Need particulars as to how to stop a civil suit with a Ch7.

[upsidedown8]

Some background:

I live in Oregon.

While perusing the public records, I discovered that a JDB has filed a complaint against me for breach of contract in the local Circuit Court. I have not yet been served, although the complaint was filed nearly 2 weeks ago. The Plaintiff is Riverwalk Holdings LLC. Their lawyer is Dxxxxx Gxxxxx of Eugene Oregon. He sent me debt notices in the past but quit trying to collect when I demanded a VOD.

I have prepared a Motion to Dismiss for failure to state ultimate facts necessary to allege a claim for breach of contract. It has a 50% chance of being granted and I know I will be ordered to answer should it be denied. I am hoping to buy enough time to file a CH7 to wipe this debt (and others) away. I will be representing myself in both actions.

I am preparing a Notice of Removal under 28 USC § 1452(a) to file with the local Circuit Court, but I am not sure of the mechanics. I found a copy of a Notice of Removal online, which was filed in an Oregon Circuit Court and have most of the verbiage I need. I did note in that filing that it included another Notice of Removal, apparently filed in Bankruptcy Court. Must I move the BK Court to allow me to invoke 28 USC § 1452(a), or do I simply put the BK Court on notice that I am removing the case from State to Federal jurisdiction?

Can anyone give me an idea of exactly how this process works? Also, since I have not been served by this time, I fear that the process server may toss the Summons in the trash rather than serve it– leaving me to face a default judgment. Any idea how I can deal with that, since I must admit knowledge of the suit to file a Motion to Dismiss? If I have knowledge of the suit, the Court may presume I was indeed served.

Also, is there any point in the Civil trial (aside from judgment) where it is too late to file a Notice of Removal?

Any information shared with my would be greatly appreciated.

[HHM]

What ever website from which you got that information, STOP READING IT.

1st. No Basis for Removal...an action to collect debt does not raise a federal issue or question. Don''t waste your time, or the courts with this frivolous motion. More specifically, under the statute you cited, it assumes you have already filed BK. Have you filed BK? If so, you don't need to go to this trouble. All you need to do is serve your BK filing notice on the JDB and the state court. You do not need to REMOVE the action to court. If you have not yet filed BK, no basis for removal.

2nd. Motion to dismiss for failure to state a claim is very technical...so long as they have alleged in their complaint that certain money is owed, and that you owe it...they have met their burden. You really run the risk of annoying the judge. Not sure where you get the idea that it has a 50% chance of being granted. Keep in mind, a complaint merely "alleges" certain facts. The plaintiff does not need to "prove" facts at the time of complaint (unless there is a state statute that requires some sort of supporting proof). So, more likely, the motion has less than a 5% chance of being granted. To meet the burden, all a plaintiff need to allege is (1) there was a contract, (2) it was breached (you defaulted on payments), (3) there is an amount of money due, (4) it is you who owes it. If that is what the complaint contains, then they HAVE alleged facts upon which a claim can be based.

A failure to allege a claim would be something like an allegation of "battery" against a dog. The Tort Claim of Battery is an unwanted, offensive touching of a person by another. If you were to file a complaint alleging that someone who attempted to pet your dog committed "Battery" against your dog, that would be a type of claim that is ripe for a motion to dismiss for failure to allege facts upon which a claim can be based. A "Battery" claim necessarily involves the offensive touching of another "person", a dog is not a person.

If you haven't yet filed BK, your BEST response is to simply file an Answer denying the claims. That will create live lawsuit and give you time.

If the goal is simply to delay, then just file the answer. It will be months before a trial set.

Also, you can't, and shouldn't, file anything until you have been served.

[AngelinaCat]

A Ch7 or Ch13 will 'toll' or stop the lawsuit for the duration of the BK--meaning it cannot go forward while you are in BK, but will not get rid of it. Once you are out of BK, the lawsuit can commence again.

If there is a debt involved, the debt 'may' be discharged--depending on the type of debt--and then the reason for the lawsuit will go away. However, if the lawsuit was for some other reason, the monetary award may not go away.

[upsidedown8]

Thanks all!

A Ch7 or Ch13 will 'toll' or stop the lawsuit for the duration of the BK--meaning it cannot go forward while you are in BK, but will not get rid of it. Once you are out of BK, the lawsuit can commence again.

If there is a debt involved, the debt 'may' be discharged--depending on the type of debt--and then the reason for the lawsuit will go away. However, if the lawsuit was for some other reason, the monetary award may not go away.

The breach of contract action is made relative to collection on an unpaid credit card. The SOL ends in 12 months. I have been thinking of filing CH7 for sometime. This lawsuit just tells me it's time to do it.

Thanks AngelinaCat!

What ever website from which you got that information, STOP READING IT.

1st. No Basis for Removal...an action to collect debt does not raise a federal issue or question. Don''t waste your time, or the courts with this frivolous motion. More specifically, under the statute you cited, it assumes you have already filed BK. Have you filed BK. If so, you don't need to go to this trouble. All you need to do is serve your BK filing notice on the JDB and the state court. You do not need to REMOVE the action to court.

2nd. Motion to dismiss for failure to state a claim is very technical...so long as they have alleged in their complaint that certain money is owed, and that you owe it...they have met their burden. You really run the risk of annoying the judge. Not sure where you get the idea that it has a 50% chance of being granted. Keep in mind, a complaint merely "alleges" certain facts. The plaintiff does not need to "prove" facts at the time of complaint (unless there is a state statute that requires some sort of supporting proof). So, more likely, the motion has less than a 5% chance of being granted. To meet the burden, all a plaintiff need to allege is (1) there was a contract, (2) it was breached (you defaulted on payments), (3) there is an amount of money due, (4) it is you who owes it. If that is what the complaint contains, then they HAVE alleged facts upon which a claim can be based.

A failure to allege a claim would be something like an allegation of "battery" against a dog. The Tort Claim of Battery is an unwanted, offensive touching of a person by another. If you were to file a complaint alleging that someone who attempted to pet your dog committed "Battery" against your dog, that would be a type of claim that is ripe for a motion to dismiss for failure to allege facts upon which a claim can be based. A "Battery" claim necessarily involves the offensive touching of another "person", a dog is not a person.

If you haven't yet filed BK, your BEST response is to simply file an Answer denying the claims. That will create live lawsuit and give you time.

If the goal is simply to delay, then just file the answer. It will be months before a trial set.

Also, you can't, and shouldn't, file anything until you have been served.

There was no website with information. The pleading was motion filed in Civil Court. Thanks for the heads up about noticing the Court.

2nd. I am fairly well versed in Motion practice, having defended a 3 year long harassment suit for defamation. I do understand that the plaintiff must allege all elements of their claim for breach of contract. (Slover v Oregon State Bd of Clinical Social Workers 144. OR Ap 565. 570 (1996)) I am not a lawyer. I do have other faults which compensate.

One allegation is poorly constructed which may or may not state the alleged contract’s relevant terms. The second defect is that it fails to allege damage to the plaintiff.

As to why I would bother to move for dismissal, I am playing for time, and I am working to make it as expensive as possible for the JDB. I have no garnishable wages nor real property. My personal property is likewise, exempt from seizure. There is no pot of gold at the end of this rainbow for the JDB. I will be sending him a letter to that effect if they ever serve me.

Perhaps a robust defense will make him consider the fact that I am not the best candidate for litigation. Maybe it’s pride. If they are going to sue me, they should at least act like they mean it.

Maybe it’s because I just feel like hurting the JDB. I am mean like that sometimes.

If the Court denies the motion, it will most likely order me to answer within 10 days of the order. Once I answer, the Court will set a hearing date for arbitration. If it gets to this point, the plaintiff will understand that there is no money here, only trouble.

I expect that I will be ready to file BK long before the civil trial.

Thanks HHM for setting me straight on the Notice. I do appreciate it!

[HHM]

Law is not as technical as many pro se defendants think. Best case, you get a patient judge, worst case, you get a judge that orders you to pay the plaintiffs attorney fees for filing frivolous motions.

All we can to do is offer our perspective, but since you seem to know it all already, hopefully you stick around to offer advice to others.

Again, as for the complaint, all courts, everywhere in the US. have done away with "Strict" pleading requirements. All that is required is that a court can figure out what the plaintiff is complaining about. Defects in form, etc are irrelevant. Also, in a breach of contract for payment of debt, damage is presumed. A debt is owed, you didn't pay. They really don't need an extra line that states, "by the way" we have been damaged by the failure to pay. The damage is inherent in the nature of the claim. A complaint can be literally this simple.
1. John owes me $5,000
2. John hasn't paid.
That is enough to state a claim. That would be enough to survive a Motion to Dismiss for Failure to State a Claim. The test for such a motion is this "if all the facts in the complaint were found to be true, would the plaintiff have a cause of action." It is a VERY LOW standard.

I am really just trying to save you a bunch of headache and a "real" risk that your frivolous fight could bite you.

I have seen this happen even to attorneys. Attorneys started playing these sorts of games with no basis, and the court held the attorney jointly and severally liable to pay the plaintiff's attorney fees.

[justbroke]

It is interesting in your choice of nouns. In one case you say junk debt buyer (JDB) and then refer to the JDB as "him" and that you want to hurt "him". I have just never seen, in writing, people refer to junk debt buyers (JDBs) as "people" only as an entity.

Back to the basis of your post. That was whether Chapter 7 would stay (stop) the civil proceeding. Yes it would, but that would also toll any statute of limitations. HHM has provided great advice on the practical portion of fighting the complaint. My question is... why play games? Why not just file Chapter 7 now? Are we missing something?

[upsidedown8]

Law is not as technical as many pro se defendants think. Best case, you get a patient judge, worst case, you get a judge that orders you to pay the plaintiffs attorney fees for filing frivolous motions.

All we can to do is offer our perspective, but since you seem to know it all already, hopefully you stick around to offer advice to others.

I do recognize that I don’t ‘know it all,’ but am confident of the outcome, based upon personal experience in this particular court. I am familiar with the trial Judge and he is patient. I do hope this forum is hospitable. I would love to stick around. I do appreciate your insight.

Again, as for the complaint, all courts, everywhere in the US. have done away with "Strict" pleading requirements. All that is required is that a court can figure out what the plaintiff is complaining about. Defects in form, etc are irrelevant. Also, in a breach of contract for payment of debt, damage is presumed. A debt is owed, you didn't pay. They really don't need an extra line that states, "by the way" we have been damaged by the failure to pay. The damage is inherent in the nature of the claim.

Perhaps things have changed here in Oregon in the past few years, but I have been on both sides of the ‘failure to state ultimate facts necessary to allege a claim’ game. I do realize that much depends upon the Court’s discretion. If you might steer me to the authority you cite relative to ‘strict pleading’ requirements having been changed everywhere, I would be much obliged.

I am really just trying to save you a bunch of headache and a "real" risk that your frivolous fight could bite you.

I have seen this happen even to attorneys. Attorneys started playing these sorts of games with no basis, and the court held the attorney jointly and severally liable to pay the plaintiff's attorney fees.

I imagine that attorney fees are likewise dischargable in CH7. I do appreciate your advice.

It is interesting in your choice of nouns. In one case you say junk debt buyer (JDB) and then refer to the JDB as "him" and that you want to hurt "him". I have just never seen, in writing, people refer to junk debt buyers (JDBs) as "people" only as an entity.

Yes, the JDB is a man. I would name him but I already ran afoul of the forum rules by naming the attorney. Thanks to AngelinaCat for the edit.

Back to the basis of your post. That was whether Chapter 7 would stay (stop) the civil proceeding. Yes it would, but that would also toll any statute of limitations. HHM has provided great advice on the practical portion of fighting the complaint. My question is... why play games? Why not just file Chapter 7 now? Are we missing something?

I assume the SOL will be immaterial once the debt is discharged. I apologize for not properly explaining myself as to “why play games? Why not just file Chapter 7 now?”

I am buying time. I am also collecting the documentation I will need, studying the issue, and I am preparing emotionally for the process.

I also have less than zero empathy for bottom feeding attorneys and JDBs. They trade in the pain, misfortune, and suffering of those who have suffered a reversal in fortunes. I would love to make a dent in their expected rate of return on investment and make no apology for that. If I can do that while defending myself, I will find satisfaction.

Thank you for your responses.

[HHM]

I am buying time. I am also collecting the documentation I will need, studying the issue, and I am preparing emotionally for the process.

In other words, your just scared and just delaying to delay, basically, you are not yet serious about filing BK or have some emotional or psychological hang up. If you really wanted to, barring some strategic reason not to, you could have a BK put together by next week and be filed. So, sitting here, it just seems you are not committed to actually solving your problems, allowing these distractions to take precedent, and over all, playing a poor me game and not taking action to "improve" your circumstances. If you were serious, you wouldn't be here asking how to frivolously delay a proceeding, but how to get your BK moving.

As for the "justice" of it. Keep in mind, there are 2 sides of coin. Look, the debtor borrows money, and the debtor doesn't pay it back. Many (actually a majority) of people view that as immoral and unjust regardless of reason. So, don't play a victim.

Also, I think you are harboring the false assumption that by litigating this case, that it is actually "costing" the JDB money. The JDB has already spent as much money on the case as it is going to. The attorneys in this field work on contingency, so aside from the hard costs of the filing fee and service of process, which has already been spent in the normal course, you are not costing the JDB any more money. Yes, you are eating up time of the attorney, but it is merely a cost of doing business.

Best thing you can do is simply file an Answer, and start getting your BK in order. The BK is what is going to SOLVE your problem...this blind vendetta is merely a distraction and won't accomplish anything that benefits you.

I am sorry if you don't like the "perspective," we are not here to sanction every scheme someone comes up with, we just give our perspective, and sometimes that is actually at odds with a new member.

[frogger]

I also have less than zero empathy for bottom feeding attorneys and JDBs. They trade in the pain, misfortune, and suffering of those who have suffered a reversal in fortunes. I would love to make a dent in their expected rate of return on investment and make no apology for that. If I can do that while defending myself, I will find satisfaction.

Thank you for your responses.

Now that's an interesting statement.

Perhaps they should have zero empathy for people that have not paid their bills as well, for whatever reason?

They trade in the "pain, misfortune, and suffering"? That's a pretty bold statement.

So your goal is to "punish" people that bought debt that you did not pay? Exactly how that can give you some satisfaction is beyond my grasp. Bankruptcy is a fresh start for you that leaves many casualties along the way, with many people being deprived of the payment that you promised.

Is not paying them "punishment" enough? It appears that you want to make this personal.

Karma my friend. Remember it...........

[upsidedown8]

Yes. I see the error of my ways. Thanks for setting me straight.

[justbroke]

Some people like to litigate when there are cheaper alternatives, or, at least, alternatives that don't take up as much time and energy. We are just reading your situation and asking ourselves... why not just file now? If there is nothing else precluding you from filing then the strategy to drag our the civil complaint does nothing more than drag out the civil complaint.

In either case, you "hurt" the JDB because in the end... they will not be paid. But that's a business risk that they undertook. As such, you should be trying to mitigate your personal loses and reduce your risk.

It's a business decision.

[upsidedown8]

Particulars.

So, has anyone an idea as to how I inform the civil court as to my status, once I file BK? I am sure that I must include a copy of the BK filing with whatever device is used to inform the court and the creditor.

Also, they have elected to serve me by registered mail and I am going to pick up the summons this week.

Any useful information would be appreciated. Thanks.

After doing more research, it looks as though the device I seek is called a "Suggestion of Bankruptcy." I will direct my attention to that.

Thanks.

[AngelinaCat]

The 'Suggestion of Bankruptcy' is the title of the document that the court sends out to everyone listed on your creditor matrix. However, unless you actually file, this document will not be generated.

[upsidedown8]

The 'Suggestion of Bankruptcy' is the title of the document that the court sends out to everyone listed on your creditor matrix. However, unless you actually file, this document will not be generated.

I will of course file CH7 before notifying the local court. So, are you saying that the court creates this document instead? If so, my original question remains: exactly what do I do to notify the civil court of the Bankruptcy?

I am planning on being served on Monday, and hope to have ready whatever response is required to stop the civil suit.

Thanks.

[justbroke]

You notify the Civil Court by listing the Civil Court on the Creditors Matrix as "FOR INFORMATION ONLY" with their address and use the case number as the account number. Additionally, once the "Notice of Bankruptcy" document appears on the document (which is usually quickly), or you take a certified "stamped" copy of the petition to the Civil Court, you can file a Suggestion of Bankruptcy in that case.