Can I File and Win a Motion to Dismiss with Prejudice

[ikiedoodle]

My question involves collection proceedings in the State of: Oklahoma

Capitol One Bank is using a law firm in Oklahoma City to try to collect a disputed CC debt. I answered (per se) their original paperwork in the allotted time (denying all points) and the summary hearing was set for today 14 Feb 12. Their attorney didn't show for the hearing and the court clerk told me they hadn't notified the court of their impending absence. When the judge asked for them and they didn't appear, I asked him if this is where I can make a motion to dismiss. He told me, pointing in the direction of the clerks office, "you can do that in the clerk's office". He then RESET the hearing for next month.

Why is it that if I don't show, they get a default judgment, but if they don't show, the judge reschedules for them and why did he do that.

My question is: Can I file a motion to dismiss with prejudice based on them not appearing and win? Do I have any recourse.

I'm also to uderstand that the law firm in OKC uses a local attorney sometimes to represent them. I also understand that he is related to the judge. Could this be the reason he rescheduled for them and do I have options if THIS is the case?

thank you in advance

[Mr. Knowitall]

You can ask the judge why, in your opinion, he is granting the plaintiff latitude that he would not extend to you. We cannot speak for either the accuracy of your impression or how the judge might answer.

You can file any motion you want. Beyond it's being a collections matter we know nothing about the case or why the plaintiff failed to appear, so we're not in a position to tell you whether you have any chance of prevailing.

If you believe the plaintiff's lawyer is related to the judge, and believe that is causing the judge to be biased, you can assemble facts to support your beliefs and if you can in fact document that your suspicions are true can attempt a motion to recuse the judge.

[flyingron]

Same reason why they'd allow you to vacate the default judgement if you missed the hearing.
I'd doubt you'd get a dismissal of the entire case (with prejudice) for missing the summary judgement hearing even if you made the motion. I'd move to dismiss the summary judgement motion and make it go to trial, but nothing stops you from filing multiple motions.

[ikiedoodle]

Capitol One Bank's collection lawyer's in okc BL&N, filed a suit for non payment. At the time of the default, the amount was $600+or- on a $300 limit credit card. Now it's up to $2100. I responded to their lawyers in the alloted time with "I deny all accusations" They sent me all the legal mumbo jumbo with photo copies of late payments starting with NUMBER TWO not number one, so I have no idea of what the balance was when I initially went "one" payment behind. They did not send a copy of my original contract signed by me. They included an affidivat from some cat claiming to be FAMILIAR with my account and that he attested to the fact that I owed a certain amount, according to computer records. I've since researched these affidivats from different suits brought by capitol one and found the form are from a templet that various people sign, attesting to the fact that they are "familiar" with the accounts.

The customer agreement and the arbitration agreement they included, are with Capitol One Services, inc, not Capitol One Bank (USA) N.A., listed as the plaintiff. Also, the location for making payments and the location of the signee of the affidiavt is listed in Virginia, but the address for Capitol one is in City of Industry, Ca.

So, I first get a notice to appear for a summary judgment hearing, which was set for A SUNDAY and the judge to hear it was RETIRED AND LIVING IN FLA. for two years. So I called the clerks office and asked them if I was suppose to show up on "Sunday", in front of the "retired" judge. They said they would check into it. I received, in the mail, an updated notice for the 14th of Feb with a different judge.

I show up for my hearing not feeling well and tell the clerk that i'm not feeling well (66 yrs old and on medication for military disability). So, she switches me to first on the docket instead of 7th. I was called and approched the bench, but when the plaintiff's atty was called, they weren't there. The court clerk tells the judge that "Eric" (another lawyere presumably the judges brother) sometimes handled those credit card hearings for those lawyers (who are 100 miles away in OKC), but he wasn't there either. I asked the judge if this is where I make a motion to dismiss. He told me I could "file" that in the clerks office. I thought the thing was over with and it just being a matter of me filing for dismissal. But, then, as I was leaving the courtroom I heard him tell his clerk to resehedule the case for the 12th of March and to call the next case.

I went into the clerk's office and asked if the plaintiff's lawyer had notified the court they would not be there and was told "NO they did not". I asked them why it was being rescheduled and that I thought if they didn't show up I win by default. They said they didn't know why the judge did that.

When am I suppose to ask the judge "Why" he rescheduled? Do I write him a letter or what?

It's not a matter of not owing the original amount which I tried to work with them on. I asked them to close the acct and quit adding all the $40 a month oTL fees, intrests etc, and just let me make payments until I got it paid off. They said they couldn't do that as long as I was making payments, the acct had to remain open, but suspended,,,duh. Then I went into the hospital and the rest is history.

If next time their lawyers show up and If i lose, can i appeal and ask for a jury trial? Can I ask for a jury trial now? (Small community and people here hate credit card debt collectors,,would be to my advantage)

I might ad that I was never served a notice I was being sued until I started getting this stuff in the mail from their lawyer.

If I had the money to pay, I would pay it. I'm on minimum SS and a small military VNam disability check, and a small mineral royalty check,,, my only income. I own my home and automobile, living with my fiancee. If I had the money to hire an attorney,, again, I would just pay the debt instead of trying to fight it, since I owed it. I wouldn't be so worried about it now except I understand if they get a judgement here in Oklahoma, they can force me to sell my house or any other assets I have to satisfy the debt. I have homestead exemption but,, still.

thanks
ike

[AZDeputyClerk]

You can send the judge a letter, but they most likely won't respond as that would be ex parte communication with a party. Most likely avenue would be to file a Motion for Clarification which would also have to be served to the other party's attorney.

When the bank's attorneys sent you papers, was it by Certified Mail-Return Receipt requested?