How Do I File a Motion to Dismiss on a Time-Barred Debt?

Getting sued for money owed can be a disaster for anyone. Depending upon your financial situation and the size of the alleged debt in question, a lawsuit to collect a debt could drive you into bankruptcy to avoid the execution of a judgment. Some debts, however, become uncollectible by operation of the statute of limitations. In order to secure the benefit of the statute of limitations, you have to correctly raise it as a defense.

Instructions

1

File your answer and defenses within the time allowed by your jurisdiction. Your first answer should be a motion to dismiss for failure to state a claim upon which relief can be granted under your state's version of Rule 12b6 of the Federal Rules of Civil Procedure, which most states track closely. Your second answer will contain the number of each allegation of the complaint, which you will either admit or deny. Your third answer will be a specific pleading of the statute of limitations, in clear but simple terms. All of these will be contained within the same document.

2

Title your document "Defendant's Answer and Defenses," using the same case caption as the plaintiff's complaint. The caption will identify the state, county and trial division of the court in which the action is pending, and it will also contain a case number and case name by which the action is identified. This information must appear on every document you file in the case.

3

Serve your answer and defenses on the creditor's attorney of record at the address listed on the complaint after you've filed it with the court. Prepare a certificate of service with the case caption, certifying that you mailed a copy of the answer and defenses to that address on a given date. Filing a document in a case involves going to the applicable courthouse, handing an original and any necessary copies to the clerk of court and asking that the document be filed.

4

Draft interrogatories, or written questions, to the creditor asking it to specifically state the date you last made a payment on the account, the date of any settlement agreement you allegedly broke, the date of your last affirmation of the debt and any other dates relevant to your case. Draft requests for document production by asking that the creditor produce any written agreements that you allegedly signed and statements from the time of filing of the complaint all the way back to the beginning of the applicable statute of limitations. Serve these by mailing them to the creditor's attorney of record.

5

File a summary judgment motion, which states that there is no genuine issue of material fact as to your statute of limitations defense and asks for judgment as a matter of law. Serve this, and a calendar notice setting the motion for hearing with sufficient notice, upon the creditor's attorney of record by regular mail. At the hearing, produce the creditor's responses to your interrogatories and document production requests, and show how the creditor can't possibly win at trial.