Need particulars as to how to stop a civil suit with a Ch7.

[HHM]

What ever website from which you got that information, STOP READING IT.

1st. No Basis for Removal...an action to collect debt does not raise a federal issue or question. Don''t waste your time, or the courts with this frivolous motion. More specifically, under the statute you cited, it assumes you have already filed BK. Have you filed BK? If so, you don't need to go to this trouble. All you need to do is serve your BK filing notice on the JDB and the state court. You do not need to REMOVE the action to court. If you have not yet filed BK, no basis for removal.

2nd. Motion to dismiss for failure to state a claim is very technical...so long as they have alleged in their complaint that certain money is owed, and that you owe it...they have met their burden. You really run the risk of annoying the judge. Not sure where you get the idea that it has a 50% chance of being granted. Keep in mind, a complaint merely "alleges" certain facts. The plaintiff does not need to "prove" facts at the time of complaint (unless there is a state statute that requires some sort of supporting proof). So, more likely, the motion has less than a 5% chance of being granted. To meet the burden, all a plaintiff need to allege is (1) there was a contract, (2) it was breached (you defaulted on payments), (3) there is an amount of money due, (4) it is you who owes it. If that is what the complaint contains, then they HAVE alleged facts upon which a claim can be based.

A failure to allege a claim would be something like an allegation of "battery" against a dog. The Tort Claim of Battery is an unwanted, offensive touching of a person by another. If you were to file a complaint alleging that someone who attempted to pet your dog committed "Battery" against your dog, that would be a type of claim that is ripe for a motion to dismiss for failure to allege facts upon which a claim can be based. A "Battery" claim necessarily involves the offensive touching of another "person", a dog is not a person.

If you haven't yet filed BK, your BEST response is to simply file an Answer denying the claims. That will create live lawsuit and give you time.

If the goal is simply to delay, then just file the answer. It will be months before a trial set.

Also, you can't, and shouldn't, file anything until you have been served.

[upsidedown8]

Some background:

I live in Oregon.

While perusing the public records, I discovered that a JDB has filed a complaint against me for breach of contract in the local Circuit Court. I have not yet been served, although the complaint was filed nearly 2 weeks ago. The Plaintiff is Riverwalk Holdings LLC. Their lawyer is Dxxxxx Gxxxxx of Eugene Oregon. He sent me debt notices in the past but quit trying to collect when I demanded a VOD.

I have prepared a Motion to Dismiss for failure to state ultimate facts necessary to allege a claim for breach of contract. It has a 50% chance of being granted and I know I will be ordered to answer should it be denied. I am hoping to buy enough time to file a CH7 to wipe this debt (and others) away. I will be representing myself in both actions.

I am preparing a Notice of Removal under 28 USC § 1452(a) to file with the local Circuit Court, but I am not sure of the mechanics. I found a copy of a Notice of Removal online, which was filed in an Oregon Circuit Court and have most of the verbiage I need. I did note in that filing that it included another Notice of Removal, apparently filed in Bankruptcy Court. Must I move the BK Court to allow me to invoke 28 USC § 1452(a), or do I simply put the BK Court on notice that I am removing the case from State to Federal jurisdiction?

Can anyone give me an idea of exactly how this process works? Also, since I have not been served by this time, I fear that the process server may toss the Summons in the trash rather than serve it– leaving me to face a default judgment. Any idea how I can deal with that, since I must admit knowledge of the suit to file a Motion to Dismiss? If I have knowledge of the suit, the Court may presume I was indeed served.

Also, is there any point in the Civil trial (aside from judgment) where it is too late to file a Notice of Removal?

Any information shared with my would be greatly appreciated.