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IronMan

COURT BRIEF

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To properly defend and competently present your case, I advise that you prepare a Court Brief to submit to the court prior to your court day. You should also serve it upon the opposing party on the day of court before you both appear before the judge to give them a chance to read it. (Unless your laws state otherwise).

There are several different formats of briefs. I've personally developed this one with great success. Makes life so much eaiser, believe me.

I'll forego the cover sheet. Need a sample? I'll email.

-------SECTIONS FOR MY SIMPLE BRIEF ARE:

I. STATEMENT OF THE CASE

[in this section you would sequentially number each paragraph and organize the chronology of events from the earliest to the most recent. One number for one date or anything that is pertinent for the record]

A. THE ALLEGED DEBT

1. On [date - December 2, 2002] Defendant discovered the alleged debt on his credit report from the CREDITJERKS in the amount of $600.00 on an account # of.

2. On [date] Defendant wrote a letter of dispute to CREDITJERKS regarding the alleged debt and requested validation from them and sent it certified U.S. mail. In this letter, Defendant also requested copies of any and all documents that bore Defendant's signature and a history of accounting to validate this alleged debt.

3. On [date] the return receipt for Defendant's letter was received. It showed that Plaintiff accepted the letter on [date].

4. On [date] Defendant received a letter from attorney [sheister's name] representing CREDITJERKS with an accompanying Motion of Summary Judgment. This letter did not provide any of the documents requested.

5. - 6. - 7. so on.....

B. THE DISPUTE

1. - 2. - 3.

II. STATEMENT OF FACTS

[Here is where you tell YOUR story from beginning to end. You have the opportunity to develop the merits of your case. Stick to facts and make it understandable. Make sure to follow the timeline of your Statement of the Case. You are writing a story here for the judge and you do want to shed as much favorable light as possible on your side.]

On or about [date] Defendant applied for a vehicle loan and was diqualified due to the derogatory information contained in Defendant's credit report. Upon inspection, Defendant did not recognize the alleged debt being reported by Plaintiff and was surprised as to it's existence.

Defendant wrote a letter to Plaintiff on [date] which properly requested validation of the alleged debt as authorized in the Fair Debt Collection Practices Act Section 80X(x)(x). Defendant requested copies of any and all documents including cancelled checks, invoices, contracts, or judgment regarding the alleged debt. Defendant dispatched the letter via U.S. Postal Certified Mail (Article #xxxx xxxx xxxx xxxx) on [date].

Defendant's letter was received by Plaintiff and signed for by [name] on [date] as reflected on the return receipt sent to Defendant.

Defendant received a letter from Plaintiff via regular U.S. Postal mail on [date] that included only an eleven page Motion For Summary Judgment. Plaintiff did not include any of the documention Defendant asked for.

So and so forth......

III. ARGUMENTS

A. THE MOTION FOR SUMMARY JUDGMENT SHOULD BE DISMISSED BECAUSE PLAINTIFF LACKS STANDING IN THE COURT

The Motion for Summary Judgment should be dismissed pursuant to NV Law [section here]. The Plaintiff lacks standing in the court and is precluded from bring forth this action.

B. THE MERITS OF THE SUIT SHOULD NOT LIE BECAUSE PLAINTIFF CANNOT PRODUCE ANY PROOF DEFENDANT'S LIABILITY.

1. The Original Contract or Other Instrument

Plaintiff cannot produce any negotiable instrument or any other material evidence to support their claim that Defendant is responsible for the alleged debt. Under Nevada Contract Law (or UCC!!) section XXX, Fair Credit Billing Act, etc.

2. The Affidavit of Lost Document

The Affidavit was submitted by the Plaintiff, not the Original Creditor. This creates a conflict of law regarding the damages to a real party in interest. Under NV Law section xxx....

[if including the counter suit]

C. THE PLAINTIFF VIOLATED THE FAIR DEBT COLLECTION PRACTICES ACT BY NOT PROPERLY RESPONDING TO DEFENDANT'S REQUEST.

1. Plaintiff violated FDCPA section 809(B) by not responding within the 30 days prescribed by law.

[ and so on....]

IV. CONCLUSION

For the forgoing reasons, the Motion for Summary Judgment should be dismissed. Defendant should be awarded the statutory monetary awards for each aforementioned violation of the FDCPA.

V. PRAYER FOR RELIEF

Defendant hereby prays for removal of the derogatory credit item from Defendant's credit files and for relief from this alleged debt. Defendant further prays for reimbursement of court courts in the amount of $xx.xx, lost time from work in the amount of $xxx.xx, [and other remedies as allowed by statute, etc]

DATED:______________________

Respectfully Submitted,

_______________________

John Q. Consumer

[Edit by IronMan on Saturday, February 8, 2003 @ 06:22 AM]

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Mr. Ironman;

That is good advise. Do you know where I can find out if I can use Opening Court Brief for my case? I'm in Nevada and know our laws more stringent than California's. Unfortuntely, Nevada does not have an "assignee of records" law. But after extensive research of caselaw and Civil code of procedures I have found something interesting.

I have an attorney progressively trying to sue me for medical collections. He's representing a CA and does for many CA's. I've been summoned, I responded, he now wants mjs. In preparing my defense I've found the Heintz v. Jenkings,514 U.S. 291(1995) case which states "Attorneys or law firms that engage in traditional debt collection activities (sending dunning letters, making collection calls to consumers) are covered by the [Act], but those whose practice is limited to legal activities are not covered". In essence, the Act applies to attorneys who "regularly" engage in consumer debt collection activity. When that activity consists of litigation they have to follow the FTC, FCRA & FDCPA rules!!

When I responded to summons asking them to validate the debts in question, they never did and asked for msj stating I have to show they aren't mine. All they produced was a print out of a couple of bills. There was no contract, no signature, no agreement that bears the signature of the alleged debtor,no certified copy of any contract(s) bearing our signature(s), authorizing their client, to assign or sell the accountfor the purpose of collection. And this is the first time they have shown anything! It seems like a lot is missing for validation. Plus the fact they kept call me at work.

I haven't gotten my court date yet, still playing the response game. Can I use any of your formats for response/answers to summons or just use those for Briefing before Judge? I'll email you my address for further response is it's o.k.

Thanks for your help.

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Yeah, I can't post the exact format here. I emailed you something for Nevada's Civil Procedure that covers assignees or joinder of parties. All I can do is summarize the key sections as far as how to start on it. Plain-Text only sucks sometimes. Wish we could have attachement links here.

Nevertheless, attorneys who regularly engage in debt collection are bound by the FDCPA rules!!! If the attorney works for the CA, then he too may be barred from bringing action in the court. My senses tell me that he has no standing. If they don't have original document, then it's non-valid. They have NOTHING, ZILCH, BUPKIS.

From what you've stated so far, it sounds like this jerkoff attorney is used to muscling people using this tactic. T'hell with him, time to get tough. Hell, I'd find and file a damage claim for him misusing the justice system to harrass or intimidate you.

Sorry I can't post the brief here in the formatted form since it'll come out funky. Courts like to see things formatted a certain way. Rules of court are different state to state. Hopefully the example above will shed some light on how to format it. You'll need both this one (TO ANSWER) and another one (OPENING) to state your FDCPA violations, unless you file the suit in the same action, then you would outline your merits and your arguments accordingly in one brief titled (Defendant's Answer and Counter Claim). Probably would be a 15 pager at least.

BTW- I forgot to mention to make copies of statute sections and case law summary and attach to back of brief. This will save the judge some work and will be in your favor. Having your sheot together gives you an edge.

Good Luck!

[Edit by IronMan on Saturday, February 8, 2003 @ 05:05 AM]

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I've edited the breif. Good luck.

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