Motion To Dismiss Credit Card Lawsuit

As you review case law on the topic of breach of contract, you will realize that a motion to dismiss can a great tool, but is not your best tool in most collection cases. You should recognize that the banks have been suing people for years under the same banking system of rules and civil procedures. Actually, many of their law firms have been instrumental in writing the rules of court regarding how these cases are processed by the court.

The essential thing to know about the rules for dismissal in general, is that on considering the motion to dismiss, the court must suppose that all allegations in the complaint are true. Then if the plaintiffs allegations are not adequate enough to state a cause of action, the motion can be granted. You must realize that banks and their attorneys have not only been using the courts under the same system of rules and civil procedures for almost a century (since 1913), but many of them assisted with it. You can expect that the complaint templates they are now using withstood many thousands of tests, just like the motion to dismiss you might prepare to file. In other words, there complaint is correct, accurate and written in a calculated form. Your likelihood of having it dismissed in this type of motion is very small. Your only advantage is probably delay.

What you should know is the court will have a hearing on the motion in lieu of you having to file an answer, and after it is denied you will have another ten or twenty days to file your answer. You will know that the answer must be filed because the judge will rule on the motion at a hearing.

The judge is requred at a hearing on a motion to dismiss to stay with in the confines of the "four corners" of the complaint and assume that everything the plaintiffs complaint says is the truth (for the limited purpose of this motion). Then, if any essential elements of the complaint's cause(s) of action are missing, the judge may dismiss part or all of the complaint (usually giving the plaintiff a reasonable time to amend the complaint to cure its deficiency). The judge will not allow the plaintiff to bring in witnesses, present documents, or otherwise add anything to what his complaint states on its face. Such hearings are non-evidentiary. The hearing usually takes places in about thirty to sixty days giving you additional time to delay. There is the chance that it will be granted but don't expect it.

Your chance of having a motion to dismiss granted is not very good for a credit card lawsuit. Your chances are much greater for a non-standard type of lawsuit, like your neighbor suing you in his own behalf with out a lawyer in small claims court over some ridiculous argument. Chances are he used his own form or list of statements that he hand wrote at the clerk's desk when he filed it and paid the filing fee. He most likely missed something, but don't anticipate the attorneys representing the largest banking institutions in the world to "miss something".

Attorneys for these large banking institutions are known for standing in the same place for hours obtaining a series of default judgments. And for those defendants who bother to show up, the judge just asks them to step aside and make payment arrangements then still enters a judgment against them. The only times those complaints are tested is when an attorney is retained for the defense, and because most believe there is no defense except whether or not the complaint was sufficiently plead, they will try a motion to dismiss. That is the reason why the complaints now used by the banks are probably impenetrable, if they use the same standard forms.

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