How do I Word my Answer?

[distressed]

Okay, here's what I've got. How to I close the Answer? Do I ask for a

dismissal or do nothing? And to Whom do I address it?

" I have no recollection of this account and do not believe it to be valid.

And in any event, the plaintiff’s attorney is bringing forth a time-barred suit

as it is beyond the Statute of Limitations for the State of Massachusetts.

Therefore the complaint is barred by the applicable Massachusetts Statute

of Limitations, including, but not limited to Chapter 260, Section 2.

In addition, according to the documentation of the plaintiff’s attorney – a

letter dated September 16, 2002 from Kream and Kream and the

Statement of Small Claim and Notice of Trial – the attorney and/or the

plaintiff have broken federal law (Fair Debt Collection Practices Act) by

misreprepresenting the amount they claim is owed.

Therefore… "

For those of you who have been following - if you are an attorney in Mass.

you do not need to be licensed as a Collection Agency.

About standing in court - still don't really know - I'm hoping to get an answer

from the court directly.

This attorney has broken at least 2 federal laws - misrepresenting the

amount owed, not including my right to dispute the debt on the one letter I

received and maybe 3.

Also - on the small claims court summons, "NCO Assignee of Novus" is

actually listed as the plaintiff, and then the attorney's office is listed.

[Capepuffin]

This is some of what is actually written in my complaint which was filed in Federal Court.

(Maybe some of this will help you with the disputed amount of the debt)

Plaintiffs bring this action to secure regress against unlawful credit and collection practices engaged by defendents K&K , doing business as K&K, and NCO (collection agency). Plaintiffs allege violation of the Fair Debt Collection Practices Act, 15U.S.C. ss1692 et seq. ("FDCPA"), and state law.

(So in your instance K&K are also considered to be doing business as 'NCO' the creditor, as well.)

Exhibit E is the (Initial Letter that was sent to me with a lower amount of the debt that was owed, was $3,200.)

The amount claimed in Exhibit F(the Plaintiffs 2nd letter I received has a higher amount)is $4,000.00.

On information and beleif, the difference between the amount stated in Exhibit E and the amount stated in Exhibit F consists of court costs that had not been awarded by any court.

Dunning for unawarded attorney's fees and court costs is improper and violates 15 U.S.C. ss1692e, 1692e(2), 1692f, 1692f(1) and (in the case of the intial letter) 1692g. Veach v. Sheeks, No.02-1149, --F.3d --,2003 WL 102992 (7th Cir. Jan 13,2003); Shula v. Lawent, 01 C 4883, 2002 WL 31870157 (N.D.III. Dec 23, 2002).

It is the policy and practice of K&K to dun for unawarded attorney's fees and court costs.

I hope that your day in court goes in your favor. I will be thinking of you and hoping that it goes your way. My court date is in April with these scumbags! My lawsuit against them is seperate from theirs against me. I still have to represent myself in court on their lawsuit against me!

[Edit by capepuffin on Thursday, February 27, 2003 @ 09:37 PM]

[distressed]

I'm so glad you posted - I'll bring that section of law with me should I need it.

Thank you.

Also - I talked to someone today at the Massachusetts Division of Banks

who told me to immediate call the FTC and file a complaint (I did) and

mentioned that he had "heard of" them before. It wasn't in a good sense. I'm

going to call the AG and file a complaint there too, I just haven't had the time.

I can't wait for this to be over. If I win, I'll turn right around and sue them. And

if I lose, I'll appeal, force them to validate, etc., win the appeal and then turn

around and sue their asses again!

[Capepuffin]

Go for it! Definately appeal if it is not in your favor! All of the power to you! We are all behind 100%! I filed many complaints against them months ago! Also file a complaint with the MASS Bar Association!

GOOD LUCK!!!!!!!!!!!

[IronMan]

cape's got his sheot together.

Dis - The answer sounds more like a declaration, which is OK too....at least you're answering. I think there's an example brief in the "Lawyer in the House" or "Small Claims Results" where I posted an example format. Should follow that.

For court purposes, your language should be more to the point. Your drawing a legal conclusion in your second paragraph. Being more to the point is what I illustrate below:

YOURS

" I have no recollection of this account and do not believe it to be valid.

And in any event, the plaintiff’s attorney is bringing forth a time-barred suit

as it is beyond the Statute of Limitations for the State of Massachusetts.

Therefore the complaint is barred by the applicable Massachusetts Statute

of Limitations, including, but not limited to Chapter 260, Section 2.

In addition, according to the documentation of the plaintiff’s attorney – a

letter dated September 16, 2002 from Kream and Kream and the

Statement of Small Claim and Notice of Trial – the attorney and/or the

plaintiff have broken federal law (Fair Debt Collection Practices Act) by

misreprepresenting the amount they claim is owed.

Therefore… "

MINE (In a simple Declaration format)

Now comes Defendant Pro Se, Dis R. Espected ("Defendant"), and in answer to the Complaint of Plaintiff Kream and Korn ("Plaintiff"), states as follows:

1) PLAINTIFF'S COMPLAINT IS BARRED BY LACHES

A) Massachusetts Statute of Limitations Chapter 260, Section 2. [THIS IS THE TIME-BARRED PART]

Massachusetts Statute Of Something Ch 2 § 393

2) PLAINTIFF'S COMPLAINT IS BARRED BY THE DOCTRINE OF UNCLEAN HANDS

Plaintiff's complaint, and each claim that seeks equitable relief therein, is barred by the doctrine of unclean hands arising from Plaintiff's violations of the United States Fair Debt Collections Practices Act [15 U.S.C. XXXX]

A) Fair Debt Collections Practices Act

1) Section xxx(x) Validation [15 U.S.C. XXXX(X)]

Plaintiff did not properly validate the alleged debt after receiving Defendant's notice of dispute. Plaintiff admitted to Defendant that a contract or other writing did not exist. Plaintiff did notproduce any original contract or facsimile therof, that explained Defendant's rights, duties or liabilities in the performance of the contract with the Original Creditor. Plaintiff's failure to produce such documents has impeded Defendant's ability to verify that the Defendant is obligated to perform in any manner or has any other obligation to perform within the framework of the contract.

2) Section xxx(x) Unauthorized Amount [15 U.S.C. XXXX(X)]

Plaintiff failed to produce any accounting history such as payments made or interest accrued. Defendant cannot materially verify his fiduciary obligation to Plaintiff.

DAMN! IT'S LATE....gotta go. You get the idea? Go to Small Claims and Lawyer in the House to see further examples.

Sorry can't finish all.

Cheers!

[Edit by IronMan on Friday, February 28, 2003 @ 02:09 AM]

[Capepuffin]

Dis, What happened? How did you make out?

[calawyer]

What Ironman proposes is usually at the end of an answer to a complaint under the heading "affirmative defenses". This is where you spell out every defense you can think of.

In addition, most states' procedural rules require a defendant to answer the allegations of the complaint. In some states you can do this by using a "general denial". In other states you must go paragraph by paragraph through the complaint and either admit the allegations, deny them or state that you are without facts sufficient to form a belief as to the truth or falsity of the allegation (and, on that basis, you then deny the allegation). This stuff is tricky and varies from state to state. Language used in one state may seem odd and out of place in another state. Anyone appearing in pro per should get a copy of a nolo publication for your state or seek other "state specific" advice on how to respond.

[IronMan]

That's right.I forgot to put in the paragraphs beforehand. What I get for rushing...Sorry.

Before Affirmative Defenses, you'd want to itemize each 'count' or complaint under the "Now Comes" sentence as:

THESE ARE GENERAL DENIALS AND MAY NOT APPLY IN YOUR CASE

Plaintiff's complaint consists of paragraphs containing more than one single allegation. Defendant DIS specifically denies those allegations and all allegations, claims or assertions of Plaintiff's Complaint that are not specifically admitted or denied.

1. In response to Paragraph 1 of the Complaint, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 1 of the Complaint, and on that basis, denies generally and specifically each and every allegation contained therein.

2. In response to Paragraph 2 of the Complaint, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 1 of the Complaint, and on that basis, denies generally and specifically each and every allegation contained therein.

3. In response to Paragraph 3 of the Complaint, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 1 of the Complaint, and on that basis, denies generally and specifically each and every allegation contained therein.

AFFIRMATIVES START HERE

1) BARRED BY LACHES

A.

B.

2) UNCLEAN HANDS

A.

B.

PRAYER STARTS HERE

WHEREFORE, Defendant prays as follows:

1. That Plaintiff take nothing by virtue of the Complaint and that this action be dismissed entirely;

2. For costs of defending this suit and attorney's fees herein incurred

3. For such other and further relief as the Court may deem just and proper

DATED: MONTH 00, 2003

By:

____________________________________

DIS A. CONSUMER, Defendant

[Edit by IronMan on Tuesday, March 4, 2003 @ 03:31 PM]

[calawyer]

I wasn't really focused on the fact that this was in the small claims forum when I posted about answers. Many states have forms a defendant can fill out for a small claims answer. In superior court or where a more formal answer is required, everyone should get state-specific legal advice to see what the practice is. In some states you can use something called a "general denial" (where you just deny everything in the complaint and deny that plaintiff is entitled to relief) and in others you must respond to each paragraph of the complaint. I have learned that the language differs from state to state and it is important to get it right.

[IronMan]

That's for sure! Which is why I had to go through two appeals when I first started to litigate on my own when I couldn't afford to even pay attention!

This year should be it for me as far as having to deal with this FDCPA/FCRA court crapola. Now I can pay attention and I have a bulldog atty on my side if necessary.

If you really can't afford or find an atty, an alternative might be to try and absorb the jists of how to write answers, briefs, etc. and then find a legal-aid place to critique it for you.

Usually there's legal aid or Pro Se clinics that offer 15-20 mins of free time for different types of cases at various courthouses. They're usually 1st come, 1st serve and only open on certain days. Sometimes staffed by attys, but mostly paralegals to assist you in what to do and how to file. Court should have info on that.

The web's a great resource. You'll just have to get creative in your search terms to get good examples. That's how I did it!

Cheers!

[Edit by IronMan on Tuesday, March 4, 2003 @ 11:14 PM]

[distressed]

Oh, the saga shall continue...

I'm such an @sshole! I had the wrong freaking day - all that preparation and the night before court I'm reviewing everything and feeling confident and then I look at the summons form and 2/28 is crossed out and 2/27 is the actual date. #%&*@%!!!! So I went to court and talked to a clerk and had to fill out a form for a hearing to reverse the default - the woman I talked to said the judge usually allows it if it's the first time. She told me she knows the lawyer that represents people like K&K in their Small Claims court and that he's nice/reasonable. She didn't think I f*cked up that bad, but now I'm completely distressed. I'm sure everyone's life is busy right now, but it's just so damn hard trying to worry about this as well as making ends meet in this economy. The date before the judge is set for 3/27 and I sent a copy of the form to the attorney already. At least this gives me time to work on validations, etc.

I have been trying to find/use some of the free legal services around Boston and they suck. You can never get anyone on the phone and when you do, they don't really know what they're talking about. Gotta work on that, too.

Thanks to everyone for their support, I'll definitely keep you posted.

[masonuc]

You should have filed a Motion to Dismiss instead of an Answer. You might want to file one now, or a motion for summary judgment.

[distressed]

why? I didn't file the answer yet anway. Now I have to wait to see if I'll get

the default reversed so I can have another Small Claims trial/hearing.