If you are sued for a debt, what would you do? There are so many resources online that teach you the first step – file an answer to the summons and complaint. But what do you do after that? How do you ask the judge to throw out the case or take other action? The answer to this question is to file a motion.
What is a Motion?
Simply put, a motion is a request that the judge take a specific action. Federal court rules state: “A request for a court order must be made by motion. The motion must:
(A) be in writing unless made during a hearing or trial;
(B) state with particularity the grounds for seeking the order; and
(C) state the relief sought.”
Your state will have its own court rules that define a motion and explain how a request for a court order is made, but it will likely generally follow the rule above.
In other words, if you want the judge to order something in your case, you need to make a motion and ask the judge to order that thing.
How Do I Make a Motion?
Motions are usually written, but you can make an oral motion if you are in court in front of the judge. For oral motions, you simply ask the judge if you may make a motion. Then you ask the judge what you want the judge to order and why you think the judge should enter such an order. It is helpful to have documents or other evidence to support your oral motion, although it isn’t necessary.
For written motions, you should use a motion form. You can find motion forms as part of our forms package here. On the motion form, you should use the following framework to make your motion:
- Tell the court what you want the order to be. For example, “Defendant requests that the court dismiss this case.”
- List all the facts of your case. For the facts, you want to make them just that – facts – not opinions. After each fact, you should cite to an exhibit and attach it to your motion. For example, on a motion to dismiss under the statute of limitations, you might say, “Plaintiff alleges the parties entered into a contract in 2011. See Complaint, attached as Exhibit 1. Plaintiff filed the lawsuit in 2018. See Complaint, attached as Exhibit 1.”
- Tell the court what the law is that justifies your request. For example, you might say “Under [insert the state law that gives the statute of limitations on a debt], the statute of limitations on a debt is [6] years. If a lawsuit for a debt is filed beyond that timeline, the court must dismiss the case.”
- Apply the law to the facts. For our example motion, it would look something like this:
“Plaintiff filed this lawsuit in 2018, seven years after the parties entered into the contract. The statute of limitations on a debt like this is only six years under the state statute, so this claim is beyond the statute of limitations. Since this claim is beyond the statute of limitations, the court should dismiss the claim. Defendant therefore requests that the court enter an order dismissing this case.”
What Kinds of Motions Can I Make?
They sky is the limit as to things you can make motions for. If you want the judge to order something you can make a motion asking for it. Of course, the court isn’t going to grant any motions that aren’t based in fact and law. So if your motion doesn’t have facts with supporting documents, or doesn’t cite to laws or court rules in your state, the judge isn’t going to grant your motion.
Although the types of motions you can make are numerous, there are a few common motions made by defendants in debt collection cases.
- Motion to Dismiss. A motion to dismiss is a motion that asks the court to dismiss the lawsuit. These motions are usually based on an argument that the plaintiff has not made claims that justify a lawsuit in the first place. For example, a motion to dismiss can be based on the statute of limitations. The plaintiff’s complaint does not make a claim that a court can rule in the plaintiff’s favor because the claim is outside the statute of limitations and therefore must be dismissed. Another example might be if a the creditor filed the lawsuit in the wrong court. In that case, you might file a motion to dismiss based on lack of jurisdiction by the court.
- Motion for Arbitration. If you and your creditor have a signed arbitration agreement governing your interactions, you can ask the court to dismiss the lawsuit and force the parties to arbitrate. Debt collectors don’t always like arbitration because it could end up costing them hundreds or thousands of dollars to pay an arbitration panel. Oftentimes, if you force a case into arbitration by filing a motion to dismiss, the debt collector may just drop the case.
- Motion to Compel – If you send written discovery requests to the Plaintiff and they fail to respond or they don’t provide you with the items or answers you requested, you can file a motion to compel and ask the judge to order them to provide the items or answers you requested.
- Motion for Summary Judgment – This is similar to a motion to dismiss. A motion for summary judgment says that as a matter of law, the judge has to rule in one side’s favor because the other cannot make an argument at trial and win the case. A common example of this in debt collection cases is a motion for summary judgment based on failure to respond to requests for admission. Requests for admission are written questions that ask the other party to admit or deny certain statements. If the other party does not answer the written statements, they are considered admitted. So you could send your debt collector a request for admission saying “Admit that Defendant does not owe the debt.” If the creditor doesn’t respond, you can then file a motion for summary judgment saying that the plaintiff admitted the debt isn’t owed, so as a matter of law, the court must enter judgment in defendant’s favor. If you want to try this out in your case, we have a requests for admission form and a motion form for purchase at this link.
- Motion to Satisfy Judgment – If judgment is entered against you, you’ll have to pay the amount owed. When you pay it off, you should get the court to acknowledge that you paid the judgment and ask the judge to close the case. This is done by filing a motion to satisfy the judgment.
This is just a small sample of the types of motions you can file. Remember that you aren’t limited to this, and you can ask the court to do anything as long as you have factual support and laws that justify your request.
If you need forms to draft your own motions or handle the defense of your case, check out this link here. Our forms come with an e-book that provides detailed instructions on how to use the forms to win your case.
If you need a little help figuring out how to format a motion or want to learn from an attorney how to defend your own debt collection lawsuit, send us an email at contact@debtbrief.com. We do 1/2 hour and full hour consultations where we teach you how a debt collection lawsuit works and all the things you need to know to defend your case.
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