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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 88662
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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I have a case where a debt collector is trying to sue a non-existent

Customer Question

I have a case where a debt collector is trying to sue a non-existent company in va. Also trying to claim a personal guarantee. Evidence submitted was claimed as a contract, but is actually a credit application. Guaranty is related to a "merchant agreement" that was not included in plaintiff's bill of partuclars. Only a signature page of the merchant application.

Company closed in January 2012 and had no outstanding debt owed to plaintiff according to records. Two debt collection agencies are trying to collect from former president holding him personally liable but we don't know for what without proper evidence.

filed a motion to dismiss. Opposing party received notice of hearing, no response, no opposition filed. Opposing party did not show up at hearing. District court judge denied motion to dismiss and insisted that an attorney must be present because suit is filed against company. We knew that, but the company DOeS NOT exist, therefore, who would take this on when they know they would not get paid. Proof of closed company was provided. Judge refused to allow defendant to appear as pro se. Trial date is August 7.

This seems as unjust and unfair practice. The motion to dismiss was filed in lleu of the grounds of defense. There can be no viable defense other than the fact that suit was filed against a non-existent company. Plaintiff claims personal liability for a corporation's debt. This is debt is completely unknown, former officers have never received any written notice personal or otherwise. Having trouble finding an attorney that will take this case.

What next? With judge insisting that an attorney be present I am afraid of contempt of court. Also don't have funds to fight such a frivolous lawsuit that has no evidence that supports the plaintiff's claim. Judge is completely unreasonable when considering the motion to dismiss based on lack of evidence to maintain an action pursuant to VA Codes.

What next?
Submitted: 11 months ago.
Category: Legal
Expert:  Law Educator, Esq. replied 11 months ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking.

I am sorry to hear that you are stuck with this mess, but I am afraid as the judge told you as the corporation was sued, it must have an attorney or it would be not just contempt of court, but unauthorized practice of law. You could file a motion to dismiss ONLY on behalf of the president personally stating that the president is protected by the corporate veil and also there is no personal guarantee signed if the president was named personally.

However, the motion to dismiss can only be on behalf of the president and not the company to avoid the unauthorized practice of law claim. As the company is non-existent you can choose to get an attorney to represent the company and file an answer, most will take a simple motion to dismiss case fairly reasonably. Your other choice is if the president is personally being sued is to file the motion to dismiss the president only and let them get a judgment against the non-existent company because they will have a judgment they can never collect.

These are your legal options in a case like this I am afraid.




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Customer: replied 11 months ago.

Well, that was what was filed. A motion to dismiss against the president personally -- the company does not exist. I don't think this particular judge read through the proceedings. It is the same judge that held me personally liable for a corporate debt on another case that also had no bearing. Perhaps that was unclear to the court.


 


Can we file a motion to continue the case for more time to find an attorney?


 

Expert:  Law Educator, Esq. replied 11 months ago.
Thank you for your response.

You could file a motion to continue to find an attorney, but if the court has already given you time to come back, they may not be very happy or receptive about granting the time. It is best for you to get an attorney and if they need more time, then they would file the continuance based on him just getting the case and needing time to prepare, which is something the court almost always grants.
Customer: replied 11 months ago.

Ok, so the attorney we find should file the continuance?


 

Expert:  Law Educator, Esq. replied 11 months ago.
Yes, if you want a better chance of getting one they should.
Customer: replied 11 months ago.

One more question. The court has given 7 days to find an attorney. Not having any luck since this is against a non-existent company and a suit against the individual is questionable based on evidence submitted.

Expert:  Law Educator, Esq. replied 11 months ago.
Thank you for your response.

You can ask the court for additional time to find an attorney and present evidence to the court of the attorneys you have contacted and also you should file a motion to renew the motion to dismiss the individual only in their individual capacity.

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