When filing a motion to dismiss against a collection agency regarding them not complying with a court rule, remember: Inexperienced people are the ones who will say “Make sure you put ‘with prejudice’ in your motion and not ‘without prejudice’ because then they can’t sue you again.”

If you are filing your very first motion to dismiss against a collection agency for failure to comply with a court rule, and you put: “Wherefore, the defendant, prays … and that this complaint be dismissed with prejudice”, it’s unlikely that the judge will grant this.

Here you are telling the judge that the plaintiff failed to comply with a specific court rule and you want it dismissed with prejudice. However, if you had researched your own court rules and read them, you would have discovered that almost every state allows the plaintiff 30 days to amend their original complaint to comply with the rule you said they did not comply with. Therefore, the motion you sent off to the judge will be dismissed without prejudice to give the plaintiff 30 days to amend.

The judge will look at this and say: “The plaintiff failed to attach the contract so now I’ll give him 30 days to do so”. This means they will amend the complaint so you won’t get a dismissal with prejudice. If you just get a dismissal without prejudice in the mail and you don’t see anything about the judge giving the plaintiff time to amend, that is a given.

• Without prejudice means that they can re-sue you for the same debt. All they need to do is amend their complaint to comply and the lawsuit is back on.


• With Prejudice means it is over and they can never sue you again for that debt.

So read your court rules and learn how to ask for the proper dismissal. You should ask the court to order the plaintiff to comply with that court rule by amending their complaint within 30 days and for dismissal with prejudice for failure to do so. Now not only are you giving the plaintiff those 30 days to comply (what they are entitled too anyway), you are also requesting that if they don’t comply that the court dismiss the case with prejudice. If the judge grants that and they fail to comply, then it is over.

You could also ask for a dismissal without prejudice and get it, but they can re-sue you by amending. So, if they don’t amend, why not ask for a dismissal with prejudice? Remember: how you word things to the judge really does matter. You need to make yourself clear on what it is you are requesting from the court.

Additional Information

• Tina

  “I am in that situation with a scummy debt collector that bought the debt from another who bought it from another who bought it from Chase. The 3rd collector filed a suit immediately after buying it. So I contacted an attorney and he looked it over and said this is clear case of champerty. I had no clue what that meant and he said it means when a debt is bought for the sole purpose of a lawsuit which is illegal in PA. So he is filing a writ to have the suit dismissed due to champerty. So my understanding from what you posted is IF infact they dismiss they can’t sue me again. But can’t they sell it to another collector who can go through the same process and it just starts over again?”

  
  

  Admin

  “It must be dismissed with prejudice in order not to sue you again. If they sell it to another Junk Debt Buyer keep the first dismissal and show it to the judge that the case was already dismissed with prejudice.”

  
  

  Tina

  “My Attorney is asking that the case be dismissed with prejudice due to Champerty. It is against the law in the state of PA. You can’t buy a debt in order to sue someone and that is what they did according to all documentation they provided in the summons. So we shall see what happens next.
  Oh and something really odd starting happening next week. The many collectors don’t have my cell but they got my work number and call it and somehow they got my spouses cell. Well last week he started getting calls from a totally different debt collector than any prior or the one suing. My Attorney filed with the court Jan 9th and so my husband said could they have just sold it instead and withdrawn the case because they knew they would lose so might as well sell it yet again and make something off it? So odd this entire process.”




• Cricket

  “I just received a dismissal WITH Prejudice from the PA courts. Discover tried to sue me for $19K. So now it appears from what you state above – they can never sue me again. My question is – what actually happens to the “alleged” debt of $19K? Does it go away and what is reported on my Credit Report in this case?”

  
  

  Admin

  “You are correct you cannot be sued for this debt again it has been dismissed. If you were to be sued again you would simply show the judge the first Dismissal with Prejudice. There shouldn’t be anything in regards to this debt on your credit report unless the Original Creditor is reporting it. If you were sued by a Junk Debt Buyer in regards to this case, and it was dismissed with prejudice as you state, well, they cannot prove to the courts they own the debt how can they prove it to the Credit Report Agencies? If they are reporting it, simplymake a copy of the dismissal and send it to that CRA.”




• Mike

  “I have a case where my wife was sued in PA by a debt collection law firm acquired the debt from Chase, who acquired the original creditor, Bank One, as part of a merger. The case was dismissed with prejudice but still shows up under the original creditor on my wife’s credit report. We disputed the claim with the original creditor through the CRA, & much to my surprise, they actually produced the original signed agreement. However, that wasn’t the point of contention in the case. The point of contention was that the balance on the card was not created by my wife, and because the plaintiff couldn’t establish that, their case was dismissed with prejudice. I explained that in my dispute, but the original creditor ignored that in their response. Because the original creditor is showing this as a bad debt, we want to have this removed from her report for sure. Can we do that, and if so, how?”




• suedbychas

  “I to have been sued by Chase. We went to court and it was dismissed with prejudice. I reveiwed my credit reports and the OC and junk debt buyer are still reporting this debt. I contacted the CRA and the junk debt buyer validated the debt. How do I get the OC and JDB removed from my credit report. I am getting completely fed up and am thinking of filing a claim against the JDB under TILA and FDCPA viloations. Any suggestions would be appreciated.”