Question 1

When is a motion to dismiss the right move?

Accepted Answer

When the complaint, on its face (plus attached documents), fails. Grounds that appear in reported debt-buyer cases: (1) no chain-of-title pleaded — the assignment language attached doesn't specifically identify the alleged debt; (2) statute of limitations apparent on the face — the alleged charge-off date plus the state SOL puts the suit out-of-time; (3) failure to attach a validation notice in an FDCPA-regulated context. If the defect can only be shown with evidence beyond the four corners, you need a summary-judgment motion later, not a 12(b)(6).

Question 2

What is the Twombly / Iqbal standard?

Accepted Answer

Bell Atlantic v. Twombly (2007) and Ashcroft v. Iqbal (2009) are U.S. Supreme Court decisions about how much a complaint must allege under the Federal Rules of Civil Procedure. They apply in federal court. A state court applies its own pleading rules and its own appellate decisions, so this wizard asks which kind of court your motion is filed in and cites these cases only for a federal court. In a California state court, the objection that a complaint does not state facts sufficient to constitute a cause of action is raised by a demurrer (Code of Civil Procedure section 430.10(e)), which this wizard does not prepare.

Question 3

When do I have to file?

Accepted Answer

Most rules require the motion BEFORE filing an Answer, or WITH the Answer. FRCP 12(b) says 'before pleading if a responsive pleading is allowed.' Most states track this. The deadline to respond to the complaint (typically 21-30 days from service) is the deadline to file the motion. If you Answer first without raising 12(b)(6), you typically can still raise it later via a Rule 12(c) motion for judgment on the pleadings — but Rule 12(b)(2)/(3)/(4)/(5) defenses are WAIVED if not raised in the first motion under FRCP 12(h)(1).

Question 4

What if the court denies my motion?

Accepted Answer

You then file an Answer (typically due within 14 days of denial under FRCP 12(a)(4)(A)). The case continues. Denial is not the end — it just means you must answer and move toward summary judgment or trial. Many issues that fail at 12(b)(6) (because they require evidence) succeed at summary judgment after limited discovery.

Question 5

Can I ask for attorney fees?

Accepted Answer

Yes if a fee-shifting statute or contract authorizes it. FDCPA / FCRA / Rosenthal claims shift fees to a prevailing plaintiff — and a winning motion to dismiss makes you the prevailing party. State UDAP / consumer-protection statutes often add fees. Pro-se litigants generally cannot recover attorney's fees as such (you're not paying yourself), but you can recover costs.

Question 6

Can the same grounds support an Answer affirmative defense?

Accepted Answer

Several of the same grounds are also affirmative defenses. Under FRCP 8(c) and its state equivalents, affirmative defenses are generally waived if they are not raised in a responsive pleading, and a denied motion does not preserve them. Whether to raise any particular defense, and which, is a decision for you or your attorney.

Challenge the complaint before you answer.

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FDCPA counterclaim — free

Challenge the complaint before you answer.

This tool cannot produce a document yet

FDCPA counterclaim — free