Consumer protection lawsuits in federal court: part 4 — choice of defendant now that it has been served


Once a defendant is served in a federal consumer protection lawsuit, the defendant has 21 days to choose what to do next: nothing, file a motion to dismiss the lawsuit or complaint, or file an answer to the lawsuit.

Let’s look at these options in more detail now and in the next couple of articles in this series.

Doing nothing will mean the defendant will have a default judgment entered against it by the federal court.
If the defendant doesn’t respond to the lawsuit but instead does nothing, then you can ask the court to enter a default judgment against the defendant. This means the defendant loses the lawsuit.

“Default” simply means not showing up — not taking any action. If we don’t pay our mortgage note, we will be in default. If a team doesn’t show up to the Super Bowl, it loses by default.

“Judgment” means the court has made a ruling that the defendant has lost the case. There will be a dollar amount of the judgment.

Once you have a default judgment, you can start to “execute” on that judgment to collect the money owed to you. You can put liens on property of the defendant. Garnish bank accounts. Seize assets, etc.

Because this is so serious, most defendants will not default. Or if they do, they will quickly ask the court to “undo” the default judgment so they can defend themselves in the case.

So this is a lousy option for the defendant but I supposed we can say it is one option they can choose. While not too common, the defendant can choose to file a motion to dismiss — let’s look at this next….

Filing a motion to dismiss within 21 days of being served is an attempt by the defendant to get rid of all or part of the case right now.
A “motion” is simply a request made to the court. We normally do these in writing.

“Dismiss” means to get rid of all or part of the case.

So a “motion to dismiss” is where the defendant asks the court to look at the complaint (the initial document in the lawsuit) and to throw it out of court. Either the entire lawsuit or part of it.

The basic reason for doing this is the defendant feels that either the either you have not put enough allegations of facts in the complaint or that the law simply is against you and there is no way you can win your case.

Obviously you will disagree as you (and us as your lawyers) believe you have alleged enough facts to give the court the basis of the lawsuit. And we feel the law is not against us.

The judge will give both sides time to make written arguments and occasionally will have the lawyers make oral argument.

Then the judge rules on whether any part of the complaint will be dismissed. If the entire case is dismissed, then that ends the lawsuit. If part of the case is dismissed, the rest of the case proceeds to the next phase which is the defendant answers the lawsuit.

We’ll talk about motions to dismiss in more detail in our next article but for now let’s look at the most common approach which is to file an answer to your complaint within 21 days of being served….

Filing an answer within 21 days means the complaint has been responded to and the case moves to the next phase of having a meeting of the lawyers to pick out the schedule and deadlines for the case.
The basic idea of answering a lawsuit (complaint) is to respond to each paragraph of your lawsuit and to put in their affirmative defenses which simply means the excuses the defendant uses for why it should win the lawsuit even though it may have violated the law. One example is a statute of limitation defense which is saying you took too long to file the lawsuit.

So there is no surprise, almost always the defendant basically denies everything and says it did nothing wrong and you are 100% at fault for what happened.

After an answer is filed, the next phase is picking the deadlines and schedule in the case but first let’s talk in our next article about the motion to dismiss in more detail.

Hope you are enjoying our series on consumer protection lawsuits in federal court.

Give us a call at 205-879-2447 if you have any questions and we’ll be glad to help you any way we can.


John Watts

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