so this responds to, let’s say, a credit card lawsuit, or a debt collector lawsuit, where or when you file a motion to dismiss, you’re admitting each and every allegation in the complaint. That’s properly before the court. It’s correctly pled.
1:24
You’re admitting each of those, but you’re saying even if that were all true, the plaintiff doesn’t have the right to sue me, and the court doesn’t have jurisdiction And there’s a certain reason why. So I don’t like to say anything crazy.
1:35
Like, dollars aren’t real, or you know, there’s no money, you know, stuff doesn’t matter. None of that matters. Judges don’t want to hear that, They’ve heard it a lot for years, it doesn’t really have any legal merit.
1:48
What does though, is when you criticize the allegations in the complaint, so a great way to criticize them, would be like this. Let’s say somebody sued you said, you breach the contract with me.
1:59
And I’ve attached a copy of the contract and the contract that was attached, let’s say has someone else’s name on it, or doesn’t have your signature on it or something like that, OK.
2:12
Well, you would say, All right, well, I had a contract with these people, I admit that, but that’s not the contract and so, that is actually fatale that means, the exhibit of the contract conflicts with what is alleged in the complaint that is fatal, meaning that the complaint cannot move forward.
2:29
Even if the judge did a bad job and let the complaint move forward and denied the motion, you would, you would always win.
2:37
Even if you lost that trial and appeal that it would still get reversed because the court never had jurisdiction because the exhibit conflicted with what was alleged in the complaint.
2:50
So, here’s what, here’s where we get into this, all right?
2:52
So, here’s the, this is a motion, I found out this, This happens sometimes, because, a case might come across our desk, our desk, late, or the person might have one day to answer. Maybe he’s already a month late, OK? Sometimes you can answer these complaints a month late, even after there’s a default. A lot of times, if you’re, if you’re quick enough, you can get a default reversed.
3:17
Now, I don’t have a motion here for that, but if I were to answer it, let’s say, um, I was going to be late.
3:25
And I know I’m really late. I would. I would look at the darkening sheet online, and I would see that the court already maybe entered a default notice or there was a motion for default or the court entered a default judgement, something like that.
3:35
So, in addition to what I’m going to show you right now, I would also ask that the court set aside or vacate default or entry of default, for the reasons I’m going to explain to you. So I didn’t put that in here, but just say, you know, that’s what you would do in this case.
3:47
So what I said is that, first of all, whenever I make an appearance like this for the first time, I’m going to say, it’s by special, limited appearance.
3:54
In other words, I’m not saying that, I’m not agreeing or consenting that the Court has jurisdiction yet.
3:59
But I’m going to appear just so we can get reached justice, you know, I want to get the same result. So, I’m saying, I’m hearing by special limited appearance only for this purpose to move the Court. Oh, I did say this, OK, Motion to set aside default? Sorry, I sometimes slips my mind.
4:13
So, I’m gonna ask to answer out of time, which means I want to be able to answer late so I need the Court’s permission to do that.
4:20
And if there wasn’t entry of default, or default judgement already, I want to ask that. It be set aside, and it’s going to be for these reasons here.
4:30
Now, this doesn’t apply here, OK, Because. Like I said, this is a hodgepodge of different situations, but generally, this is the kind of motion you want to file. So just keep this in mind. You’re gonna have to edit this document.
4:42
This is what I’m telling, the Court, the courts’ purpose is to further justice and not allow a party to win on a technicality. Even though we see that a lot. Maybe it’s because the person didn’t argue the case well enough. So the court is supposed to make a ruling or it’s inclined to make rulings on the merits of the claims.
4:59
So, we want, um, we want to tell the court that the defense has merits, so don’t just allow the default to stand.
5:11
Please let me answer late, because I actually have a pretty good defense and it’s in that furtherance of Justice, OK.
5:17
The second reason would be that my failure to answer timely was due to excusable neglect, OK.
5:28
There’s a good excuse, and I might have to say what that is.
5:31
I might say something like, I was on vacation for three weeks, or I was in the hospital. Or the summons was left behind my bushes in the front door and I was never served properly or, you know, whatever.
5:45
Um, then, I, when I discovered this, I acted with due diligence. Now, sometimes, the facts behind this would be, I never got served.
5:54
Um, and by the way, if that’s the case, you can follow and file a totally different motion, but this will cover it.
6:00
This. what I’m showing you right here will cover that. But sometimes, you’ll find out about a lawsuit before you get served, or, even if you don’t get serve, you’ll find out.
6:07
Because attorneys are searching public records for new lawsuits and they’ll send sales letters to the people, the defendants, soliciting them for representation.
6:17
So that’s a lot of times where you’ll find out that you’ve been sued, OK, without being served yet.
6:22
So once you discover that you acted quickly and you want you found out response, you found someone to help you, or you figured out how to respond, sometimes, you may have been looking for an attorney to represent you, And that’s the cause of being late to answer.
6:37
And that you also want to say that, you believe that no substantial prejudice will result to either party, even yourself.
6:44
The judge is concerned about that when he’s supposed to be anyways.
6:46
All right, So generally, I sum it all up.
6:50
And I just move on. Now, here’s what’s going to happen. Unless I’m, like six months late.
6:55
The judge is pretty much going to set it aside. I mean, I’ve had some pretty, pretty, I think. Probably the furthest I’ve gone to getting a judgement set aside was like two months.
7:04
And sometimes you have to have a better reason the longer it goes. So I just threw this in here. Now in your case, maybe you got served yesterday and you could just disregard this whole page here. You just delete it.
7:13
You don’t need it, OK?
7:16
You can see the signature block goes to the next line.
7:19
Of course, you can do you can make it neater. Alright. So again, this is redundant.
7:24
You need to customize these forms.
7:26
I’m going to show you the most important part of this whole thing though.
7:29
But I like to appear specially.
7:32
And then we go to, here’s the actual motion. Now, I like to say, verified motion.
7:37
And the reason why I say verified motion is because, at the bottom, I’m going to say, I, John Smith, they defend it. And verifying that the statements here are made in good faith. And I’m not just trying to cause delay or harass them or cost cost him more money. Which actually, that is not my purpose.
7:56
But that is what’s going to happen. So just so you’re aware of that. But if you say this in your verification, it’s just a technicality and the judge appreciates that, he’s going to assume you’re not going to do that anyways.
8:08
So anyways, Um, again, I’m going to say I’m appearing by general, I’m sorry, Not general parents but special appearance.
8:17
And then here’s, Here’s my argument. This is what I want to get to.
8:21
I’m going to say that I want this dismissed because the complaint failed to state a cause of action or a claim upon which relief could be granted.
8:33
Now, that’s technical language for saying the Court lacks jurisdiction because the pleating is legally insufficient and the reason why it’s legally insufficient is because the exhibit’s conflict, with the allegations.
8:45
This is really powerful.
8:49
Here’s what I said, I’m going to summarize it exhibits attached to the complaint, conflict, with the material allegations of the complaint, the material allegations mean the most important allegations.
8:59
I’m going to tell the judge that I understand what this means, assuming all the allegations to be true, because you have to with a motion to dismiss, that’s how the Court looks at it. The exhibits attached to the complaint or exhibits upon which the complaint is based.
9:11
Yes, we know that these exhibits conflict with the pleating, pretty simple, huh.
9:16
Specifically, the defendant is not identified in any exhibits as alleged in the complaint. So, this is typically what happens. It’s probably 99.9% of the time. Citibank, Sue somebody, or even a debt collector, sue somebody and puts a copy of the credit application in there that’s not the credit agreement.
9:34
Or puts a copy of a credit agreement, which is a generic copy that anyone can download from the Internet, which has no date on it. and no signature. And maybe it has the defendant’s identifying information like name and address.
9:45
But that does not show that the defendant had ever had knowledge of that agreement or have ever received a copy of it or ever consented to its terms, OK.
9:54
So, just showing that makes it insufficient. So what you’re saying is it says it alleges in the pleading that there was an agreement. And then exhibit A shows a copy of an agreement but this is not the agreement alleged in the complaint.
10:08
Because the one alleged in the complaint pertains to an agreement between the plaintiff and the defendant.
10:13
And what they showed an exhibit A was not that.
10:17
Now, what happens if they have an agreement with your signature, and you look at it say, Well, that’s a copy of my signature. I know it is, well. What if I would if you paid me a check a year ago, you wrote me a check for $100?
10:29
Then I photocopied it. And I cashed the check for $100. And then I have a copy of your check for $100. And then I I go to deposit that second.
10:38
The copy of the first check, a few months after that.
10:42
Well, I got your signature on there, right.
10:43
Is that binding on you?
10:46
Because you didn’t authorize that. That’s a forgery. I made a copy of an instrument with your signature on it.
10:51
And therefore, even though that appears physically as your signature, it’s legally not your signature because you didn’t authorize it.
11:00
Same thing, if it were a signature stamp, or an image of your signature.
11:05
The fact that I’m using it without your authorization makes it a forgery.
11:08
So at the very minimum, you’re not gonna say that in here, but you’re just gonna say, Look, what’s it attaches? Exhibit A or, you know, what appears to be. A hand-written signature is not mine. Now you don’t even have to say that at this point.
11:22
All you have to say is, that the exhibit is not what was alleged in the complaint, there’s a conflict.
11:29
So, an exhibit is an allegation and just the written words in the pleating are, those are also allegations.
11:38
They’re all allegations.
11:39
So if you have two allegations and their number like 1 through 10 or something, exhibit ABC, and it’s an allegation seven conflicts with exhibit A Your allegations conflict with each other so the Court can’t hear the complaint.
11:52
It doesn’t have jurisdiction.
11:55
Even admitting everything, OK?
12:00
Now this is why I say because like in the example where, Who knows about the?
12:07
What appears to be the contract?
12:09
Where is there any indication that you ever saw it? Consent consented to it or were notified of its existence or the terms therein?
12:16
There isn’t any and you wouldn’t get to that anyways but it has to be at least pled in the case or alleged and that’s not in there.
12:23
So you say none of these exhibits have been served upon the defendant, the plaintiff has failed to notice the definitive any of these exhibits, therefore they’re not binding on you if you’ve never heard of them before, this is the first time. All right, normally, before you create a liability, you serve notice of some obligation and a default of that obligation, and then you can sue. Well, what we’re saying here is that your net, you’ve never been made aware of these terms, so this is the first time I’ve ever seen that so it’s not binding on you, OK.
12:50
So, even though they alleged it in words, the exhibit’s erases that.
12:55
Some states, you’ll have nice memorandum of law. I’m not saying you have to go look it up.
12:58
Some of you might want to look it up, I mean, basically, what you want to find is that you want to find case law that says that exhibits attached to pleating are allegations, and if they conflict with the other allegations in the pleating, then the court can’t take jurisdiction.
13:16
Alright, You’re not going to find that in all the states.
13:19
So, if you want it, like, you could just summarily refer to, generally, the rule and the courts will understand, Even if you don’t cite a rule, the courts will understand what your argument is.
13:30
You want to talk about generally exhibits and pleadings then any pleading that refers to an exhibit as attached shelve in fact, be accompanied by the exhibit that’s most rules now. I’m not saying you’re gonna find the case law on that, because in many states, this hasn’t ever been tested in the appeals court. Some States it has, and there’s some nice holdings on this issue, but most of the rules will say what’s alleged in the complaint, if there’s a contract alleged in the complaint, it should be exhibited.
13:57
Even though they exhibited a contract, you’re going to say that is not the contract.
14:03
So that exhibit is an allegation which conflicts with the other allegations alleging a contract.
14:09
They can’t get out of that because only you can say that they have no personal knowledge.
14:18
This is another technicality. We’re not getting who cares about this. It’s not really that important.
14:22
So, there, we have our verification, OK. And then I’m going to ask for the thing.
14:26
Here’s what I want. I want the case dismissed.
14:31
And whatever else the judge decides, OK, here’s what we’ll generally happen now in Fences case.
14:37
He won on this motion.
14:40
We had a memorandum of law that had no supporting case law on the rule.
14:45
You don’t need it, in my opinion.
14:48
It’s nice if you can have it.
14:50
And he won the motion, but the judge gave the plaintiff time to amend the pleading which it did. We revise the motion based on what the amendments were, there were no amendments by the way. So then, the judge granted the motion a second time.
15:04
So we beat them a second time, then the judge ordered them to amend the pleating one last time at which they did, and then the judge denied our motion, and we had to answer and get into discovery. And that’s kinda where the cases now, and it took a year to get there.
15:20
Just from filing a couple of documents is showing up at one hearing. And so, the whole point here is that, yeah, you can be pretty smart and respond to a complaint this way, But really, what you should be concerned with is that you eliminate your risk, which we didn’t invent this case, so then he was able to decide to not participate anymore, and just let him have the case. And so, that’ll, that’ll play out for the rest of the year, and then it’ll have taken almost two years to get a judgement in that case.
15:43
And maybe he spent a few hours of his time to learn this, and he’ll he’ll be, you know, a little bit more informed in the future, OK, But the end game for you is, this is a smart way to respond so you actually know what to do.
15:56
And the end game is, it’s worthless, because you’re uncollectible anyways.
16:02
Now, I’ll just say something about answering. Let’s say your emotions denied well, you want to follow written answer then. So generally.
16:10
You go through each numbered allegation or each sequential allegation in the complaint. And you can you can just deny it.
16:16
That’s all you have to do is just denied even if they say your name is John Smith, and that’s your name, just deny it.
16:21
It doesn’t matter. You’re not lying.
16:22
You just deny what that means is when you deny allegations in a civil complaint is your your you’re Keeping the burden of proof where it is OK, the plaintiff has the burden of proof.
16:34
So when you deny an allegation, well then the plaintiff has to prove it, which sometimes you can and sometimes you can’t make them do it.
16:40
A lot of times you’d be surprised if you push them to having to prove an allegation you that could win your case, even if it’s provable. The plaintiff may not be ready for that.
16:51
So even if you’re completely wrong and you’re completely liable make improve it. Don’t ever give it up.
16:58
Then, you have to do this, you have to sort of give a certificate of service stating that, you mailed it and by first class mail to the attorney with his name at the address. Now, in this, I don’t mentioned that it’s being mailed to the clerk of the court, but you always want to mail to the clerk of the court. So that way it’s time stamped, and it shows that you answered within the time or that you asked for permission to answer later, whatever. It has to go to the clerk of the court, and it has to go to the opposing attorney, Not the law firm, address it only to the attorney.
17:28
Then bouncing back to the answer, I just wanted to mention.
17:32
When you do the answer, I always like to send discovery, at the same time. Discovery means you ask them questions that require them to prove their case, OK, And the reason why I do that, and I’ll just tell you briefly, is because, I mean, we can go on for hours on this.
17:48
But briefly, if I have to answer a complaint, when I, when I filed the answer, I’m going to I’m going to send discovery questions. Normally they’re called interrogatories, request for production, deposition notices. Those come later sometimes.
18:02
Request for production of documents, things like that.
18:05
The reason why I do that is because if the other side wants to do discovery, then I’ve already started discovery first, and then the other side would start discovery second.
18:16
And then chances are, I would end up answering their discovery last and they wouldn’t be able to do any more discovery.
18:21
That, would it be the end of discovery And because I answered last with my final discovery answer, I can ask for summary judgement.
18:31
Really makes it difficult for the plaintiff to ask for summary judgement before you ask for summary judgement.
18:37
So if you start discovery first, you control the proceeding with the timelines required for discovery, you just have to be a little diligent on what you’re doing, OK, there’s a bit of strategy. Sounds like playing chess, OK.
18:51
But anyways, um, that certifies that you mail that.
18:53
If you do not include the certificate of service, it has to be dated.
18:58
And you only need your initials here. You do not need to sign it.
19:01
And anybody can do this. Charlie Brown can do it. Anybody who’s, you know, a competent person, can put his name here and put his initials. Nobody, the court doesn’t care. It’s just that they want somebody to do that, OK?
19:13
Now, in some jurisdictions, like New York, I think it requires an affidavit. And the reason why they do that is just to frustrate people because attorneys have notaries right there in the office, and they can just easily the papers over there and get them mailed. What you have to go out of your way and maybe go to a UPS store and get someone to notarized and all that stuff. And so that’s why they do it.
19:30
And also, in some jurisdictions, like New York, probably, California.
19:34
also, you have to have some other documents, like a notice of hearing, or you have to call ahead to the clerk, or the judicial assistant, and try to get a hearing date before you filed the motion.
19:44
So, I’m not going to get into those details, but just be aware that sometimes, if you file this motion, and you don’t include a filing fee or a waiver request for the filing fee, it’ll get sent back to you.
19:55
But that’s another good reason to mail it to the attorney as well, so that that way, the, the attorney knows you did that.
20:00
And the clerk is not supposed to send documents back without darkening them first, the clerk should docket them and then tell you about a mistake what the what they’re doing lately. In the last few years, I noticed they’re sending the documents back and not … them. So it makes it look like you’re late, which really is falsifying public records. So just keep that in mind but you just have to be diligent when it comes to that. Maybe call the clerk up and asked. There’s a filing fee.
20:22
Lots of times when you answer a complaint, there’s going to be a filing fee.
20:26
You can search on the Internet for what’s called a fee waiver affidavit.
20:30
So you would search on the name of your court, and then you would search on fee waiver affidavit that term, or you would search on Application for Indigent Status.
20:42
And so as you’ll see what that, what that is you can look for right now, You’ll find that most on the internet, All right.
20:47
And here is an order. Sometimes the judges want you to do this. Sometimes they don’t. This is like being polite to the judge.
20:53
This is like having good manners You write this up, and the judge sees it, and he says OK, Well, this guy, you know, he’s not a jerk He’s he’s trying to help me out here and You give a spot for the judge to you know circle That or circle that Now I didn’t do it on here, but sometimes I put like 3 or 4 lines beneath the ordered adjudged statement and I leave them blank. Like I just put a line all the way cross on for 3 or 4 lines And that way the judge has space to write more conditions in the order.
21:21
OK, you can do it that way or some judges just do it anyway, So I’ll just write on top of your order or they’ll get their own, They’ll get their assistant to write up something.
21:28
Sometimes they’ll order the other attorney to write up something, So, it just depends.
21:31
And then down here, of course, you put the correct names and addresses that way, Whoever sending this out will mail it to the proper parties, OK?
21:39
That’s the easy side of it.
21:42
This should not take you if you did it.
21:43
If you did one for the first time ever, I don’t think it would take you more than an hour to do this, I mean, really, 15 minutes.
21:50
But, um, this is a great way to stop a civil court proceeding.
21:57
If you file this, the moving Party is supposed to set a here, a set of hearing.
22:01
You can pretend to set a hearing where you’re required to show a hearing date, You can just make one up or not.
22:08
And what will happen is the opposing attorney will see that you didn’t set a hearing on your motion, which he knows you’re required to do, and because he wants to move the case forward, he’ll set the hearing and then he’s supposed to contact you and co-ordinate the hearing date.
22:21
But they usually don’t, because you don’t have an attorney, which is not fair, but that’s how they do it.
22:25
So, Or they’ll claim they did and they didn’t.
22:28
So let the attorney set a hearing and then notify you as to the hearing date.
22:32
If the hearing date is, yeah. Like, have a problem with it or something like conflicts with something.
22:36
You can send a notice into the court saying that the time was that co-ordinated with you and it was set unilaterally and the attorney supposed to co-ordinate the time and date with you and didn’t And you want a continuance, OK? You can so you can file a motion to continue because of that. And lots of times in some courts, it’s very strict rule to co-ordinate the time in advance, what the other party.
22:57
So just keep that in mind. So, let the attorney set a hearing on this, because sometimes they’ll forget.
23:02
And it’ll just sit there for weeks and weeks and weeks because they’re used to other attorneys, you know, setting hearings on their own motions.
23:10
But just be aware, you know, watch the case. I would check in if it’s important to check in once in a while, but I check them with the clerk of the court, look at the darkening sheet, Sometimes I’ll set a hearing and not tell you until the last day so it’s kind of nice to know when that’s going on.
23:22
Um, then if you’re already protected, you already know your bank accounts covered, your third party, account holdings stock, all that stuff is out of your name, LLCs, trust. It’s all set up.
23:34
You already understand about the wage issue. That’s a that’s a thing. You already got that covered.
23:38
Real estate interests, you can protect those in advance. You got you really got months of time to deal with all those preparations so that way, it doesn’t matter if they get a judgement in the end, because most of the time they do. It doesn’t matter if you’re right or anything. That’s not what the system the system is there. To launder money, OK? And when they launder the money, that means, no matter what your defenses are, ultimately, the court’s gonna give him that judgement. Then some people ask me, well, why even bother responding well, you should respond.
24:04
I mean, sometimes you’ll win, And then sometimes the attorney will give up. Sometimes they’ll try again. They’ll get a new law firm, so you know why why not?
24:11
Why not do it learn how to do it the confident, and, you know, if they get their judgement, well, then it’s going to cost them $10000 to get nothing.
24:20
Whereas if you don’t respond, then it’ll cost them maybe $500 to put a lien on your house, OK? So, it’s better to respond.
24:27
Push the time period back, and give yourself a chance to re-organize your property right, so they can’t attach anything.
24:37
So, I hope that wasn’t too much information, asked for the form. If you don’t see it connected to this video, or asked for the latest form, chances are, we may have something.
24:47
But, I’ve been using that particular strategy for at least, I don’t know, 12 to 15 years, virtually unchanged. You’re going to be just fine with that.
24:58
Thanks for watching.