1. Free Legal Help, Legal Forms and Lawyers. TheLaw.com has been providing free legal assistance online since 1995. Our most popular destinations for legal help are below. It only takes a minute to join our legal community!

    Dismiss Notice

RULE 12(B) (6)

Discussion in 'Civil Court, Procedure & Litigation' started by LOWPROFILING, Mar 24, 2020.

  1. LOWPROFILING

    LOWPROFILING Law Topic Starter New Member

    Messages:
    4
    Likes Received:
    0
    Trophy Points:
    1
    Jurisdiction:
    Arizona
    Approximately June 2019 I was awarded a default judgment in Maricopa County Superior Court based on the defendant's failure to appear. Defendant has recently filed a Motion to Dismiss citing Rule 12(B) (6). The wording goes on to say "accompanying documentation with proof for each dismissal reason"

    If "proof" was presented, it was not included in the copy I received. What is on my copy is 3 pages of accusations that consist of a lie as to why the money was owed, followed by claims that have no relevance to matter at all such "threatening text" & "fear for her life", "single struggling mother" which is all nonsense.

    In a nutshell, while I was out of town, my girlfriend at the time stole some of my jewelry, then sold it for casino money as she had a gambling problem. I have a judgment against her for 35K, and have proceeded to garnish her wages.

    I need to respond to this. Any thoughts please?

    Thank you
     
  2. flyingron

    flyingron Active Member

    Messages:
    515
    Likes Received:
    216
    Trophy Points:
    43
    You've missed a step here. Can I assume what is currently on the table is a motion to set aside the default judgment based on raising a "meritorious defense" under 12(b)(6)?

    A 12(b)(6) motion has nothing whatsoever to do with "proof" or even lies or truth. It is a motion that regardless of the veracity is claimed by the plaintiff, there's no legal basis for relief.
     
  3. Zigner

    Zigner Well-Known Member

    Messages:
    1,626
    Likes Received:
    877
    Trophy Points:
    113

    You should speak to an attorney.
     
  4. adjusterjack

    adjusterjack Super Moderator

    Messages:
    7,286
    Likes Received:
    1,765
    Trophy Points:
    113

    Option: Deny all allegations and ask for a hearing on the motion. Your ex will have to appear in court. If she doesn't you ask that the motion be denied due to her non-appearance and then the judgment stands.
     
  5. zddoodah

    zddoodah Well-Known Member

    Messages:
    3,447
    Likes Received:
    785
    Trophy Points:
    113

    Well...for starters, if the court already entered a default judgment, I have serious doubts that it will rule on, or even consider, the motion. You might want to call the clerk of the judge handling the case and inquire about this.

    As for the motion itself, Rule 12(b)(6) provides that a court may dismiss a complaint for "failure to state a claim upon which relief can be granted." It is not a motion based on evidence. Rather, it is a motion that says, "even if all of the facts alleged in the plaintiff's complaint were true, the plaintiff has no viable legal claim against the defendant." In ruling on a 12(b)(6) motion, the court must accept as true all well-pleaded factual allegations. It will not generally consider any evidence and only considers the allegations of the complaint. From your description, your ex didn't even come close to making a proper 12(b)(6) motion.

    I agree that you should consult with and retain an attorney.
     
  6. army judge

    army judge Super Moderator

    Messages:
    31,319
    Likes Received:
    4,584
    Trophy Points:
    113

    If she loses at the next hearing, sooner or later she's likely to seek relief via the federal bankruptcy court.

    Even if she does nothing, she's likely to land among the millions of unemployed as a result of the "virus". When she becomes unemployed, your garnishment well runs dry.

    If the garnishment is bringing you $300 a month, it'll take 10 years before you get the missing $35K back.

    Have you considered selling your judgment to a factor/collection agency, or a company that buys judgments?

    Entities that buy judgments, do your due diligence before selecting one, as I am ONLY illustrating they are out there NOT recommending any:

    Selling Judgments For Cash | Mayflower Judgments - We Buy Judgments

    Selling your Judgment for Cash

    Judgment Marketplace

    We Buy Judgments, Commercial Debt Collection Attorneys | Adam Pugh

    Good luck, mate.
     
  7. LOWPROFILING

    LOWPROFILING Law Topic Starter New Member

    Messages:
    4
    Likes Received:
    0
    Trophy Points:
    1
    Thank you for the quick replies. It's probably going towards having to hire legal counsel, this was my final step before such. I am in FL, the case is in AZ, so asking for a hearing to which I need to appear is not the ideal situation. Flyingron the the first several lines read as follows.... "I the Defendant, XX (pro per) am requesting pursuant to Rule 12(b) (6) the court dismiss or quash the Plaintiff's civil judgement with prejudice, against me. The basis for this motion are set forth in the accompanying documentation with proof for each dismissal reason. I understand this will be lengthy and I ask that each of my statements below are considered as valid reasons to dismiss this case with prejudice in its entirely" Then she goes on to talk about how she accidentally mixed up the items in question in a yard sale, which is a lie, then proceeds to air out all our dirty laundry when it comes to our relationship, of course giving her version to make it seem like I was some sort of monster.
     
  8. LOWPROFILING

    LOWPROFILING Law Topic Starter New Member

    Messages:
    4
    Likes Received:
    0
    Trophy Points:
    1
    Army Judge - It's actually $785.00 every two weeks. She has a good job, and its not going anywhere. Stable company. I am thinking 25K lets talk.
     
  9. adjusterjack

    adjusterjack Super Moderator

    Messages:
    7,286
    Likes Received:
    1,765
    Trophy Points:
    113

    That's what you are getting every two weeks? If yes, she's probably not going to risk her financial future by filing bankruptcy or quitting.

    Best thing you can do right now is file a response to the motion asking that it be denied because it's an improper motion for post-judgment relief.

    You mean offer to settle as full and final for $25K cash? Sounds reasonable if she has that kind of money saved up.
     
  10. LOWPROFILING

    LOWPROFILING Law Topic Starter New Member

    Messages:
    4
    Likes Received:
    0
    Trophy Points:
    1
    This is the information I was seeking, thank you. Can anyone point me in the right direction as to how I might read about such further, and perhaps quote a law to show her motion is improper? What I have found thus far is tad over my head in regard to comprehending it completely.
     
  11. army judge

    army judge Super Moderator

    Messages:
    31,319
    Likes Received:
    4,584
    Trophy Points:
    113


    I don't buy judgments, mate.

    I was simply demonstrating that there are companies out there who DO BUY JUDGMENTS as their main business strategy.

    Some are listed in my post above, none of whom I endorse, as I was just illustrating that these companies are out there.

    I have facilitated transactions for several clients, and usually those entities offer anywhere from 75 cents to 10 cents on the dollar depending on how much the company believes the judgment to be worth to them, not necessarily the judgment's value. When I facilitated these transactions the money was electronically delivered to the client's bank account within hours, but no later than 24 hours after the paperwork was signed.

    You can contact three or four of the companies you discover and see what you can learn. If your debtor has been reliably paying YOU, that might cause the debt buyer to offer you more money. Think of it this way, you get a lump sum of money and collecting the damn thing becomes someone else's headache.
     
  12. Zigner

    Zigner Well-Known Member

    Messages:
    1,626
    Likes Received:
    877
    Trophy Points:
    113

    You don't need an internet forum. You NEED an attorney.
     
  13. zddoodah

    zddoodah Well-Known Member

    Messages:
    3,447
    Likes Received:
    785
    Trophy Points:
    113

    I don't know about Arizona superior courts, but federal courts rarely hold hearings on 12b6 motions.

    My guess would be that the court will construe this as a motion to set aside the default and judgment, and not as a 12b6 motion. However, unless the motion sets forth a valid reason to set aside the judgment, the court will likely deny it (or, at worst (for you), would give her a further opportunity for briefing).

    As for if/how you respond, I think the responses in this thread have summed it up in a general manner. Anything beyond that is going to require a local attorney.
     

Share This Page