Motion to Vacate Judgement question

[justalayman]

I really don't think you understand what the attorney for the Plaintiff said. You have a hearing. This shows that you motion to dismiss was not granted.

His motion to vacate was granted. Op never said his motion to dismiss was granted. That’s what he’s here asking about

 

[PayrollHRGuy]

I understand that. I don't think think the Plaintiff said what the OP thinks he said.

 

[Jctm2011]

The Plaintiff definitely based his request for denial of my motion for dismissal on his assumption that judgment had NOT been vacated. I read it over several times to be sure I understood it. I get what you are saying about the trial rules and had even wondered before I filed the motion for dismissal if I should have filed for a motion to for summary judgment. The Plaintiff stated the procedural reason on the assumption on his part that judgment had NOT been vacated when, again after rechecking the order the judge signed stated my motion to vacate the judgement had indeed been granted. I was only asking as I was unsure if I had missed something on on whether the judgment had actually been vacated and set for trial. It seems to me for whatever reason the Plaintiff has missed that point himself that the judgment was actually vacated. Sorry this has been confusing in relaying this to you all. It seemed so obvious to me how could an experienced attorney miss something like this when it is in plain black and white, hence why I came here for advice. I am very confident I will win this case I just wanted to be sure I wasn't the one making a procedural mistake here. The trial is still more than a month away so I have time to make any changes if need be. Thank you again for you advice.

 

[justalayman]

A motion to dismiss requires a basis. What, if any, claim was the basis for your motion to dismiss?

 

[Jctm2011]

A motion to dismiss requires a basis. What, if any, claim was the basis for your motion to dismiss?

Yeah I submitted my basis in a few areas: lack of standing, hearsay, no personal knowledge of the Defendants debt, plus a couple if others.

 

[PayrollHRGuy]

Yeah I submitted my basis in a few areas: lack of standing, hearsay, no personal knowledge of the Defendants debt, plus a couple if others.

Other than lack of standing none of those would lead to pretrial dismissal. And there is no reason to think that there is any lack of standing.

 

[LdiJ]

I AM getting as that was my question in the first place. Was the judgement set aside or vacated? I have ZERO problem with going to trial. I think YOU don't get it. The Plaintiff claims my motion to vacate was NOT set aside. Yet the judge says it was. All I was asking here was a simple yes or not answer was the judgment vacated or not? I KNOW it wasn't dismissed hence the bench trial. Speakinf frankly the attorneys on here ha people come on here asking for advise and your reply is get yourself an attorney. My case is only for $1, 300 and before you say a smart ass reply like pay your bills the debt is not even mine. Its in small claims court the amount I would spend on an attorney I may as well pay for the judgment. When you say "deal with that"... That is exactly what I have been doing dumbass! I have all the evidence I need to prove this dent isn't even mine, the Plaintiff lacks standing in the case, is tell you guys only on hearsay, and is even violating a court order to dismiss the case themselves... You DEAL with that! Thanks for the advise and your smart ass comments ta simple yes or no answer. Geez

You do NOT need an attorney for small claims court. In fact, in Indiana a judge won't let an opposing party's attorney steamroll a pro se party.

To me, it sounds like the opposing attorney made a mistake in saying that the judgement was not vacated. Attorneys are human beings and can make mistakes. However, the judge will determine that and if you do end up with the bench trial, use the paperwork to prove its not your debt.

 

[Jctm2011]

Other than lack of standing none of those would lead to pretrial dismissal. And there is no reason to think that there is any lack of standing.

Well thats because I didn't say what my lack of standing was for on here. I already have that taken care of. I just needed help with my initial question

 

[Jctm2011]

You do NOT need an attorney for small claims court. In fact, in Indiana a judge won't let an opposing party's attorney steamroll a pro se party.

To me, it sounds like the opposing attorney made a mistake in saying that the judgement was not vacated. Attorneys are human beings and can make mistakes. However, the judge will determine that and if you do end up with the bench trial, use the paperwork to prove its not your debt.

Thank you that is what I am going to do. Just wanted do be sure I didn't miss something.

 

[Litigator22]

Yeah I submitted my basis in a few areas: lack of standing, hearsay, no personal knowledge of the Defendants debt, plus a couple if others.

None of which are grounds to support a 12(B) motion dismiss.

Obviously you are only interest in listening to lay people that can only offer what you want to hear, but I will try once more:

"Indiana Rules of Trial Procedure Rule 12. Defenses and objections -- When and how presented -- By pleading or motion -- Motion for judgment on the pleadings

(A) When presented. The time allowed for the presentation of defenses and objections in a motion or responsive pleading shall be computed pursuant to the provisions of Rule 6(C).

(B) How presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required; except that at the option of the pleader, the following defenses may be made by motion: (Emphasis added)

(1) Lack of jurisdiction over the subject matter,
(2) Lack of jurisdiction over the person,
(3) Incorrect venue . . . . . .
(4) Insufficiency of process;
(5) Insufficiency of service of process;
(6) Failure to state a claim upon which relief can be granted . . . . . . .
(7) Failure to join a party needed for just adjudication under Rule 19;
(8) The same action pending in another state court of this state. "

_______________________________________

Now would you care to preview your argument to the court identifying which of the above enumerated categories you believe to be appropriate as applying to "lack of standing", "hearsay", and "no personal knowledge, etc."?

 

[Jctm2011]

None of which are grounds to support a 12(B) motion dismiss.

Obviously you are only interest in listening to lay people that can only offer what you want to hear, but I will try once more:

"Indiana Rules of Trial Procedure Rule 12. Defenses and objections -- When and how presented -- By pleading or motion -- Motion for judgment on the pleadings

(A) When presented. The time allowed for the presentation of defenses and objections in a motion or responsive pleading shall be computed pursuant to the provisions of Rule 6(C).

(B) How presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required; except that at the option of the pleader, the following defenses may be made by motion: (Emphasis added)

(1) Lack of jurisdiction over the subject matter,
(2) Lack of jurisdiction over the person,
(3) Incorrect venue . . . . . .
(4) Insufficiency of process;
(5) Insufficiency of service of process;
(6) Failure to state a claim upon which relief can be granted . . . . . . .
(7) Failure to join a party needed for just adjudication under Rule 19;
(8) The same action pending in another state court of this state. "

_______________________________________

Now would you care to preview your argument to the court identifying which of the above enumerated categories you believe to be appropriate as applying to "lack of standing", "hearsay", and "no personal knowledge, etc."?

OBVIOUSLY you didn't read what I said earlier about filing a motion for Summary Judgment. OBVIOUSLY you assume you know EVERYTHING I did leading up to this point. I am. Not hear asking for advise on the reasons why I I felt the case should be dismissed. I have it covered. Just needed to to know if the case had indeed been vacated. A simple yes or no would have been fine. Reading what I did with the Trial Rules which was pointed out much earlier than what you just did tells me I should have filed a motion for Summary Judgment. My case doesn't go to trial for over a month so I have plenty of time to change it. Even if I go to trial I KNOW I will win this case as the Plaintiff has failed to answer any of my defenses and even if he did he still has no proof this debt is mine and no proof they own it. I a aid this earlier but there seems to be a lot of assuming on these threads. People come here for advise and the "professionals" act like the rest of us are morons and treat us as such when we are coming here for some advise. I know I don't have a law degree but all of this seems pretty basic to me. I have what I need for this now so thank you to everyone who helped out here.

 

[Litigator22]

OBVIOUSLY you didn't read what I said earlier about filing a motion for Summary Judgment. OBVIOUSLY you assume you know EVERYTHING I did leading up to this point. I am. Not hear asking for advise on the reasons why I I felt the case should be dismissed. I have it covered. Just needed to to know if the case had indeed been vacated. A simple yes or no would have been fine. Reading what I did with the Trial Rules which was pointed out much earlier than what you just did tells me I should have filed a motion for Summary Judgment. My case doesn't go to trial for over a month so I have plenty of time to change it. Even if I go to trial I KNOW I will win this case as the Plaintiff has failed to answer any of my defenses and even if he did he still has no proof this debt is mine and no proof they own it. I a aid this earlier but there seems to be a lot of assuming on these threads. People come here for advise and the "professionals" act like the rest of us are morons and treat us as such when we are coming here for some advise. I know I don't have a law degree but all of this seems pretty basic to me. I have what I need for this now so thank you to everyone who helped out here.

First, I have read all and assumed nothing.

Secondly, whether you have "plenty of time" or not your follow-up proposal to file a Rule 56 s/j motion will be just as flawed as your ill-conceived Rule 12(B) motion . Why?

For the simple reason that Summary Judgment only lies when there are no material facts in dispute and the movant is entitled to a judgment as a matter of law!!!

So - given the circumstances described - in order for you to prevail on a Rule 56 motion would require that the claimant debt collector do a complete U-turn from its present position. That is, admit that it has no cause of action against you. All of which would expose it not only to tort liability (abuse of process), likely violations of the FDCPA and the imposition of serious court imposed Rule 11 sanctions.

Incidentally, try convincing a law student struggling with a course on civil procedure that it is "all pretty basic"! Rumor has it that that particular course of study has spawned "bridge jumpers".

 

[Jctm2011]

First, I have read all and assumed nothing.

Secondly, whether you have "plenty of time" or not your follow-up proposal to file a Rule 56 s/j motion will be just as flawed as your ill-conceived Rule 12(B) motion . Why?

For the simple reason that Summary Judgment only lies when there are no material facts in dispute and the movant is entitled to a judgment as a matter of law!!!

So - given the circumstances described - in order for you to prevail on a Rule 56 motion would require that the claimant debt collector do a complete U-turn from its present position. That is, admit that it has no cause of action against you. All of which would expose it not only to tort liability (abuse of process), likely violations of the FDCPA and the imposition of serious court imposed Rule 11 sanctions.

Incidentally, try convincing a law student struggling with a course on civil procedure that it is "all pretty basic"! Rumor has it that that particular course of study has spawned "bridge jumpers".

You did assume when you made your statements. I never said that I didn't have any material facts. I chose not share anything on here as AGAIN my only question was about the judgement being vacated. You also assumed that I never considered the Plaintiff changing position which he has already attempted several times and failed... AGAIN I didn't share that on here as I was only looking for an answer to one specific question. When in referred to this being pretty basic I was s referring to the circumstances surrounding this case and once a goal you assumed I was referring to law in general... So three time you did.
I will let you know when I win this case

 

[LdiJ]

First, I have read all and assumed nothing.

Secondly, whether you have "plenty of time" or not your follow-up proposal to file a Rule 56 s/j motion will be just as flawed as your ill-conceived Rule 12(B) motion . Why?

For the simple reason that Summary Judgment only lies when there are no material facts in dispute and the movant is entitled to a judgment as a matter of law!!!

So - given the circumstances described - in order for you to prevail on a Rule 56 motion would require that the claimant debt collector do a complete U-turn from its present position. That is, admit that it has no cause of action against you. All of which would expose it not only to tort liability (abuse of process), likely violations of the FDCPA and the imposition of serious court imposed Rule 11 sanctions.

Incidentally, try convincing a law student struggling with a course on civil procedure that it is "all pretty basic"! Rumor has it that that particular course of study has spawned "bridge jumpers".

I am sorry but you are over the top here. This is a small claims case and the rules are very different for small claims in Indiana. The judge will decide what to do with his motion to dismiss. Its not a huge deal at this point.

 

[quincy]

You did assume when you made your statements. I never said that I didn't have any material facts. I chose not share anything on here as AGAIN my only question was about the judgement being vacated. You also assumed that I never considered the Plaintiff changing position which he has already attempted several times and failed... AGAIN I didn't share that on here as I was only looking for an answer to one specific question. When in referred to this being pretty basic I was s referring to the circumstances surrounding this case and once a goal you assumed I was referring to law in general... So three time you did.
I will let you know when I win this case

Litigator gave you some good general information based on what you decided to "share" in the way of facts.