Is this a good format for an Answer to Complaint?

[iviguy]

I need to answer a complaint and motion to dismiss based on a failure to validate the debt by the attorney. I have several threads on this board relating to this but trying to format the letter is a real pain in the butt. I found this example letter, somewhere... can't remember where, and think it might be a good format to follow.

The plaintiff did not validate the debt, did not produce any documents of proof that I signed a contract, and ignored my second letter stating that fact. He followed with a suit and now I have to answer to that. So if this format doesn't look right, any help in pointing me to another format would be helpful. I am not good at understanding all the lingo but if I have some format to follow I can do it. Thanks in advance.

DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S AFFIDAVIT AND MOTION TO DISMISS

Now comes Defendant, xxxxx, and respectfully moves the court to strike the Affidavit of xxxxxxxxxxxxx.,. Contingent upon granting Defendant’s Motion to Strike Affidavit, Defendant respectfully moves pursuant to the Federal Rules Of Civil Procedure, U.S. Code, Rule 901. Requirement of Authentication or Identification:

(a) General provision. - The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the

matter in question is what its proponent claims.

Plaintiff can prove no set of facts nor evidence supporting a claim entitling Plaintiff to relief and that the case be dismissed with prejudice.

Memorandum

Defendant respectfully submits this motion to strike Plaintiff’s affidavit for the Court’s consideration. The following facts are significant to this motion.

Facts

1. As alleged in Plaintiff’s Complaint and the attached Affidavit of Plaintiff’s representative, Defendant owes Plaintiff a sum certain due an alleged debt.

2. Plaintiff failed to attach a copy of the original written instrument as an exhibit to the Complaint and failed to recite relevant information. In the case of Sollami v. Eaton, 2002 Ill. Lexis 331, Docket Nos. 91284, 91378, it states:

"The court also reviewed the requirement that the affidavit attach sworn or certified copies of records upon which the affiant relied. Plaintiff argued that this requirement was merely technical. But the court disagreed. ". . . [T]his requirement is inextricably linked to the provisions requiring specific factual support in the affidavit itself . . . We are unwilling to allow the simple production of an expert’s conclusion ‘to become a free pass to trial.’" In this case, striking plaintiff’s expert affidavit was upheld because of the failure to attach the pertinent records. Plaintiff thus had no expert affidavit."

3. Although Plaintiff claims to “have access to records pertaining to the account”, Plaintiff has not attached those records, and has attached an affidavit by Lynn Hale in lieu of a written instrument or any records pertaining to the account.

4. On information and belief, the affiant, xxxxxxxxxxx, was never employed by the original creditor.

5. On information and belief, the affiant, xxxxxxxxxxxxxx, was never in a fiduciary or any other position to examine the original creditor’s open books for the account of the alleged debt .

6. On information and belief, the affiant, xxxxxxxxxxxcan not have personal knowledge of the original creditor’s creation, maintenance, issuance, and tracking of the billing or statements.

Analysis

Although Plaintiff claims to have access to “records” pertaining to Defendant’s alleged debt, Plaintiff refused to comply with rules of civil procedure which states:

“When a claim or defense is founded upon a written instrument, the same may be pleaded according to legal effect, or may be recited at length in the pleading, or a copy may be attached to the pleading as an exhibit.”

The attached affidavit does not suffice for a written instrument and Plaintiff’s affidavit constitutes heresay and is not admissible under Oklahoma Rules of Evidence.

Conclusion

Federal Rules of Civil Procedure requires a copy of a written instrument be attached to the Complaint when it is the basis of the Plaintiff’s claim. When not attached, a valid reason for its omission must be given. Plaintiff’s claim that it has access to Defendant’s records when it does not may constitute a “misrepresentation” and as such, evidence of further violations of the Fair Debt Collection Practices Act.

Plaintiff’s Complaint alleges that Defendant is in default under the terms and conditions of an alleged written instrument, but fails to disclose the terms and conditions under which Plaintiff acquired said instrument.

Plaintiff alleges that this written instrument forms the basis for Plaintiff’s right to sue and demand judgment against Defendant.

The written instrument is the best evidence of any transactions that allegedly occurred between Defendant and Plaintiff or Defendant and another creditor. Without the written instrument, Plaintiff cannot prove what terms and conditions Defendant allegedly defaulted on. Additionally, Defendant is harmed because Defendant does not have an opportunity to raise affirmative defenses that may rise from any defects in the written instrument.

Motion To Strike and Dismiss submitted and filed this _____ day of May, 2005.

[Recovering Attorney]

That is not an answer to a pleading. And, by suing you before validating, someone may have violated the FDCPA, but that is not an affirmative defense: that is more of a counterclaim.

You need to admit or deny the allegations in the complaint, and set up what defenses you have to the debt, then set forth your counterclaim. Typical defenses are : lack of legal capacity to bring the action, statute of frauds, statute of limitations. The affidavit, attached to the complaint, does nothing more at this point than amplify the complaint. It is not being offered as competent proof. At least not yet. So, answer the complaint and demand the othe rside produce the affiant so you can depose her. That is the way you attack the affidavit. At least in my book.

[copperarab]

Hi iviguy!!

I used this EXACT Motion To Strike a month ago..I was nailed by the attorney (opposing) and my Motion was denied by the judge.

First, I filed too late which is not the same as in your case, BUT..... and here is WHERE YOU NEED TO CHANGE A FEW WORDINGS..I was nailed for not properly STATING A CLAIM. Your words are ALL correct, but you need to specifically STATE one of the civil claims...

According to Federal Civil Rules, Rule 901, Plaintiff failed to state a claim which relief can be granted.

You HAVE to make sure that these EXACT words are fit into your opening statement!!!!!!!!!!!!!!

I didnt, and was nailed for it. SO PLEASE do so!!!!!!!!!!

Good Luck!!!

[iviguy]

That is not an answer to a pleading. And, by suing you before validating, someone may have violated the FDCPA, but that is not an affirmative defense: that is more of a counterclaim.

You need to admit or deny the allegations in the complaint, and set up what defenses you have to the debt, then set forth your counterclaim. Typical defenses are : lack of legal capacity to bring the action, statute of frauds, statute of limitations. The affidavit, attached to the complaint, does nothing more at this point than amplify the complaint. It is not being offered as competent proof. At least not yet. So, answer the complaint and demand the othe rside produce the affiant so you can depose her. That is the way you attack the affidavit. At least in my book.

See, this is where I think I am screwed. I don't have a defense to the debt except that I don't believe that the attorney validated the debt or produced sufficient evidence, ie.. signed contract, explanation of how and what charges were added to make a total, etc... So I think that is a pretty weak defense and at best only lengthens the amount of time before I get a judgement. Maybe it's more of a defense then I believe but I donno. If I can get the complaint dismissed then I will hopefully be in a better position to settle.

Does the Attorney have the right to answer my motion to dismiss or does the Judge at that point decide to keep or dismiss the case?

Am I wrong that I have a weak defense?

[iviguy]

Hi iviguy!!

I used this EXACT Motion To Strike a month ago..I was nailed by the attorney (opposing) and my Motion was denied by the judge.

First, I filed too late which is not the same as in your case, BUT..... and here is WHERE YOU NEED TO CHANGE A FEW WORDINGS..I was nailed for not properly STATING A CLAIM. Your words are ALL correct, but you need to specifically STATE one of the civil claims...

According to Federal Civil Rules, Rule 901, Plaintiff failed to state a claim which relief can be granted.

You HAVE to make sure that these EXACT words are fit into your opening statement!!!!!!!!!!!!!!

I didnt, and was nailed for it. SO PLEASE do so!!!!!!!!!!

Good Luck!!!

What does that mean that the plaintiff failed to state a claim which relief can be granted? I guess I need to find out what defines "state a claim".

[iviguy]

Hi iviguy!!

I used this EXACT Motion To Strike a month ago..I was nailed by the attorney (opposing) and my Motion was denied by the judge.

First, I filed too late which is not the same as in your case, BUT..... and here is WHERE YOU NEED TO CHANGE A FEW WORDINGS..I was nailed for not properly STATING A CLAIM. Your words are ALL correct, but you need to specifically STATE one of the civil claims...

According to Federal Civil Rules, Rule 901, Plaintiff failed to state a claim which relief can be granted.

You HAVE to make sure that these EXACT words are fit into your opening statement!!!!!!!!!!!!!!

I didnt, and was nailed for it. SO PLEASE do so!!!!!!!!!!

Good Luck!!!

Ok, I found the Federal Civil Rules and looked at Rule 901. So if I am understanding this correctly, since he did not validate, he violated the Requirement of Authentication, General provision (a). Is that correct? So my defense is going to be based around my attempt to have him validate the debt and his refusal to do so which violates this rule. Can it really be that easy?

[copperarab]

LOL..Dear dear iviguy...NO, it's never that easy..even if you file your ANSWER to the summons AND file a SEPERATE Motion To Dismiss based on your letter above AND what I told you to add in, you may not get it dismissed. AND even if the judge DID dismiss the case, if he does it w/o prejudice, the attorney can refile against you.

If you are going pro se and plan to fight this, prepare for a possible long battle. I am 4 months into mine as a pro se'er and it has been a crazy 'Motioning' battle to date.

You need to DENY all the allegations in your Answer to the summons. Basically "Defendant is without sufficient knowledge or information sufficient to form a belief as to the truth of these allegations contained herein, therefore leaves the Plaintiff to provide proof. Defendant demands strict proof thereof."

If the allegations in the summons/petition are numbered, you need to number each of your ANSWERS to each numbered allegation.

So basically, you need to ANSWER that summons, then file a seperate Motion To Dismiss based on your above letter (with a few changes like I said)

I did not personally file any counterclaims etc.so I cannot help you there. You can USE the Federal Law above that you have typed as an affirmative defense. (no validation)

good luck!!

[hoapres]

Were you sued in Federal court or a state court that uses FRCP ?? You need to become familiar with your jurisdiction's pleading rules.

A motion to strike and motion to dismiss are -(probably) - considered a responsive pleading and not an answer. Also, the motion to strike and motion to dismiss may have to be filed as separate motions. You also need to check the terminology a motion to dismiss may be called a demurr.

[iviguy]

LOL..Dear dear iviguy...NO, it's never that easy..even if you file your ANSWER to the summons AND file a SEPERATE Motion To Dismiss based on your letter above AND what I told you to add in, you may not get it dismissed. AND even if the judge DID dismiss the case, if he does it w/o prejudice, the attorney can refile against you.

If you are going pro se and plan to fight this, prepare for a possible long battle. I am 4 months into mine as a pro se'er and it has been a crazy 'Motioning' battle to date.

You need to DENY all the allegations in your Answer to the summons. Basically "Defendant is without sufficient knowledge or information sufficient to form a belief as to the truth of these allegations contained herein, therefore leaves the Plaintiff to provide proof. Defendant demands strict proof thereof."

If the allegations in the summons/petition are numbered, you need to number each of your ANSWERS to each numbered allegation.

So basically, you need to ANSWER that summons, then file a seperate Motion To Dismiss based on your above letter (with a few changes like I said)

I did not personally file any counterclaims etc.so I cannot help you there. You can USE the Federal Law above that you have typed as an affirmative defense. (no validation)

good luck!!

You know, I can definately and personally advise anyone to STAY AWAY FROM DEBT NEGOCIATING COMPANIES. This has been a nightmare and its not over.

Thank you, again. I will follow the advice "therein"....

[iviguy]

That is not an answer to a pleading. And, by suing you before validating, someone may have violated the FDCPA, but that is not an affirmative defense: that is more of a counterclaim.

You need to admit or deny the allegations in the complaint, and set up what defenses you have to the debt, then set forth your counterclaim. Typical defenses are : lack of legal capacity to bring the action, statute of frauds, statute of limitations. The affidavit, attached to the complaint, does nothing more at this point than amplify the complaint. It is not being offered as competent proof. At least not yet. So, answer the complaint and demand the othe rside produce the affiant so you can depose her. That is the way you attack the affidavit. At least in my book.

Ok, I found a template for an affirmative defense and am working on it now. One thing I don't understand is that #1 on the complaint served says "DISCOVERY" and that the plaintiff intends discovery to be conducted under level 1, rule 190 etc... Is there some answer to that? It's not really a complaint. How do I go about answering that claim?