{"id":10332,"date":"2021-02-10T07:39:37","date_gmt":"2021-02-10T12:39:37","guid":{"rendered":"http:\/\/privacyfight.io\/?p=10332"},"modified":"2023-06-22T11:53:01","modified_gmt":"2023-06-22T15:53:01","slug":"b7-the-motion-to-dismiss-how-to-prepare","status":"publish","type":"post","link":"https:\/\/privacyfight.io\/b7-the-motion-to-dismiss-how-to-prepare\/","title":{"rendered":"P7 &#8211; The Motion to Dismiss, How to Prepare"},"content":{"rendered":"\t\t<div data-elementor-type=\"wp-post\" data-elementor-id=\"10332\" class=\"elementor elementor-10332\" data-elementor-post-type=\"post\">\n\t\t\t\t\t\t<section class=\"elementor-section elementor-top-section elementor-element elementor-element-c3dc19e elementor-section-boxed elementor-section-height-default elementor-section-height-default\" data-id=\"c3dc19e\" data-element_type=\"section\">\n\t\t\t\t\t\t<div class=\"elementor-container elementor-column-gap-default\">\n\t\t\t\t\t<div class=\"elementor-column elementor-col-100 elementor-top-column elementor-element elementor-element-e9c9192\" data-id=\"e9c9192\" data-element_type=\"column\">\n\t\t\t<div class=\"elementor-widget-wrap elementor-element-populated\">\n\t\t\t\t\t\t<div class=\"elementor-element elementor-element-18db1a6 elementor-widget elementor-widget-text-editor\" data-id=\"18db1a6\" data-element_type=\"widget\" data-widget_type=\"text-editor.default\">\n\t\t\t\t<div class=\"elementor-widget-container\">\n\t\t\t\t\t\t\t<div class=\"vidseo_wrapper\" style=\"width: 100%;\">\r\n\r\n    \r\n    \r\n        <div class=\"vidseo_vimeo\">\r\n\r\n            <iframe title=\"vimeo-player\" src=\"https:\/\/player.vimeo.com\/video\/733232330\/?\" width=\"100%\" frameborder=\"0\" allowfullscreen><\/iframe>\r\n\r\n        <\/div>\r\n\r\n    \r\n    \r\n    <div class=\"vidseo_collapse\" style=\"\">\r\n        <div class=\"vidseo_btn\" style=\"\">\r\n            P7 \u2013 The Motion to Dismiss, How to Prepare\r\n0:01\r\nWell, Hi, everybody.\r\n0:01\r\nThis is John Jay, and I wanted to go over the actual details of how to respond to a lawsuit to start with.\r\n0:09\r\nNow, I\u2019m not saying everybody should do this all the time if you get sued and maybe you\u2019ll never get s&#8230;        <\/div>\r\n        <div class=\"vidseo_collapse_content\" style=\"\">\r\n            <p>P7 \u2013 The Motion to Dismiss, How to Prepare<br \/>\n0:01<br \/>\nWell, Hi, everybody.<br \/>\n0:01<br \/>\nThis is John Jay, and I wanted to go over the actual details of how to respond to a lawsuit to start with.<br \/>\n0:09<br \/>\nNow, I\u2019m not saying everybody should do this all the time if you get sued and maybe you\u2019ll never get sued. They\u2019d be great.<br \/>\n0:15<br \/>\nThis strategy is used for, for unsecured debt collections. You can also use it for Secure Debt Collections. For example, you can use it for.<br \/>\n0:24<br \/>\nCar loans. Usually a car loan, though.<br \/>\n0:27<br \/>\nThe 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\u2019s how it works. But for a mortgage foreclosure. That\u2019s a judicial foreclosure. You can use this strategy as: Well, it looks. it works really well.<br \/>\n0:44<br \/>\nSo, I\u2019m 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.<br \/>\n1:01<br \/>\nAlright, Sue.<br \/>\n1:08<br \/>\nRight?<br \/>\n1:08<br \/>\nThis is called a motion to dismiss, so this responds to, let\u2019s say, a credit card lawsuit, or a debt collector lawsuit, where or when you file a motion to dismiss, you\u2019re admitting each and every allegation in the complaint. That\u2019s properly before the court. It\u2019s correctly pled.<br \/>\n1:24<br \/>\nYou\u2019re admitting each of those, but you\u2019re saying even if that were all true, the plaintiff doesn\u2019t have the right to sue me, and the court doesn\u2019t have jurisdiction And there\u2019s a certain reason why. So I don\u2019t like to say anything crazy.<br \/>\n1:35<br \/>\nLike, dollars aren\u2019t real, or you know, there\u2019s no money, you know, stuff doesn\u2019t matter. None of that matters. Judges don\u2019t want to hear that, They\u2019ve heard it a lot for years, it doesn\u2019t really have any legal merit.<br \/>\n1:48<br \/>\nWhat does though, is when you criticize the allegations in the complaint, so a great way to criticize them, would be like this. Let\u2019s say somebody sued you said, you breach the contract with me.<br \/>\n1:59<br \/>\nAnd I\u2019ve attached a copy of the contract and the contract that was attached, let\u2019s say has someone else\u2019s name on it, or doesn\u2019t have your signature on it or something like that, OK.<br \/>\n2:12<br \/>\nWell, you would say, All right, well, I had a contract with these people, I admit that, but that\u2019s 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.<br \/>\n2:29<br \/>\nEven if the judge did a bad job and let the complaint move forward and denied the motion, you would, you would always win.<br \/>\n2:37<br \/>\nEven 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.<br \/>\n2:50<br \/>\nSo, here\u2019s what, here\u2019s where we get into this, all right?<br \/>\n2:52<br \/>\nSo, here\u2019s 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\u2019s already a month late, OK? Sometimes you can answer these complaints a month late, even after there\u2019s a default. A lot of times, if you\u2019re, if you\u2019re quick enough, you can get a default reversed.<br \/>\n3:17<br \/>\nNow, I don\u2019t have a motion here for that, but if I were to answer it, let\u2019s say, um, I was going to be late.<br \/>\n3:25<br \/>\nAnd I know I\u2019m 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.<br \/>\n3:35<br \/>\nSo, in addition to what I\u2019m 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\u2019m going to explain to you. So I didn\u2019t put that in here, but just say, you know, that\u2019s what you would do in this case.<br \/>\n3:47<br \/>\nSo what I said is that, first of all, whenever I make an appearance like this for the first time, I\u2019m going to say, it\u2019s by special, limited appearance.<br \/>\n3:54<br \/>\nIn other words, I\u2019m not saying that, I\u2019m not agreeing or consenting that the Court has jurisdiction yet.<br \/>\n3:59<br \/>\nBut I\u2019m going to appear just so we can get reached justice, you know, I want to get the same result. So, I\u2019m saying, I\u2019m 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.<br \/>\n4:13<br \/>\nSo, I\u2019m gonna ask to answer out of time, which means I want to be able to answer late so I need the Court\u2019s permission to do that.<br \/>\n4:20<br \/>\nAnd if there wasn\u2019t entry of default, or default judgement already, I want to ask that. It be set aside, and it\u2019s going to be for these reasons here.<br \/>\n4:30<br \/>\nNow, this doesn\u2019t 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\u2019re gonna have to edit this document.<br \/>\n4:42<br \/>\nThis is what I\u2019m telling, the Court, the courts\u2019 purpose is to further justice and not allow a party to win on a technicality. Even though we see that a lot. Maybe it\u2019s because the person didn\u2019t argue the case well enough. So the court is supposed to make a ruling or it\u2019s inclined to make rulings on the merits of the claims.<br \/>\n4:59<br \/>\nSo, we want, um, we want to tell the court that the defense has merits, so don\u2019t just allow the default to stand.<br \/>\n5:11<br \/>\nPlease let me answer late, because I actually have a pretty good defense and it\u2019s in that furtherance of Justice, OK.<br \/>\n5:17<br \/>\nThe second reason would be that my failure to answer timely was due to excusable neglect, OK.<br \/>\n5:28<br \/>\nThere\u2019s a good excuse, and I might have to say what that is.<br \/>\n5:31<br \/>\nI 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.<br \/>\n5:45<br \/>\nUm, then, I, when I discovered this, I acted with due diligence. Now, sometimes, the facts behind this would be, I never got served.<br \/>\n5:54<br \/>\nUm, and by the way, if that\u2019s the case, you can follow and file a totally different motion, but this will cover it.<br \/>\n6:00<br \/>\nThis. what I\u2019m showing you right here will cover that. But sometimes, you\u2019ll find out about a lawsuit before you get served, or, even if you don\u2019t get serve, you\u2019ll find out.<br \/>\n6:07<br \/>\nBecause attorneys are searching public records for new lawsuits and they\u2019ll send sales letters to the people, the defendants, soliciting them for representation.<br \/>\n6:17<br \/>\nSo that\u2019s a lot of times where you\u2019ll find out that you\u2019ve been sued, OK, without being served yet.<br \/>\n6:22<br \/>\nSo 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\u2019s the cause of being late to answer.<br \/>\n6:37<br \/>\nAnd that you also want to say that, you believe that no substantial prejudice will result to either party, even yourself.<br \/>\n6:44<br \/>\nThe judge is concerned about that when he\u2019s supposed to be anyways.<br \/>\n6:46<br \/>\nAll right, So generally, I sum it all up.<br \/>\n6:50<br \/>\nAnd I just move on. Now, here\u2019s what\u2019s going to happen. Unless I\u2019m, like six months late.<br \/>\n6:55<br \/>\nThe judge is pretty much going to set it aside. I mean, I\u2019ve had some pretty, pretty, I think. Probably the furthest I\u2019ve gone to getting a judgement set aside was like two months.<br \/>\n7:04<br \/>\nAnd 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.<br \/>\n7:13<br \/>\nYou don\u2019t need it, OK?<br \/>\n7:16<br \/>\nYou can see the signature block goes to the next line.<br \/>\n7:19<br \/>\nOf course, you can do you can make it neater. Alright. So again, this is redundant.<br \/>\n7:24<br \/>\nYou need to customize these forms.<br \/>\n7:26<br \/>\nI\u2019m going to show you the most important part of this whole thing though.<br \/>\n7:29<br \/>\nBut I like to appear specially.<br \/>\n7:32<br \/>\nAnd then we go to, here\u2019s the actual motion. Now, I like to say, verified motion.<br \/>\n7:37<br \/>\nAnd the reason why I say verified motion is because, at the bottom, I\u2019m going to say, I, John Smith, they defend it. And verifying that the statements here are made in good faith. And I\u2019m not just trying to cause delay or harass them or cost cost him more money. Which actually, that is not my purpose.<br \/>\n7:56<br \/>\nBut that is what\u2019s going to happen. So just so you\u2019re aware of that. But if you say this in your verification, it\u2019s just a technicality and the judge appreciates that, he\u2019s going to assume you\u2019re not going to do that anyways.<br \/>\n8:08<br \/>\nSo anyways, Um, again, I\u2019m going to say I\u2019m appearing by general, I\u2019m sorry, Not general parents but special appearance.<br \/>\n8:17<br \/>\nAnd then here\u2019s, Here\u2019s my argument. This is what I want to get to.<br \/>\n8:21<br \/>\nI\u2019m 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.<br \/>\n8:33<br \/>\nNow, that\u2019s technical language for saying the Court lacks jurisdiction because the pleating is legally insufficient and the reason why it\u2019s legally insufficient is because the exhibit\u2019s conflict, with the allegations.<br \/>\n8:45<br \/>\nThis is really powerful.<br \/>\n8:49<br \/>\nHere\u2019s what I said, I\u2019m 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.<br \/>\n8:59<br \/>\nI\u2019m 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\u2019s how the Court looks at it. The exhibits attached to the complaint or exhibits upon which the complaint is based.<br \/>\n9:11<br \/>\nYes, we know that these exhibits conflict with the pleating, pretty simple, huh.<br \/>\n9:16<br \/>\nSpecifically, the defendant is not identified in any exhibits as alleged in the complaint. So, this is typically what happens. It\u2019s 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\u2019s not the credit agreement.<br \/>\n9:34<br \/>\nOr 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\u2019s identifying information like name and address.<br \/>\n9:45<br \/>\nBut 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.<br \/>\n9:54<br \/>\nSo, just showing that makes it insufficient. So what you\u2019re 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.<br \/>\n10:08<br \/>\nBecause the one alleged in the complaint pertains to an agreement between the plaintiff and the defendant.<br \/>\n10:13<br \/>\nAnd what they showed an exhibit A was not that.<br \/>\n10:17<br \/>\nNow, what happens if they have an agreement with your signature, and you look at it say, Well, that\u2019s 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?<br \/>\n10:29<br \/>\nThen 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.<br \/>\n10:38<br \/>\nThe copy of the first check, a few months after that.<br \/>\n10:42<br \/>\nWell, I got your signature on there, right.<br \/>\n10:43<br \/>\nIs that binding on you?<br \/>\n10:46<br \/>\nBecause you didn\u2019t authorize that. That\u2019s a forgery. I made a copy of an instrument with your signature on it.<br \/>\n10:51<br \/>\nAnd therefore, even though that appears physically as your signature, it\u2019s legally not your signature because you didn\u2019t authorize it.<br \/>\n11:00<br \/>\nSame thing, if it were a signature stamp, or an image of your signature.<br \/>\n11:05<br \/>\nThe fact that I\u2019m using it without your authorization makes it a forgery.<br \/>\n11:08<br \/>\nSo at the very minimum, you\u2019re not gonna say that in here, but you\u2019re just gonna say, Look, what\u2019s it attaches? Exhibit A or, you know, what appears to be. A hand-written signature is not mine. Now you don\u2019t even have to say that at this point.<br \/>\n11:22<br \/>\nAll you have to say is, that the exhibit is not what was alleged in the complaint, there\u2019s a conflict.<br \/>\n11:29<br \/>\nSo, an exhibit is an allegation and just the written words in the pleating are, those are also allegations.<br \/>\n11:38<br \/>\nThey\u2019re all allegations.<br \/>\n11:39<br \/>\nSo if you have two allegations and their number like 1 through 10 or something, exhibit ABC, and it\u2019s an allegation seven conflicts with exhibit A Your allegations conflict with each other so the Court can\u2019t hear the complaint.<br \/>\n11:52<br \/>\nIt doesn\u2019t have jurisdiction.<br \/>\n11:55<br \/>\nEven admitting everything, OK?<br \/>\n12:00<br \/>\nNow this is why I say because like in the example where, Who knows about the?<br \/>\n12:07<br \/>\nWhat appears to be the contract?<br \/>\n12:09<br \/>\nWhere is there any indication that you ever saw it? Consent consented to it or were notified of its existence or the terms therein?<br \/>\n12:16<br \/>\nThere isn\u2019t any and you wouldn\u2019t get to that anyways but it has to be at least pled in the case or alleged and that\u2019s not in there.<br \/>\n12:23<br \/>\nSo 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\u2019re not binding on you if you\u2019ve 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\u2019re saying here is that your net, you\u2019ve never been made aware of these terms, so this is the first time I\u2019ve ever seen that so it\u2019s not binding on you, OK.<br \/>\n12:50<br \/>\nSo, even though they alleged it in words, the exhibit\u2019s erases that.<br \/>\n12:55<br \/>\nSome states, you\u2019ll have nice memorandum of law. I\u2019m not saying you have to go look it up.<br \/>\n12:58<br \/>\nSome 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\u2019t take jurisdiction.<br \/>\n13:16<br \/>\nAlright, You\u2019re not going to find that in all the states.<br \/>\n13:19<br \/>\nSo, if you want it, like, you could just summarily refer to, generally, the rule and the courts will understand, Even if you don\u2019t cite a rule, the courts will understand what your argument is.<br \/>\n13:30<br \/>\nYou 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\u2019s most rules now. I\u2019m not saying you\u2019re gonna find the case law on that, because in many states, this hasn\u2019t ever been tested in the appeals court. Some States it has, and there\u2019s some nice holdings on this issue, but most of the rules will say what\u2019s alleged in the complaint, if there\u2019s a contract alleged in the complaint, it should be exhibited.<br \/>\n13:57<br \/>\nEven though they exhibited a contract, you\u2019re going to say that is not the contract.<br \/>\n14:03<br \/>\nSo that exhibit is an allegation which conflicts with the other allegations alleging a contract.<br \/>\n14:09<br \/>\nThey can\u2019t get out of that because only you can say that they have no personal knowledge.<br \/>\n14:18<br \/>\nThis is another technicality. We\u2019re not getting who cares about this. It\u2019s not really that important.<br \/>\n14:22<br \/>\nSo, there, we have our verification, OK. And then I\u2019m going to ask for the thing.<br \/>\n14:26<br \/>\nHere\u2019s what I want. I want the case dismissed.<br \/>\n14:31<br \/>\nAnd whatever else the judge decides, OK, here\u2019s what we\u2019ll generally happen now in Fences case.<br \/>\n14:37<br \/>\nHe won on this motion.<br \/>\n14:40<br \/>\nWe had a memorandum of law that had no supporting case law on the rule.<br \/>\n14:45<br \/>\nYou don\u2019t need it, in my opinion.<br \/>\n14:48<br \/>\nIt\u2019s nice if you can have it.<br \/>\n14:50<br \/>\nAnd 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.<br \/>\n15:04<br \/>\nSo 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\u2019s kinda where the cases now, and it took a year to get there.<br \/>\n15:20<br \/>\nJust 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\u2019t invent this case, so then he was able to decide to not participate anymore, and just let him have the case. And so, that\u2019ll, that\u2019ll play out for the rest of the year, and then it\u2019ll have taken almost two years to get a judgement in that case.<br \/>\n15:43<br \/>\nAnd maybe he spent a few hours of his time to learn this, and he\u2019ll he\u2019ll 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.<br \/>\n15:56<br \/>\nAnd the end game is, it\u2019s worthless, because you\u2019re uncollectible anyways.<br \/>\n16:02<br \/>\nNow, I\u2019ll just say something about answering. Let\u2019s say your emotions denied well, you want to follow written answer then. So generally.<br \/>\n16:10<br \/>\nYou go through each numbered allegation or each sequential allegation in the complaint. And you can you can just deny it.<br \/>\n16:16<br \/>\nThat\u2019s all you have to do is just denied even if they say your name is John Smith, and that\u2019s your name, just deny it.<br \/>\n16:21<br \/>\nIt doesn\u2019t matter. You\u2019re not lying.<br \/>\n16:22<br \/>\nYou just deny what that means is when you deny allegations in a civil complaint is your your you\u2019re Keeping the burden of proof where it is OK, the plaintiff has the burden of proof.<br \/>\n16:34<br \/>\nSo when you deny an allegation, well then the plaintiff has to prove it, which sometimes you can and sometimes you can\u2019t make them do it.<br \/>\n16:40<br \/>\nA lot of times you\u2019d be surprised if you push them to having to prove an allegation you that could win your case, even if it\u2019s provable. The plaintiff may not be ready for that.<br \/>\n16:51<br \/>\nSo even if you\u2019re completely wrong and you\u2019re completely liable make improve it. Don\u2019t ever give it up.<br \/>\n16:58<br \/>\nThen, 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\u2019t mentioned that it\u2019s being mailed to the clerk of the court, but you always want to mail to the clerk of the court. So that way it\u2019s 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.<br \/>\n17:28<br \/>\nThen bouncing back to the answer, I just wanted to mention.<br \/>\n17:32<br \/>\nWhen 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\u2019ll just tell you briefly, is because, I mean, we can go on for hours on this.<br \/>\n17:48<br \/>\nBut briefly, if I have to answer a complaint, when I, when I filed the answer, I\u2019m going to I\u2019m going to send discovery questions. Normally they\u2019re called interrogatories, request for production, deposition notices. Those come later sometimes.<br \/>\n18:02<br \/>\nRequest for production of documents, things like that.<br \/>\n18:05<br \/>\nThe reason why I do that is because if the other side wants to do discovery, then I\u2019ve already started discovery first, and then the other side would start discovery second.<br \/>\n18:16<br \/>\nAnd then chances are, I would end up answering their discovery last and they wouldn\u2019t be able to do any more discovery.<br \/>\n18:21<br \/>\nThat, would it be the end of discovery And because I answered last with my final discovery answer, I can ask for summary judgement.<br \/>\n18:31<br \/>\nReally makes it difficult for the plaintiff to ask for summary judgement before you ask for summary judgement.<br \/>\n18:37<br \/>\nSo 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\u2019re doing, OK, there\u2019s a bit of strategy. Sounds like playing chess, OK.<br \/>\n18:51<br \/>\nBut anyways, um, that certifies that you mail that.<br \/>\n18:53<br \/>\nIf you do not include the certificate of service, it has to be dated.<br \/>\n18:58<br \/>\nAnd you only need your initials here. You do not need to sign it.<br \/>\n19:01<br \/>\nAnd anybody can do this. Charlie Brown can do it. Anybody who\u2019s, you know, a competent person, can put his name here and put his initials. Nobody, the court doesn\u2019t care. It\u2019s just that they want somebody to do that, OK?<br \/>\n19:13<br \/>\nNow, 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\u2019s why they do it.<br \/>\n19:30<br \/>\nAnd also, in some jurisdictions, like New York, probably, California.<br \/>\n19:34<br \/>\nalso, 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.<br \/>\n19:44<br \/>\nSo, I\u2019m not going to get into those details, but just be aware that sometimes, if you file this motion, and you don\u2019t include a filing fee or a waiver request for the filing fee, it\u2019ll get sent back to you.<br \/>\n19:55<br \/>\nBut that\u2019s another good reason to mail it to the attorney as well, so that that way, the, the attorney knows you did that.<br \/>\n20:00<br \/>\nAnd 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\u2019re doing lately. In the last few years, I noticed they\u2019re sending the documents back and not \u2026 them. So it makes it look like you\u2019re 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\u2019s a filing fee.<br \/>\n20:22<br \/>\nLots of times when you answer a complaint, there\u2019s going to be a filing fee.<br \/>\n20:26<br \/>\nYou can search on the Internet for what\u2019s called a fee waiver affidavit.<br \/>\n20:30<br \/>\nSo 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.<br \/>\n20:42<br \/>\nAnd so as you\u2019ll see what that, what that is you can look for right now, You\u2019ll find that most on the internet, All right.<br \/>\n20:47<br \/>\nAnd here is an order. Sometimes the judges want you to do this. Sometimes they don\u2019t. This is like being polite to the judge.<br \/>\n20:53<br \/>\nThis is like having good manners You write this up, and the judge sees it, and he says OK, Well, this guy, you know, he\u2019s not a jerk He\u2019s he\u2019s 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\u2019t 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.<br \/>\n21:21<br \/>\nOK, you can do it that way or some judges just do it anyway, So I\u2019ll just write on top of your order or they\u2019ll get their own, They\u2019ll get their assistant to write up something.<br \/>\n21:28<br \/>\nSometimes they\u2019ll order the other attorney to write up something, So, it just depends.<br \/>\n21:31<br \/>\nAnd 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?<br \/>\n21:39<br \/>\nThat\u2019s the easy side of it.<br \/>\n21:42<br \/>\nThis should not take you if you did it.<br \/>\n21:43<br \/>\nIf you did one for the first time ever, I don\u2019t think it would take you more than an hour to do this, I mean, really, 15 minutes.<br \/>\n21:50<br \/>\nBut, um, this is a great way to stop a civil court proceeding.<br \/>\n21:57<br \/>\nIf you file this, the moving Party is supposed to set a here, a set of hearing.<br \/>\n22:01<br \/>\nYou can pretend to set a hearing where you\u2019re required to show a hearing date, You can just make one up or not.<br \/>\n22:08<br \/>\nAnd what will happen is the opposing attorney will see that you didn\u2019t set a hearing on your motion, which he knows you\u2019re required to do, and because he wants to move the case forward, he\u2019ll set the hearing and then he\u2019s supposed to contact you and co-ordinate the hearing date.<br \/>\n22:21<br \/>\nBut they usually don\u2019t, because you don\u2019t have an attorney, which is not fair, but that\u2019s how they do it.<br \/>\n22:25<br \/>\nSo, Or they\u2019ll claim they did and they didn\u2019t.<br \/>\n22:28<br \/>\nSo let the attorney set a hearing and then notify you as to the hearing date.<br \/>\n22:32<br \/>\nIf the hearing date is, yeah. Like, have a problem with it or something like conflicts with something.<br \/>\n22:36<br \/>\nYou 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\u2019t 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\u2019s very strict rule to co-ordinate the time in advance, what the other party.<br \/>\n22:57<br \/>\nSo just keep that in mind. So, let the attorney set a hearing on this, because sometimes they\u2019ll forget.<br \/>\n23:02<br \/>\nAnd it\u2019ll just sit there for weeks and weeks and weeks because they\u2019re used to other attorneys, you know, setting hearings on their own motions.<br \/>\n23:10<br \/>\nBut just be aware, you know, watch the case. I would check in if it\u2019s 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\u2019ll set a hearing and not tell you until the last day so it\u2019s kind of nice to know when that\u2019s going on.<br \/>\n23:22<br \/>\nUm, then if you\u2019re 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\u2019s all set up.<br \/>\n23:34<br \/>\nYou already understand about the wage issue. That\u2019s a that\u2019s a thing. You already got that covered.<br \/>\n23:38<br \/>\nReal 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\u2019t matter if they get a judgement in the end, because most of the time they do. It doesn\u2019t matter if you\u2019re right or anything. That\u2019s 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\u2019s gonna give him that judgement. Then some people ask me, well, why even bother responding well, you should respond.<br \/>\n24:04<br \/>\nI mean, sometimes you\u2019ll win, And then sometimes the attorney will give up. Sometimes they\u2019ll try again. They\u2019ll get a new law firm, so you know why why not?<br \/>\n24:11<br \/>\nWhy not do it learn how to do it the confident, and, you know, if they get their judgement, well, then it\u2019s going to cost them $10000 to get nothing.<br \/>\n24:20<br \/>\nWhereas if you don\u2019t respond, then it\u2019ll cost them maybe $500 to put a lien on your house, OK? So, it\u2019s better to respond.<br \/>\n24:27<br \/>\nPush the time period back, and give yourself a chance to re-organize your property right, so they can\u2019t attach anything.<br \/>\n24:37<br \/>\nSo, I hope that wasn\u2019t too much information, asked for the form. If you don\u2019t see it connected to this video, or asked for the latest form, chances are, we may have something.<br \/>\n24:47<br \/>\nBut, I\u2019ve been using that particular strategy for at least, I don\u2019t know, 12 to 15 years, virtually unchanged. You\u2019re going to be just fine with that.<br \/>\n24:58<br \/>\nThanks for watching.<\/p>\n        <\/div>\r\n    <\/div>\r\n\r\n    \r\n<\/div>\t\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/section>\n\t\t\t\t<section class=\"elementor-section elementor-top-section elementor-element elementor-element-eeb66dc elementor-section-boxed elementor-section-height-default elementor-section-height-default\" data-id=\"eeb66dc\" data-element_type=\"section\">\n\t\t\t\t\t\t<div class=\"elementor-container elementor-column-gap-default\">\n\t\t\t\t\t<div class=\"elementor-column elementor-col-100 elementor-top-column elementor-element elementor-element-d3e6f28\" data-id=\"d3e6f28\" data-element_type=\"column\">\n\t\t\t<div class=\"elementor-widget-wrap elementor-element-populated\">\n\t\t\t\t\t\t<div class=\"elementor-element elementor-element-86c9417 elementor-widget elementor-widget-spacer\" data-id=\"86c9417\" data-element_type=\"widget\" data-widget_type=\"spacer.default\">\n\t\t\t\t<div class=\"elementor-widget-container\">\n\t\t\t\t\t<div class=\"elementor-spacer\">\n\t\t\t<div class=\"elementor-spacer-inner\"><\/div>\n\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/section>\n\t\t\t\t<section class=\"elementor-section elementor-top-section elementor-element elementor-element-346468c elementor-section-boxed elementor-section-height-default elementor-section-height-default\" data-id=\"346468c\" data-element_type=\"section\">\n\t\t\t\t\t\t<div class=\"elementor-container elementor-column-gap-default\">\n\t\t\t\t\t<div class=\"elementor-column elementor-col-100 elementor-top-column elementor-element elementor-element-9de4ce4\" data-id=\"9de4ce4\" data-element_type=\"column\">\n\t\t\t<div class=\"elementor-widget-wrap elementor-element-populated\">\n\t\t\t\t\t\t<div class=\"elementor-element elementor-element-63237ed elementor-widget elementor-widget-text-editor\" data-id=\"63237ed\" data-element_type=\"widget\" data-widget_type=\"text-editor.default\">\n\t\t\t\t<div class=\"elementor-widget-container\">\n\t\t\t\t\t\t\t<p><strong>Summary<\/strong><\/p><p style=\"padding-left: 40px;\">1. John Jay explains how to prepare a Motion to Dismiss in response to a lawsuit, specifically a credit card lawsuit or debt collector lawsuit. <br \/>2. He suggests criticizing the allegations in the complaint, such as when a contract is attached that doesn&#8217;t have your signature or has someone else&#8217;s name on it.<br \/>3. Sometimes, it&#8217;s possible to answer these complaints a month late, even after a default. In such cases, John recommends asking the court to set aside or vacate the default.<br \/>4. When making an appearance for the first time, he suggests specifying it as a special, limited appearance, indicating that you&#8217;re not consenting to the court&#8217;s jurisdiction yet.<br \/>5. He warns that the prepared document is a template and needs to be edited to fit the specific circumstances of the lawsuit.<br \/>6. John highlights the importance of a written answer to a lawsuit. When you deny an allegation, the plaintiff must prove it, and sometimes, forcing them to prove an allegation can win the case.<br \/>7. Along with the written answer, he suggests sending discovery, which involves asking questions that require the plaintiff to prove their case. This strategy, he says, helps control the proceedings.<br \/>8. To conclude the motion, he advises to ask for the case to be dismissed because the complaint doesn&#8217;t state a valid cause of action or claim upon which relief can be granted. This essentially means the court lacks jurisdiction.<br \/>9. If the motion is dismissed, one must follow up with a written answer and initiate discovery. Starting discovery first can control the timelines of the proceedings.<br \/>10. He cautions about various tactics employed by the opposition, like requiring notarization of documents to frustrate the process, or sending back documents without docketing them, which can create a false impression of being late. He recommends being diligent and persistent in these circumstances.<\/p>\t\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/section>\n\t\t\t\t<section class=\"elementor-section elementor-top-section elementor-element elementor-element-f5a40cc elementor-section-boxed elementor-section-height-default elementor-section-height-default\" data-id=\"f5a40cc\" data-element_type=\"section\">\n\t\t\t\t\t\t<div class=\"elementor-container elementor-column-gap-default\">\n\t\t\t\t\t<div class=\"elementor-column elementor-col-100 elementor-top-column elementor-element elementor-element-146a864\" data-id=\"146a864\" data-element_type=\"column\">\n\t\t\t<div class=\"elementor-widget-wrap elementor-element-populated\">\n\t\t\t\t\t\t\t<\/div>\n\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/section>\n\t\t\t\t<\/div>\n\t\t","protected":false},"excerpt":{"rendered":"<p>P7 &#8211; The Motion to Dismiss, How to Prepare<\/p>\n","protected":false},"author":131,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"_uf_show_specific_survey":0,"_uf_disable_surveys":false,"footnotes":""},"categories":[124],"tags":[],"_links":{"self":[{"href":"https:\/\/privacyfight.io\/wp-json\/wp\/v2\/posts\/10332"}],"collection":[{"href":"https:\/\/privacyfight.io\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/privacyfight.io\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/privacyfight.io\/wp-json\/wp\/v2\/users\/131"}],"replies":[{"embeddable":true,"href":"https:\/\/privacyfight.io\/wp-json\/wp\/v2\/comments?post=10332"}],"version-history":[{"count":6,"href":"https:\/\/privacyfight.io\/wp-json\/wp\/v2\/posts\/10332\/revisions"}],"predecessor-version":[{"id":24905,"href":"https:\/\/privacyfight.io\/wp-json\/wp\/v2\/posts\/10332\/revisions\/24905"}],"wp:attachment":[{"href":"https:\/\/privacyfight.io\/wp-json\/wp\/v2\/media?parent=10332"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/privacyfight.io\/wp-json\/wp\/v2\/categories?post=10332"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/privacyfight.io\/wp-json\/wp\/v2\/tags?post=10332"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}