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Preparing Answer....need opinions


TZ
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Hopefully, someone here can offer a few opinions on my situation. Sorry if this is too long.

I was served with a Complaint a few days ago. There was only a Complaint. There was NO Summons included. I checked with the court and there is a Summons in the case file. There is no proof of service in the file as of yet either.

Although I technically haven't been summoned to answer yet, I am working on the Answer. I don't want to give them any chance at a default judgment.

This case involves an alleged credit card debt, approximately 1500, that was charged off. The debt was bought by a CA ( the Original Creditor balance on the credit report shows 0 so I assume it was bought instead of assigned ) . The suit has been brought by the CA. The DOLA on the debt is 10/01. The SOL in SC is 3 years.

Included with the Complaint is the Plaintiff's supporting evidence.

1) A photocopy of a GENERIC credit card agreement. There is no reference to me or an account number on the agreement. There is no contract.

2) A page on the CA's letterhead detailing what they feel I owe. This shows the original debt at chargeoff and also lists the interest they feel I owe. Again, there is nothing from the Original Creditor. No statements are included.

3) An affidavit from the CA stating that their records show I owe that amount. Again, nothing from the Original Creditor.

Obviously they are filing this hoping for a default judgement. There seems to be a lack of any supporting evidence for their claim. I think I might have a decent chance at winning this if it went that far so I want to make the Answer as good as possible.

Does anyone have any ideas about any Affirmative or Absolute defenses that I might want to include?

Anyone see any issue with the lack of service with the Summons?

Does the mini-Miranda need to be on the Complaint? If it's not, would this be a violation of the FDCPA?

Any information or advice would be greatly appreciated.

TIA,

TZ

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The mini-miranda does not have to be on complaint, but I might DV the CA anyway, just to see what happens.

Here is what I would put in an answer:

1. Deny having information and knowledge sufficient to form a belief about the truth of the matter alleged in every paragraph of the complaint ( ecept your name an address).

2. As a first defense, the court lacks subject matter jurisdiction.

3. As a second defense, the court does not have personal jurisdiction over you

4. As a third defense, the action is barred by the applicable statute of limitations.

5. As a fourth defense, the plaintiff does not have the capacity to sue ( in case they are suing without being licensed in SC).

6. As a fifth defense, the plaintiff fails to state a cause of action on which relief against you can be granted.

You might want to counterclaim for a FDCPA violation, if you think you have one.

For a prayer of relief, ask the court to dismiss the complaint, give you judgment, award you costs, fees and such other relief as the court finds just and proper.

Get you answer notarized and send a copy to the attorney and the original to the court with an affidavit saying when you sent a copy to the attorney and that you sent it by first class mail to teh address listed on the complaint.

This should slow up the plaintiff. You will want to make discovery demands, but we'll talk about that later.

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The mini-miranda does not have to be on complaint, but I might DV the CA anyway, just to see what happens.

Here is what I would put in an answer:

1. Deny having information and knowledge sufficient to form a belief about the truth of the matter alleged in every paragraph of the complaint ( ecept your name an address).

2. As a first defense, the court lacks subject matter jurisdiction.

3. As a second defense, the court does not have personal jurisdiction over you

4. As a third defense, the action is barred by the applicable statute of limitations.

5. As a fourth defense, the plaintiff does not have the capacity to sue ( in case they are suing without being licensed in SC).

6. As a fifth defense, the plaintiff fails to state a cause of action on which relief against you can be granted.

You might want to counterclaim for a FDCPA violation, if you think you have one.

For a prayer of relief, ask the court to dismiss the complaint, give you judgment, award you costs, fees and such other relief as the court finds just and proper.

Get you answer notarized and send a copy to the attorney and the original to the court with an affidavit saying when you sent a copy to the attorney and that you sent it by first class mail to teh address listed on the complaint.

This should slow up the plaintiff. You will want to make discovery demands, but we'll talk about that later.

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The mini-miranda does not have to be on complaint, but I might DV the CA anyway, just to see what happens.

Here is what I would put in an answer:

1. Deny having information and knowledge sufficient to form a belief about the truth of the matter alleged in every paragraph of the complaint ( ecept your name an address).

2. As a first defense, the court lacks subject matter jurisdiction.

3. As a second defense, the court does not have personal jurisdiction over you

4. As a third defense, the action is barred by the applicable statute of limitations.

5. As a fourth defense, the plaintiff does not have the capacity to sue ( in case they are suing without being licensed in SC).

6. As a fifth defense, the plaintiff fails to state a cause of action on which relief against you can be granted.

You might want to counterclaim for a FDCPA violation, if you think you have one.

For a prayer of relief, ask the court to dismiss the complaint, give you judgment, award you costs, fees and such other relief as the court finds just and proper.

Get you answer notarized and send a copy to the attorney and the original to the court with an affidavit saying when you sent a copy to the attorney and that you sent it by first class mail to teh address listed on the complaint.

This should slow up the plaintiff. You will want to make discovery demands, but we'll talk about that later.

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I to am trying to file an answer. Pretty much the same situation as this post. However, the SOL is 6 yrs in Il and I am only half way there. My debt was sold to the CA and they have assigned an attorney. I never validated this debt. I know that I am to send in a Validation request. I am running into not knowing how to answer. Since I have never had any communication with any of the plaintiffs.

1 answer I put was

I am not familiar with ******I am not aware if they are authorized to do business in the state of Illinois nor if the assignee is licensed and bonded. I have never been contacted

by either of the parties in mention of this debt.

2. I am not aware of this debt being mine. I have never been shown proof of debt and have no

acknowledgment of this debt with said amount.

That is all that I can come up with.. and I feel this is just good enough

can anyone critique this for me?

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1. You have to admit or deny the plainitff's allegations in teh complaint when you answer. Is he right or not? Do you know? If not, you say you don't have knowledge or information enough to agree or disagree with the allegations. Essentially, you are denying his allegations

2. Subject matter jurisdiction - the court does not have power to hear this type of case

3. personal jurisidiction - they didn't serve you properly

4. SOL - the plaintiff is time barred from bringing the action ie it's too old

5. lack of capacity - the plaintiff, if it is a corp or a CA, isn't licensed in the state, or have its trde license, so it cannot sue in your court.

6. Fail to state a casue of action - it's a legal argument that says even if everything they say is true, there is no causse of action, or, that they cannot/will not be able to prove a case against you.

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Another question

When I was served I was served at 10:10 pm. My daughter was actually served and she never signed anything. However, he did have another person in the car. Was this considered legally served?

There's a misconception that you have to sign for the papers. Not true. At a Kroger's store I had an extremely obese woman actually jumped up on the checkout counter and climbed over other customers to get a way from me. I just threw the papers at her and left. It was good service. If you daughter didn't answer the door they would have probably just taped it to the door. Also good service.

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Hopefully, someone here can offer a few opinions on my situation. Sorry if this is too long.

I was served with a Complaint a few days ago. There was only a Complaint. There was NO Summons included. I checked with the court and there is a Summons in the case file. There is no proof of service in the file as of yet either.

Although I technically haven't been summoned to answer yet, I am working on the Answer. I don't want to give them any chance at a default judgment.

This case involves an alleged credit card debt, approximately 1500, that was charged off. The debt was bought by a CA ( the Original Creditor balance on the credit report shows 0 so I assume it was bought instead of assigned ) . The suit has been brought by the CA. The DOLA on the debt is 10/01. The SOL in SC is 3 years.

Included with the Complaint is the Plaintiff's supporting evidence.

1) A photocopy of a GENERIC credit card agreement. There is no reference to me or an account number on the agreement. There is no contract.

2) A page on the CA's letterhead detailing what they feel I owe. This shows the original debt at chargeoff and also lists the interest they feel I owe. Again, there is nothing from the Original Creditor. No statements are included.

3) An affidavit from the CA stating that their records show I owe that amount. Again, nothing from the Original Creditor.

Obviously they are filing this hoping for a default judgement. There seems to be a lack of any supporting evidence for their claim. I think I might have a decent chance at winning this if it went that far so I want to make the Answer as good as possible.

Does anyone have any ideas about any Affirmative or Absolute defenses that I might want to include?

Anyone see any issue with the lack of service with the Summons?

Does the mini-Miranda need to be on the Complaint? If it's not, would this be a violation of the FDCPA?

Any information or advice would be greatly appreciated.

TIA,

TZ

The summons and complaint have to have the mini-Miranda. If it is the initial communication, it has to have the 30 day notice or it must be mailed to you within 5 days. I think there's an FTC letter on that.

For the summons, they have a certain number of days to serve you after filing. Check your state's rules of civil procedure to find out exactly how that works. There may be an issue if you didn't acutally receive the summons. Find out if there is a hearing or court date scheduled yet.

Check your state's civil rules regarding claims based on contracts. In Ohio, you would file a motion to dismiss pursuant to civil rule 10(D), which is that the failed to attach a copy of the contract to the complaint. It works extremely well. The theory is that without the contract, your defense is harmed since you cannot determine the interest rate and if there are any defects etc.

You should also file a motion to strike the affidavit as hearsay. I posted an article on hear a while back written by debt collection attorneys who work specifically for JDBs and the problems they were having in court.

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