Look at the summons and read your complaint. You need to ask yourself the following questions:

• • Does your state require the written instrument to be attached to the complaint? This means the contract that they are suing you for. If so, is it attached? Find out by checking your local court rules of trial procedure:

  For instance, I am from Indiana and here is mine. It is under ‘Written Instruments Rule 9.2’:

  (A) When instrument or copy must be filed. When any pleading allowed by these rules is founded on a written instrument, the original, or a copy thereof, must be included in or filed with the pleading. Such instrument, whether copied in the pleadings or not, shall be taken as part of the record.

  
  

  This means that it is required. If the plaintiff is suing for breach of contract, they must attach the contract that is being claimed with the complaint.

  If it is required but it is not attached, you can file a motion to dismiss because the plaintiff failed to comply with your trial rule. I would file a motion to dismiss for failure to comply with Trial Rule 9.2 (INDIANA)

  Motion to dismiss for failure to comply with Indiana Trial Rule 9.2. Defendant asks this court to dismiss this complaint because Plaintiff failed to comply with Indiana Trial Rule 9.2. Wherefore, Defendant asks this court to dismiss this case with prejudice and for all other proper relief.



• Is this debt time barred, meaning the time has run out for the plaintiff to use the courts to sue you? Another meaning would be the statute of limitations.

  Each state has their own statute of limitations for collecting a debt. I live in Indiana so my statute of limitations for collecting a debt is six years on an open contract and six years on a written contract. If I defaulted (the last date that I made a payment to this account) from the year 2003 and earlier, all of the lawsuits that come at me are time barred. The statute of limitations has run out for the plaintiff to legally collect their money.

  Therefore, if the debt is time barred i would file a motion to dismiss on those grounds alone. Get a copy of your credit report, make a copy and staple it to your motion to dismiss.

  Motion to dismiss case pursuant to Indiana Code 34-11-2-9. Defendant asks this court to dismiss this case because Plaintiff is time barred pursuant to Indiana Code 34-11-2-9 which states 6 years to collect debts. Defendant defaulted on this account in January 2002 which leaves Plaintiff time barred to collect. Wherefore, Defendant prays that this court will dismiss this case with prejudice and for all other proper relief.



• Is the assignment attached to the complaint? Should it be according to your trial rules?

  If so, you can file a motion to dismiss for failure to name the real party in interest.



• If none of the above applies to you, is there an affidavit attached to the complaint? Is the affidavit signed by someone who is employed by the original creditor? Is it signed by someone who is employed by the junk debt buyer?

  An affidavit is sometimes grounds enough alone if uncontested to get a judgment.

Hearsay – Look under your rules of evidence. You may be able to file a motion to strike the affidavit but only if the contract or assignment is not required to be attached to complaint and the affidavit is from the junk debt buyer’s employee. After reviewing your local court rules, if this is considered hearsay, you might want to file a motion to strike.

Additional Information

• Mary

  “I have been using the Defendant’s Package to fight my credit card lawsuit. Great stuff….thank you!
  
  The Plaintiff (LVNV) never paid the arbitration fee or provided dates for an arbitration hearing (all cases in Oregon go to arbitration prior to trial). Because of this, the court sent the Plaintiff and myself a notice that the case would be dismissed on 4/26/10. The court is back logged, so the case hasn’t been officially dismissed; it is still open, pending dismissal.
  
  Just today- from the Plaintiff- I received a GENERAL JUDGMENT OF DISMISSAL WITHOUT PREJUDICE. In it, it says that ‘It is hereby ordered, adjudged and decreed that the within entitled matter be and the same is, hereby dismissed without prejudice and without costs to either party’. The Plaintiff sent this to me asking me to file it.
  
  My question is this, is this a trick?! Is this in my best interest to file this?
  
  If I don’t file anything, the court will be dismissing the case (also without prejudice).
  
  Any insight or feedback you can give would be very appreciated.
  
  Thank you,
  
  Melanie”




• Steven

  “Hi,
  
  I ran across this website today, and i had a question.. if i have been served, signed thier stupid little paper admitting that im the person that they are trying to sue, and have started making monthly payments on some OUTRAGEOUS amount that is MUCH higher then my capital one credit card was for. Would i still be able to use your product? would i be served again if i stopped paying them, and then go through the process that your describing or would they be able to go ahead and try to freeze my bank account and garnish my wages? i would LOVE to stop paying for this crap. please let me know asap. thank you!”