[hannah]

Originally Posted by IC Anonymous

I went to the court and visited the Pro Se atty. She was interested in my case, but was perplexed at the idea of a motion to strike the affidavit of truth. She made a copy of my case file to do some research of her own, and upon looking at the information enclosed, she was convinced that the atty for the plaintiff was only trying to get a default judgment.

I am going to try filing a motion to dismiss, and change gears. I did find that the affidavit of fact falls under self serving hearsay and can be struck from the record - but I'll play that card if the motion to dismiss is challenged.

I am quite positive this is a collection atty trying to get at low lying fruit, and won't follow through if taken to task. However, I want to be as proactive as possible, and not wait for the trial date to see if my instincts are correct.

I am looking for some information on a motion to dismiss. Who, what, when, where, how and why.

Thanks again y'all!

File the motion to strike at the same time because if your MTD is not granted, you will still need to strike the affidavit.

[IC Anonymous]

Here's my motion to dismiss. I decided to go with this instead of the Motion to Strike, since the only thing holding this claim together is the Affidavit of Facts. Please let me know if I am on the right track here.

Anon, being duly sworn, appearing Pro Se, hereby deposes and says:

1. History of case: Plaintiff improperly served summons and complaint in August of 2006.
2. Defendant was alerted of pending litigation and filed an Order to Show cause, to file a late answer.
3. Defendant filed a general denial to prevent a default judgment.
4. At pre trial conference no evidence of a valid contract was provided by Plaintiff when asked by Defendant, and in spite of this a court date was placed on the calendar for December 20, 2007.
5. Defendent was able to aquire the summons and complaint at the pre trial conference, since summons and complaint was never received by Defendent due to improper service.
6. Upon reviewing summons and complaint Defendant has determined Plaintiff has no claim to the action stated.
7. This motion to dismiss has not been requested previously
8. Plaintiff's summons and complaint fails to state a claim upon which relief can be granted.
9. The affidavit of facts (attached "Item A") is self serving hearsay under the rules of evidence. Currie vs Sprague 138, App Div 900 122 NY Sup 1042 (1st Dept) Aff'd 199 NY 566 93 NE 1110 (1910)
10. Plaintiff fails to provide further support demonstrating mailing of the account or advance alternative proof showing the accounts was received (Morrison Cohen Singer & Weinstein, LLP v. Brophy, 19 A.D.3d 161, 161-162, 798 N.Y.S.2d 379 [1st Dept.2005]
11. Proof statements were mailed are necessary to support "presumption of receipt" and finding a failure to protest; Bracken & Margolin, LLP v. Schambra, 270 A.D.2d 221, 703 N.Y.S.2d 520 [2nd Dept.2000] acknowledgment of debt showed receipt).
12. Other elements of this cause of action the lack of a protest and the failure to pay must also be supported (see, as to elements, 1 N.Y. Jur.2d Accounts and Accounting SS 27, Pleadings [2005])

Wherefore, the undersigned respectfully requests the within motion be granted.

[drivel]

Originally Posted by IC Anonymous

Here's my motion to dismiss. I decided to go with this instead of the Motion to Strike, since the only thing holding this claim together is the Affidavit of Facts. Please let me know if I am on the right track here.

Anon, being duly sworn, appearing Pro Se, hereby deposes and says:

1. History of case: Plaintiff improperly served summons and complaint in August of 2006.
2. Defendant was alerted of pending litigation and filed an Order to Show cause, to file a late answer.
3. Defendant filed a general denial to prevent a default judgment.
4. At pre trial conference no evidence of a valid contract was provided by Plaintiff when asked by Defendant, and in spite of this a court date was placed on the calendar for December 20, 2007.
5. Defendent was able to aquire the summons and complaint at the pre trial conference, since summons and complaint was never received by Defendent due to improper service.
6. Upon reviewing summons and complaint Defendant has determined Plaintiff has no claim to the action stated.
Really, and why is that?

7. This motion to dismiss has not been requested previously
8. Plaintiff's summons and complaint fails to state a claim upon which relief can be granted.

That's fantastic, but you better tell the court why that is. What elements to the cause of action are missing?
9. The affidavit of facts (attached "Item A") is self serving hearsay under the rules of evidence. Currie vs Sprague 138, App Div 900 122 NY Sup 1042 (1st Dept) Aff'd 199 NY 566 93 NE 1110 (1910)

I think you may want to review what an affidavit of facts is and also what constitutes hearsay.

10. Plaintiff fails to provide further support demonstrating mailing of the account or advance alternative proof showing the accounts was received (Morrison Cohen Singer & Weinstein, LLP v. Brophy, 19 A.D.3d 161, 161-162, 798 N.Y.S.2d 379 [1st Dept.2005]

Huh? Did you serve a discovery demand?

11. Proof statements were mailed are necessary to support "presumption of receipt" and finding a failure to protest; Bracken & Margolin, LLP v. Schambra, 270 A.D.2d 221, 703 N.Y.S.2d 520 [2nd Dept.2000] acknowledgment of debt showed receipt).

12. Other elements of this cause of action the lack of a protest and the failure to pay must also be supported (see, as to elements, 1 N.Y. Jur.2d Accounts and Accounting SS 27, Pleadings [2005])

NY Jur is an enclylopedia, not actual authority.

Wherefore, the undersigned respectfully requests the within motion be granted.

I'd go back to the drawing board.

[kaxmaII3]

Or get a competent, non-sarcastic opinion.

[tonybologna]

Please Drivel, don't hurt him!

[IC Anonymous]

Originally Posted by drivel

I'd go back to the drawing board.

Thanks, since this is my first attempt ever at filing a motion, I appreciate the response.

Just to reiterate the situation. There was a summons and complaint sewer served to me and within the summons and complaint the only piece of testimony is an affidavit of facts which stated the agent of plaintiff mailed me statements and that I didn't respond to or protest.

My contention is I never received any statements from plaintiff, and deny any contractual relationship with plaintiff. Plaintiff has no supporting evidence for their claim, so how can they have any claim to initiate?

In fact, during the pretrial conference I asked if there was proof of a valid contract, and the lawyer for plaintiff didn't have any information concerning it.

What should a motion to dismiss look like in such an instance?

I looked up self serving hearsay and I thought the gist of that type of testimony was what the affidavit of facts mirrored. --- The claim is I received statements and didn't protest and the affidavit of facts states the same by the plaintiff's agent. Isn't that self serving hearsay?

[Enigma]

Originally Posted by kaxmaII3

Or get a competent, non-sarcastic opinion.

Drivel's response is on point and accurate.

If that motion is filed the way it is written, it will be denied.

Drivel knows what he is talking about.

[Hedwig]

Yes, he does. And the poster will do well to heed his advice.

[IC Anonymous]

Originally Posted by Enigma

Drivel's response is on point and accurate.

If that motion is filed the way it is written, it will be denied.

Drivel knows what he is talking about.

Thanks, since this is my first attempt ever at filing a motion, I appreciate the response.

Just to reiterate the situation. There was a summons and complaint sewer served to me and within the summons and complaint the only piece of testimony is an affidavit of facts which stated the agent of plaintiff mailed me statements and that I didn't respond to or protest.

My contention is I never received any statements from plaintiff, and deny any contractual relationship with plaintiff. Plaintiff has no supporting evidence for their claim, so how can they have any claim to initiate?

In fact, during the pretrial conference I asked if there was proof of a valid contract, and the lawyer for plaintiff didn't have any information concerning it.

What should a motion to dismiss look like in such an instance?

I looked up self serving hearsay and I thought the gist of that type of testimony was what the affidavit of facts mirrored. --- The claim is I received statements and didn't protest and the affidavit of facts states the same by the plaintiff's agent. Isn't that self serving hearsay?

[drivel]

Originally Posted by kaxmaII3

Or get a competent, non-sarcastic opinion.

We're waiting KaxmaII3, enlighten us.

IC: Simple motion to dismiss based on the jurisdictional defect. Also find out where your statue of limitations is You don't want a dismissal and time for them to file again if the statute is about to lapse.

Wait: You're going to have to amend your answer to include the lack of personal jurisdiction as an affirmative defense first.

So how did you find out about the lawsuit. You need to make sure you were'nt served properly.

[IC Anonymous]

Originally Posted by drivel

We're waiting KaxmaII3, enlighten us.

IC: Simple motion to dismiss based on the jurisdictional defect. Also find out where your statue of limitations is You don't want a dismissal and time for them to file again if the statute is about to lapse.

Wait: You're going to have to amend your answer to include the lack of personal jurisdiction as an affirmative defense first.

So how did you find out about the lawsuit. You need to make sure you weren't served properly.

"Simple motion to dismiss", is obviously in the eye of the beholder. I had a feeling the motion I posted was insufficient, but I had no idea just how much it really is. Where can I find a sample of this simple motion you are referring to?


Is the jurisdictional defect you are referring to the improper service?

How do I amend my answer? Would that happen in concert with the motion?

I found out about the lawsuit when I was at the court building ,for another case, and looking in the computer under my name. It was out of curiosity. They would have received a default had I not stumbled across it.

The affidavit of service states they taped it to the door of my building - I live in a 6 family building and know every tenant, so for them not to pass it along to me is impossible. Plus the process server stated they rang my bell at time when either I or my wife would have been present, so it's a farce.

[kaxmaII3]

"We're waiting KaxmaII3, enlighten us."

OK, I apologize.

Trust the collector(s) on the board.

I stand corrected.

[jlynn]

Originally Posted by kaxmaII3

"
Trust the collector(s) on the board.

I stand corrected.

That's kind of unfair don't you think? Review Drivel's posts. He does not give wrong information. He either gives correct information, or he gives no information...

[centex]

Originally Posted by kaxmaII3

"We're waiting KaxmaII3, enlighten us."

OK, I apologize.

Trust the collector(s) on the board.

I stand corrected.

Whether one is in the collections field or not does not speak to whether they may properly dissect a motion and prevent someone from having egg on their face.

And, the expectation remains...please enlighten us with your wisdom on the subject. Given your comment, you obviously do not trust drivel or enigma on the subject, and so I am equally certain you would not have liked my response. So please...give us your best rah-rah parroted from elsewhere.

[IC Anonymous]

Originally Posted by centex

Whether one is in the collections field or not does not speak to whether they may properly dissect a motion and prevent someone from having egg on their face.

And, the expectation remains...please enlighten us with your wisdom on the subject. Given your comment, you obviously do not trust drivel or enigma on the subject, and so I am equally certain you would not have liked my response. So please...give us your best rah-rah parroted from elsewhere.

Yikes kaxmaII3!

Stop trying to "help" me!

I have questions about motion practice and no one is answering - they're responding to your ignorant comments!

Originally Posted by drivel View Post
We're waiting KaxmaII3, enlighten us.

IC: Simple motion to dismiss based on the jurisdictional defect. Also find out where your statue of limitations is You don't want a dismissal and time for them to file again if the statute is about to lapse.

Wait: You're going to have to amend your answer to include the lack of personal jurisdiction as an affirmative defense first.

So how did you find out about the lawsuit. You need to make sure you weren't served properly.

"Simple motion to dismiss", is obviously in the eye of the beholder. I had a feeling the motion I posted was insufficient, but I had no idea just how much it really is. Where can I find a sample of this simple motion you are referring to?


Is the jurisdictional defect you are referring to the improper service?

How do I amend my answer? Would that happen in concert with the motion?

I found out about the lawsuit when I was at the court building ,for another case, and looking in the computer under my name. It was out of curiosity. They would have received a default had I not stumbled across it.

The affidavit of service states they taped it to the door of my building - I live in a 6 family building and know every tenant, so for them not to pass it along to me is impossible. Plus the process server stated they rang my bell at time when either I or my wife would have been present, so it's a farce.

[kaxmaII3]

Just an observation, was all....

no harm intended, I am sure.....

I'll just be quiet and submissive, as is expected.

Or not say anything at all, which is expected and totally non-controversial....



have a nice day, all....

remember, collectors are your FRIENDS.....

[kaxmaII3]

ETA: I'm outa here, sure you will be glad about that...this is obviously no longer a CONSUMER board.....that's why I and others have left, and rarely post anymore here.