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  1. #1
    joanimal is offline Junior Member
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    What happens at a motion for dismissal hearing?

    What is the name of your state? Texas

    I have a multi-part question. In the case of Motobank VS. myself (although at the bottom of most of the letter's it does state that this is a debt collector and not the creditor.) The judge has signed my fiat for motion for dismissal with the hearing dated for April, 2008. The judge also denied the plantiff's motion for summary judgement for the full amount of the debt. Does that mean that the judge just signs it and I pay nothing but I show up for the hearing, it's simply dismissed (A) or does he (the judge) argue it and can he the judge impose a dollar amount (B)... I want to know what happens or what is customary in this instance... from the best that could happen to the worse that could happen(C), (D), (E), etc.

    I haven't had a laywer to this point and have stated in all of my submissions that I cannot afford one which is why I am in this positon in the first place and I'm not at all proud of this entire situation. My husband lost his job when I was 8 1/2 months pregnant with a high risk baby who was born with I mild birth defect (single organ failure). He has had a low immune system and I've found it difficult to work with him being sick often.

    Thank you,
  2. #2
    Debt Guy is offline Senior Member
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    Jo

    I think you are not getting any suggestions since no one understands what you are asking. For example, I have never heard the phrase fiat for motion for dismissa and I don't know if that is unique to TX or what.

    Why don't you give a little more background on what this is all about and what the issues at dispute are? What are you trying to accomplish? What is the bank trying to accomplish?

    If we understood we might be able to give you some thoughts.
  3. #3
    joanimal is offline Junior Member
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    What happens at a motion for dismissal hearing

    Dept Guy,

    Fair enough! And Thank You for letting me know that you want to help! Background .... This case is concerning a credit card that I stopped paying on. I don't believe that I owe anything in this case as it is a debt collector (clearly stated on the lawsuit cover letter) and not the bank that has filed the lawsuit. The debt collector wants money becuase they purchased the debt from the bank, I haven't heard from the bank in forever and it's not on my credit anymore.

    I don't really know what a fiat is either. But that's not saying much as I know nothing about legal proceedings. I learned of it after I had handed in a motion for dismissal, the law librarian stated that I would need one so I handed it in a few days later, it has fill in the blank spaces for the judge to use and reads like this.....FIAT MOTION FOR DISMISSAL

    Take notice that the defendant's foregoing motion is hereby set for hearing on the______ (then there is space or the judge to sign it and set dates)
    also... Certificate of service is at the bottom and I sent it to the plantiff.

    I'm wanting to know what happens at a motion for dismissal, from my perspective, best case to worse case. My best case would be it's dismissed and I pay nothing. I have so many questions... Is there a form that I would have to bring to the hearing for the judge to actually dismiss it? Or is my motion good enough? Can the judge impose his own dollar amount... He did deny the plantiff's motion for summary judgement before he signed my fiat for motion for dismissal.

    I would greatly appreciate any input / advise on this. Respectflly Submitted, joanimal
    Last edited by joanimal; 03-19-2008 at 08:47 PM.
  4. #4
    Texas Pooh is offline Member
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    did you file an answer at some point before the motions started?

    A motion for summary judgment is a motion filed by one party that asks the court to rule, as a matter of law, for judgment in its favor. To get summary judgment, there must be no disputed questions of fact and the party seeking summary judgment must establish that by affidavit. In credit card cases, that means the plaintiff must have proof by affidavit that it owns the debt, the amount of the debt, and that no payments have been made.

    Thus, the plaintiff in your case apparently tried to establish summary judgment, but the court denied it (either because they didn't do the proper job, or you filed something that established that at least one fact was disputed).

    To answer your other question, if you file a motion set it for hearing, the court will rule on it.

    To file in the blanks on your notice of motion for hearing, you call the clerk of the court and tell them you need to set a motion for hearing. The clerk will tell you that the court hears motions on certian days (for example, mondays and fridays are popular) at such and such a time (usually nine or ten). You fill in that time and date on the notice, and then file it with the court and send a copy to plaintiff. Then, you show up at court on that day and time and ask the judge to rule on your motion.

    By the way, I've never heard of a fiat for dismissal??

    Hope that helps.
  5. #5
    joanimal is offline Junior Member
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    Thank you Texas Pooh,

    Sorry for the confussion about the word fiat, lets forget about that word for now. And yes I filed an answer.

    The fact is I have a hearing set for my motion for dismissal. I need to know what will happen when I get to this hearing. Will the judge simply grant or deny it? Or will he be asking all kinds of questions and maybe come to some other resolution.

    Respectfully Submitted,

    joanimal
  6. #6
    Texas Pooh is offline Member
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    okay ... I'm struggling with a motion for dismissal, as they don't generally exist in Texas practice except when a party is arguing that the other side failed to comply with a specific requirement (for example, you file a motion to dismiss if the other side doesn't respond to discovery, or fails to prosecute the action). Thus, I'm not sure what you filed, but I can answer your question about what the judge might do based on how judges act in general when hearing a motion. S/he will give you a chance to explain/argue the motion, and then give the lawyer on the other side a chance to discuss his opposition to the motion. Especially if you are in small claims court, its pretty informal and the judge will likely have some discusssion with you. After hearing both sides, and perhaps asking some questions, the judge will

    - grant the motion if s/he thinks it has merit; or
    - deny the motion if s/he either thinks you are not procedurally entitled to it, or if he thinks you're not entitled to it on the merits.

    The judge will probably then discuss with you where the case is going if its not going to be dismissed (for example, he might ask about mediation, or set a trial date, etc).

    Hope this answers your questions - if not, post again or send me a pm.

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