Odd Situation, Advice Desperately Needed!

[Anonymous]

I need some advice on what my Mother should do next...

My Mother was sued by a JDB about a year ago. She went to court but the lawyer for the Plaintiff requested a dismissal without prejudice. She never saw a judge or got to tell the judge in person about it being past the SOL. We live in Michigan and the CC account was charged off in 2001 and no payments have been made since that time. She was sued again a few months ago but this time she was able to get in front of the judge. The plaintiff (which sent a local lawyer instead of coming in themselves) had no evidence but the judge didn't dismiss the case right then and there. The judge did, however, say that it seemed like a frivolous lawsuit because she had been sued twice with no evidence. And get this, the papers that the lawyers submitted said that she made a payment of $0 in 2006 and that is the evidence that they are using to say that the SOL was reset. The judge said that the lawyer should talk to the lawfirm(JDB) about this issue and that the case should not go to trial without evidence. 

The lawyer talked to my Mother outside the courtroom and said that basically the JDB had until the end of discovery to find something or they could face sanctions. What should she do now? Just wait it out or is there something that she can do to end this now? The JDB sent in a pre-trial statement in April and asked for 90 days for discovery. I think that this would mean that the 90 days are now up. Am I wrong?

Any help would be appreciated. I have helped her about all I can on this subject and it is now past my abilities. Thanks!

[RobertEG]

It looks like the pre-trial phase is still in progress.

Call the office of the clerk of the court, who can answer any questions regarding status and scheduling.

[jamie123]

Okay...Take this with a grain of salt. Disclaimer: I AM NOT AN ATTORNEY!

I think you need to file a MOTION TO DISMISS.

In this motion you would ask the judge to dismiss the lawsuit because the Plaintiff lacks evidence and has filed a frivolous lawsuit.

Also file another MOTION TO DISMISS.

This one should be on the basis that the claims being made by the plaintiff are outside the SOL.

You will have to fill out an affidavit for each of these along with any evidence you may have.

These will have to be filed with the CLERK OF COURTS with copies sent by registered mail to the Plaintiff.

A judge can really only rule YES or NO. The judge seemed to be trying to help you out by informing you of what he thought about the case, (He really shouldn't be doing that!)but he did not have a motion in front of him to rule on. (The motion to dismiss that you never filed with the court.)

If you do just a little bit of internet research you can find out the specifics as how to write these motions. You can also go down to the courthouse and they can help you out.

Just showing up at court to talk to the judge IS NOT GOOD ENOUGH!

Oh...Almost forgot....Your mother needs to have her name on all these documents. She will be representing herself as "Pro Se". You are not allowed to speak for her unless you have a law degree and have passed the bar in Michigan.

Good luck!

[jamie123]

Oh....Something else!

Discovery works both ways. Make sure, if this case continues, you ask the other side for proof of your Mother's original application or they better have a really good reason they can't provide it. I'd say after you asked for this it would be CASE CLOSED!

[Anonymous]

Actually they had the application and proof that they bought it from a different CA but no proof of payment to reset the SOL.

[jamie123]

You definitely should then file the MOTION TO DISMISS because of the SOL violation.

[Anonymous]

Do I have to wait until the end of the discovery phase (I think that is over but not totally sure- They sent in their pre-trial statment on April 25th I think and asked for 90 days) or should I just get her to file that right now? Sorry for so many questions but I am new to this trial stuff.

[bahbahd]

file it now

[RobertEG]

File your pre-trial motion to dismiss based on your assertion of expiration of SOL, not on their "violation" of SOL.

Their filing of action is not a "violation" of SOL.  You dont go into trial with an expiration of SOL as a fact, you must assert and prove it.

If the judge agrees that you have proven expiration, you will be granted judgment without need to consider the merits of their case.