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Sample Motions, Forms, Affirmative Defenses

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Thank you all for the posts. I think i will first file for demurrer because they failed to send me a copy of the contract with the summons. Then maybe I can eventually do my aswer and denie the claim

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howdy all:

You can download forms used for small claims cases in Illinois. They have a nifty forms-fill feature, so that you can type your text in handily.

Just google cook country clerk of court, find the website, and follow the links on the left for forms. (I'm a newbie so I can't post the actual link just yet.)

Hope folks find this useful.

s.g.xdancex

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Here is a list of standard CounterClaims used by a successful Consumer Advocate law firm in Atlanta. They throw the whole sheebang at them. It has some very good stuff for Georgia Civil code.

COUNTERCLAIM I

VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT (FDCPA)

COMES NOW, Defendant, and Counterclaims against Plaintiff for violations of the Fair Debt Collection Practices Act as follows:

1.

Defendant is a “consumer” as that term is defined by 15 U.S.C. §1692a(3).

2.

Defendant is a natural person allegedly obligated to pay a debt; in this case Plaintiff alleges that Defendant is obligated to pay a debt to Plaintiff.

3.

The obligation which Plaintiff alleges Defendant is obligated to pay is a “debt” as that term is defined by 15 U.S.C. §1692a(5).

4.

The alleged contract sued upon is believed by Defendant to be a purported monetary obligation arising from transactions on a credit card made primarily for personal, family, or household purpose; the purported account is personal rather than a business account.

5.

Plaintiff is a “debt collector” as that term is defined by 15 U.S.C. §1692a(6).

17.

Plaintiff uses the United States mail in the regular collection of debts owed to another.

18.

To the best of Defendant’s knowledge and belief, Plaintiff has used the mails of the United States to attempt to collect from Defendant an alleged debt purportedly previously owed to an “original creditor,” other than Plaintiff, which has purportedly been “charged off.”

19.

Plaintiff has violated the Fair Debt Collection Practices Act, 15 U.S.C. §1692e, because it made and/or employed false, deceptive and misleading representations and/or means in connection with the instant cause of action. Said false, deceptive and misleading representations were and have been made and are being made to Defendant and others as more specifically set out hereafter. Some or all of said false, deceptive and misleading representations were knowingly and intentionally made by Plaintiff.

20.

Plaintiff has violated the Fair Debt Collection Practices Act, 15 U.S.C. §1692d because it has engaged in conduct the natural consequence of which is to harass, oppress, or abuse the Defendant in connection with the instant Complaint, and as a result of the filing of said Complaint, and in other actions as more specifically set out hereafter. Plaintiff knowingly and intentionally engaged in harassing, oppressive, and/or abusive conduct toward the Defendant. Plaintiff knew or should have known that the natural consequences of said conduct would be to harass, oppress, or abuse the Defendant.

21.

Plaintiff has represented to Defendant that it has the legal right to collect the sums sought in the amount of $5,653.37 and $73.00 in court costs. Plaintiff does not in fact have the legal right to collect the sums claimed from Defendant, or any other amount, and knew or should have known same when it filed the instant lawsuit against Defendant.

22.

Upon information and belief, Plaintiff does not have the legal right to collect this sum because no sum is owed by Defendant to Plaintiff, and/or any party under whom Plaintiff is claiming to hold an assignment, and further, no valid assignment to Plaintiff exists. Although Plaintiff’s Complaint does not expressly allege same, on knowledge and belief, Defendant believes Plaintiff is claiming to hold the alleged debt sued on by assignment from another entity. By falsely representing that there exists a proper and legally valid assignment between Plaintiff and the original creditor of the account, if Plaintiff is so representing, and that Plaintiff has a right of recovery against Defendant thereon, and by filing a lawsuit against Defendant allegedly thereon, Plaintiff has violated the FDCPA, and is liable to Defendant for statutory and actual damages thereon, attorneys’ fees, and costs. Said violations include, but are not limited to violations of 15 U.S.C. §1692e, et seq. and 15 U.S.C. §1692d, et seq.

23.

Plaintiff has made knowing and intentional misrepresentations or misleading and/or false representations as to the legal status, character, and/or amount of the debt in violation of 15 U.S.C. §1692e(2), and in violation of U.S.C.15 §1692e(10).

24.

To the best of Defendant’s knowledge and belief, at the time of filing the instant lawsuit, Plaintiff does not have in its possession, and is unable to acquire or produce, the entire “Purchase Agreement” (or other similar name) pursuant to which it claims to have purchased the said purported “account” of Defendant on which it is suing herein. Plaintiff will only produce, and will only be able to produce, a “Bill of Sale,” “Bill of Sale and Assignment,” or other document having a similar name, which will make no specific reference to Defendant or any “account” allegedly owed by Defendant, and will on its face be an incomplete document, explicitly and specifically making reference to another “master agreement”, consisting of the above “Purchase Agreement” or other document having a similar name, to which the said “Bill of Sale” is made subject to, and the terms of which control and govern the said “Bill of Sale.” The production of an authenticated “master agreement” or “Purchase Agreement” as described above is necessary, inter alia, for Plaintiff to be able to make out a case against Defendant herein. At the time of filing the instant lawsuit, Plaintiff is aware, or should be aware, of the above. Thus, for this reason also, Plaintiff has knowingly and intentionally filed the instant lawsuit under circumstances in which it knows or should have known that it would be unable to make out any claim against Defendant herein. The above constitute violations by Plaintiff of 15 U.S.C. §1692d, 15 U.S.C. §1692e, and 15 U.S.C.15 §1692f.

25.

By filing suit, Plaintiff made the false, knowing, and intentional representation to Defendant and all other persons having or acquiring knowledge of the claims of Plaintiff against Defendant, and said suit, including credit reporting bureaus, and persons or entities Defendant might seek to obtain credit from, present or future potential employers of Defendant, and other persons and entities that it has the legal right to pursue this account in this Court. By filing the said action with this Court, Plaintiff has made false, knowing and intentionally deceptive and/or misleading representations to the general public, creditors of Defendant, persons or entities Defendant might seek to obtain credit from, present or future potential employers of Defendant, and others with respect to said account, all of which constitute violations of the Fair Debt Collections Practices Act and the Fair Business Practices Act.

26.

Some or all of Defendant’s Counterclaim is based on the following facts:

(a) The alleged “debt” or “account” on which Plaintiff is basing its claim of right to sue Defendant was acquired by Plaintiff, or some predecessor party, at auction, or by some other method of acquisition, from a bank or other financial institution, in blocks of said “accounts” as large as 5,000, 10,000, 15,000, 20,000, and/or 25,000 or more in a single transaction.

(B) In said auction, Plaintiff, or some predecessor party, bid on the block of “accounts” in which the “account” allegedly owed by Defendant was included, or acquired said account along with a large quantity of other accounts by some other means.

© At the said auction, or by some other method of acquisition, when either Plaintiff or some predecessor party acquired the block or group of “accounts” which included the “account” allegedly owed by Defendant, no actual hard copies, or indeed any records in any form whatsoever of any of the following were acquired, or transferred from the bank or other financial institution to Plaintiff or the predecessor party with respect to the following:

(1) any credit card or other agreement, or contract with respect to the specific alleged “account” of Defendant’s individually;

(2) monthly statements of account, records of charges, payments, interest, fees, or similar records or documents necessary to verify and prove that the said “account” is in fact owed by Defendant, and;

(3) the correct total amount actually owed, if any, by Defendant; and

(4) any accounting or financial records, including the above records, necessary to prove the breakdown of the purported “total” amount alleged to be owed, with respect to its components, such as principal, interest, late fees, over limit fees, etc.

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And more of the same.........

27.

Some or all of Defendant’s counterclaim is further based on the following facts:

(a) At the said auction, or by some other method of acquisition, the information transferred between buyers and sellers of accounts (purportedly including the instant account allegedly owed by Defendant and sued on herein) consisted solely of a “line entry” in digital or electronic format containing, at most, only a name, address, social security number, account number, telephone number, and a “total” dollar amount, without breakdown, and possibly some other very minimal information such as the alleged “charge-off’ date.

(B) Said “total” dollar amount was not broken down into principal, interest, fees, late charges, or in any other manner. To the best of Defendant’s knowledge and belief this was the method by which the data regarding Defendant’s alleged debt was transferred from a third party to Plaintiff or some predecessor party to Plaintiff.

© At the time of filing the instant lawsuit, Plaintiff does not have in its possession records or documents sufficient to prove the necessary elements of its purported claim against Defendant, and will not acquire said records or documents, if ever, until after the filing and service of Defendant’s instant Answer and Counterclaim. At the time of filing the instant lawsuit Plaintiff was aware or should be aware that it did not have in its possession records or documents sufficient to prove the necessary elements of its purported claim against Defendant, and further that it will not be able to acquire same.

(d) Further, Plaintiff has made no effort to verify or substantiate either:

(1) the documentation necessary to prove that Defendant in fact currently owes a debt of some amount which it is supposedly acquiring; and

(2) the correct amount (if any) which it is claimed is owed by Defendant.

(e) After acquiring the block of accounts, either Plaintiff or some predecessor party processed the block of accounts through a computer software algorithm “scrubbing” program, designed to select specific “accounts” to file suit on, or otherwise attempt to collect.

(f) Said scrubbing program was optimized to rank said accounts according to two primary criteria, in the following order of importance:

(1) Those “account debtors” LEAST LIKELY to obtain legal representation to defend a lawsuit, or otherwise resist collection efforts, without reference to the validity or accuracy of said debt. As example, said software programs normally rank individuals of the female gender; persons believed to have low income levels; and/or lower than normal education levels as being less likely to obtain legal representation or otherwise resist collection,

(2) Those “account debtors” from whom collection might be more easily made, i.e., having employment from which wages could be garnisheed, or those having bank accounts, or owning vehicles or other property which could be seized, without reference to the validity or accuracy of said debt.

(g) The above described computer software “scrubbing program” contains no software criteria, software routines, or subprograms to determine the validity of said “debt”, and no software criteria, software routines, or subprograms to determine the accuracy or validity of the amounts claimed to be owed.

(h) Said software program and “scrubbing” procedure was used to determine which account debtors would be sued.

28.

All of the information set forth in Paragraphs 1 through 27 above is and was known to Plaintiff, or should have been known to Plaintiff at the time Plaintiff filed the instant Statement of Claim against Defendant.

29.

Plaintiff has no knowledge or information, and none available to it, with respect to the alleged components, character, amount or legal status of the alleged debt or “account” it is suing Defendant on herein, including but not limited to the respective amounts of same which is alleged to be principal, interest, fees, and other charges. Plaintiff also does not have in its possession or available to it the original or an accurate copy of the specific “agreement” under which the above alleged account was originated. Also, Plaintiff also does not have in its possession or available to it the original or an accurate copy of all or any of the subsequent amended agreements which were from time to time made and in effect with respect to said account.

The terms and conditions of both the “original” agreement and subsequent amendments governed the said account, including such things as interest rates, late fees, payment periods, grace periods, and pertinent dates, which agreement, agreements, and all amendments thereto determined the exact amount due and owing under said agreement or agreements, to the extent that any amount is due and owing with respect to said alleged account. At the time Plaintiff filed the instant action Plaintiff knew or should have known that it lacked the above agreements and knowledge, and is unable to acquire same. Plaintiff has knowingly and illegally misrepresented that the said “principal” amount sued for herein in the amount of $5,653.37 actually constitutes principal, when in truth and fact said amount contains and represents interest, late fees, and other fees, in addition to principal. Plaintiff has unlawfully claimed “interest on interest” by said representations in said Statement of Claim.

30.

Based on the allegations above and further set forth herein, Plaintiff has violated 15 U.S.C. §1692d by engaging in conduct the natural consequence of which is to harass, oppress, or abuse Defendant by, without limitation; Continuing to pursue collection of disputed and unverified debt; and filing suit on an invalid debt, forcing Defendant to defend against an invalid action, and further, and in addition thereto, knew or should have known that it has engaged in such conduct, and the said consequences thereof.

31.

Upon information and belief, Plaintiff has communicated credit information to persons, including but not limited to credit reporting bureaus or agencies, with respect to Defendant, which it knew or should have known to be false – including without limitation allegations that Defendant owed the purported debt which is the subject of this action, and/or that Defendant owes said debt to Plaintiff and/or that Plaintiff is the original creditor of said alleged debt.

32.

Upon information and belief, Plaintiff has, in violation of 15 U.S.C. §1692e(8) failed to communicate to Defendant, other persons and entities, including credit bureaus, and persons yet to be determined, that Defendant disputes the alleged debt.

33.

By falsely representing that Plaintiff is either an assignee of an original creditor, and/or that said assignment constitutes a proper, competent, or valid assignment between Plaintiff and the original creditor of any alleged debt by any alleged original creditor to Plaintiff, and/or that Plaintiff is the original creditor, Plaintiff has made material, false and misleading representations, and has further communicated to Defendant and other persons credit information which is known or which should be known to be false, including the above, the failure to communicate that a disputed debt is disputed, the “re-aging” of said debt, the false and misleading representation and impression that Plaintiff is the original creditor of said debt, and other material false and misleading representations, and has violated 15 U.S.C. §1692e, 15 U.S.C. §1692e(8), §1692e(2)(A), § 1692e(5), § 1692e(10) and § 1692f. Plaintiff either knew or should have known all of the above.

34.

By reporting the account sued on to credit bureaus with misleading information regarding the nature and/or status of said alleged debt with respect to such matters as the identity of the original creditor, the relevant dates and ages of said alleged debt, and other matters which Plaintiff knew or should have known would mislead, Plaintiff has violated 15 U.S.C. §1692e(2)(A), 1692e(8), 1692e(10) and 1692k(a)(3).

35.

The Fair Debt Collection Practices Act, §1692k, provides for actual damages, statutory damages up to one-thousand dollars ($1,000.00) per violation, costs of the action, and reasonable attorneys’ fees. Defendant has suffered actual damages as the proximate and actual cause and result of the violations of the FDCPA by Plaintiff to be determined at trial. Plaintiff is liable to Defendant for statutory damages as prescribed by § 1692k(a)(2)(A), actual damages pursuant to § 1692k(a)(1) in an amount to be determined at time of trial, and reasonable attorneys’ fees and costs pursuant to § 1692k(a)(3).

36.

Defendant/Plaintiff in Counterclaim hereby prays for actual damages under the Fair Debt Collection Practices Act, and for statutory damages as set forth above for each and every violation of the Fair Debt Collection Practices Act proven at the trial of this case, and reasonable attorneys’ fees and costs thereunder.

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OK this is all of it!

COUNTERCLAIM II

CLAIM PURSUANT TO THE FAIR BUSINESS PRACTICES ACT FOR INJURIES AND DAMAGES RESULTING FROM UNFAIR AND DECEPTIVE ACTS AND PRACTICES IN THE CONDUCT OF CONSUMER TRANSACTIONS AND CONSUMER ACTS OR PRACTICES IN TRADE OR COMMERCE AS PROVIDED BY O.C.G.A. § 10-1-390, ET SEQ.; EXEMPLARY AND TREBLE DAMAGES PURSUANT TO O.C.G.A. § 10-1-399© FOR INTENTIONAL AND KNOWING VIOLATIONS THEREOF; AND REASONABLE ATTORNEYS’ FEES AND EXPENSES OF LITIGATION PURSUANT TO O.C.G.A. § 10-1-399(d)

COMES NOW, Defendant and Counterclaims against Plaintiff, pursuant to the Fair Business Practices Act for INJURIES AND DAMAGES RESULTING FROM UNFAIR AND DECEPTIVE ACTS AND PRACTICES IN THE CONDUCT OF CONSUMER TRANSACTIONS AND CONSUMER ACTS OR PRACTICES IN TRADE OR COMMERCE AS PROVIDED BY O.C.G.A. § 10-1-390, ET SEQ.; EXEMPLARY AND TREBLE DAMAGES PURSUANT TO O.C.G.A. § 10-1-399© FOR INTENTIONAL AND KNOWING VIOLATIONS THEREOF; AND REASONABLE ATTORNEYS’ FEES AND EXPENSES OF LITIGATION PURSUANT TO O.C.G.A. § 10-1-399(d).

37.

Paragraphs 1 through 36 hereof are incorporated herein by reference.

38.

Plaintiff has misrepresented Defendant’s financial indebtedness to others or falsely reported Defendant’s credit history, which is a violation of the Georgia Fair Business Practices Act, O.C.G.A. §10-1-391, et seq. and is an unfair deceptive act or practice in the conduct of a consumer transaction in trade or commerce as set forth in O.C.G.A. §10-1-393.

39.

Plaintiff’s conduct in the filing of this action, without any legal basis on which it could prevail in said action, in misrepresenting the nature of the amount claimed as set out above, and in each and every averment set forth above, constitutes a violation of the Georgia Fair Business Practices Act, O.C.G.A. §10-1-391, et seq. (“FBPA”) and is an unfair deceptive act or practice in the conduct of a consumer transaction in trade or commerce as set forth in O.C.G.A. §10-1-393. Further, said conduct was engaged in knowingly and intentionally, and constituted a knowing and intentional violation of the provisions of the FBPA.

40.

Plaintiff’s violations of the Fair Debt Collection Practices Act as set forth herein, and above, and to be proved at trial, constitute violations of the Georgia Fair Business Practices Act, O.C.G.A. §10-1-391, et seq. and constitute unfair deceptive acts and/or practices in the conduct of consumer transactions in trade or commerce as set forth in O.C.G.A. §10-1-393.

41.

Based on the above violations of the FBPA, Plaintiff is liable to Defendant for her actual damages in an amount to be determined at time of trial, and reasonable attorneys’ fees and costs in an amount to be determined at time of trial, as well as exemplary damages pursuant to O.C.G.A. §10-1-399, and treble damages pursuant to O.C.G.A. §10-1-399(B).

WHEREFORE, Defendant respectfully prays that the Court dismiss the action against Defendant with prejudice; Defendant further prays that this Court enter a judgment against Plaintiff for all damages proven at trial against Plaintiff, including actual damages and statutory damages, attorneys’ fees and costs under the Fair Debt Collection Practices Act , including actual and treble damages, attorneys’ fees and costs pursuant to the Fair Business Practices Act, O.C.G.A. § 10-1-391 et seq, and attorneys’ fees and expenses as provided by O.C.G.A. § 9-15-14, with all costs taxed against Plaintiff.

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If you are not served in time, I here you file a motion to dismiss in california, I think it 180 days.

Does anyone have a sample of a motion to dismiss for lack of prosecution, California Law?

CRC 3.740b

e) Effect of failure to serve within required time

If proofs of service on all defendants are not filed or the plaintiff has not obtained an order for publication of the summons within 180 days after the filing of the complaint, the court may issue an order to show cause why reasonable monetary sanctions should not be imposed. If proofs of service on all defendants are filed or an order for publication of the summons is filed at least 10 court days before the order to show cause hearing, the court must continue the hearing to 360 days after the filing of the complaint.

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Hi musimann! I live in the Atlanta area and I was wondering which law firm you quoted from? I have just answered a summons and I'm not sure if I want to go at this pro se! I keep reading on this board, but I still feel very ignorant!

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I am looking for a sample of motion to compel arbitraiton and a motion to dismiss because of arbitration elected I think this is my next step

http://debt-consolidation-credit-repair-service.com/forums/showthread.php?t=301607

I sent a letter to elect arbitration thanks trueq

http://www.debt-consolidation-credit-repair-service.com/forums/showpost.php?p=1027530&postcount=11

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I'm looking for a sample of request for documents and interrogatories when the org. contract was attached to the summons.

Any help is greatly appreciated.

Thanks!

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Did not file affidavit of evidence. I assume that I will hear from the local bar, attorney general and ftc and can file it then. They will get in touch with me to provide documentation I assume.

I did not send the complaint to Junk Debt Collector (Mr. Lawyer representing Citibank) so I should notorize it and send it to them to scare them out of their pants.

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Affirmative Defenses

These can be included in your motions, but again, you need to read your state's rules of civil procedures to see if this is proper. It should be included IN ADDITION to written answers you will provide to interrogatories (questions directed at you by the people filing the suit and which related to your personal information and the lawsuit itself.) .

Pick among these, your case may not relate to some of them below. This is only a template

As and for a First Defense

Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fails to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.

As and for a Second Defense

Defendant alleges that this action is time-barred under §<insert the law which states SOL> of the laws of <name of your state>.

As and for a Third Defense

Plaintiff admits to purchasing the defaulted debt allegedly owned by the Defendant, causing Plaintiff's injury to its own self, therefore Plaintiff is barred from seeking relief for damages.

As and for a Fourth Defense

Plaintiff's Complaint violates the statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. the purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person.

As and for a Fifth Defense

Defendant claims a Failure of Consideration, as there has never been any exchange of any money or item of value between the plaintiff and the Defendant.

As and for a Sixth Defense

Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff.

As and for a Seventh Defense

Defendant alleges that the Complaint includes references to alleged agreements made outside of the alleged written contract, violating the Parole Evidence Rule.

As and for an Eighth Defense

Plaintiff’s Complaint fails to allege a valid assignment and there are no averments as to the nature of the purported assignment or evidence of valuable consideration.

As and for a Ninth Defense

Plaintiff's complaint fails to allege whether or not the purported assignment was partial or complete and there is no evidence that the purported assignment was bona fide.

As and for a Tenth Defense

Plaintiff's Complaint fails to allege that the Assignor even has knowledge of this action or that the Assignor has conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant.

As and for an Eleventh Defense

The Plaintiff is not an Assignee for the purported agreement and no evidence appears in the record to support any related assumptions.

As and for a Twelfth Defense

Defendant claims Accord and Satisfaction as Defendant alleges that the original creditor accepted payment from a third party for the alleged debt, or a portion of the alleged debt, or that the original creditor received other compensation in the form of monies and/or credits.

As and for an Thirteenth Defense

Defendant invokes the Doctrine of Unclean Hands as the Defendant alleges that the Plaintiff or the person or entity that assigned the alleged claim to Plaintiff acted in a dishonest or fraudulent manner with respect to the dispute at issue in this case.

As and for a Fourteenth Defense

Plaintiff is not authorized or licensed to advertise or solicit, either in print, by letter, in person or otherwise the right to collect or receive payment of a claim for another, nor to seek to make collection or obtain payment of a claim on behalf of another. The Complaint fails to allege any exception or exemption to these requirements. The Plaintiff is not any of the following: an attorney at law; a person regularly employed on a regular wage or salary in the capacity of credit men or a similar capacity, except as an independent contractor; a bank, including a trust department of a bank, a fiduciary or a financing and lending institution; a common carrier; a title insurer or abstract company while doing an escrow business; a licensed real estate broker; an employee of a licensee; nor a substation payment office employed by or serving as an independent contractor for public utilities.

As and for a Fifteenth Defense

Defendant alleges that Plaintiff's Complaint, and each cause of action therein is barred by the Doctrine of Estoppel, specifically Estoppel in Pais.

As and for a Sixteenth Defense

Defendant alleges that Plaintiff's actions are precluded, whereas Plaintiff's demands for interest are usurious and violate state and federal laws.

As and for a Seventeenth Defense

Defendant alleges that Plaintiff or the person or entity that assigned the alleged claim to the Plaintiff is not entitled to reimbursement of attorneys' fees because the alleged contract did not include such a provision, and there is no law that otherwise allows them.

As and for an Eighteenth Defense

Defendant invokes the Doctrine of Laches as the Plaintiff or the person or entity that assigned the claim to the Plaintiff waited too long to file this lawsuit, making if difficult or impossible for the Defendant to find witnesses or evidence or that evidence necessary to provide for Defendant's defense has been lost or destroyed.

As and for a Nineteenth Defense

Plaintiff has no Fiduciary Duty.

As and for a Twentieth Defense

Plaintiff has failed to name all necessary parties.

As and for a Twenty-first Defense

Plaintiff's alleged damages are the result of acts or omissions committed by non-parties to this action over whom the Defendant has no responsibility or control.

As and for a Twenty-second Defense

Plaintiff's alleged damages are the result of acts or omissions committed by the Plaintiff.

As and for a Twenty-third Defense

Defendant alleges that the granting of the Plaintiff's demand in the Complaint would result in Unjust Enrichment, as the Plaintiff would receive more money than plaintiff is entitled to receive.

As and for a Twenty-fourth Defense

Plaintiff's alleged damages are limited to real or actual damages only.

As and for a Twenty-fifth Defense

Defendant invokes the doctrines of Scienti et volenti non fit injuria (a person who knowledgeably consents to legal wrong has no legal right) and Damnum absque injuria (harm without injury).

As and for a Twenty-sixth Defense

<Have you sued these folks before and won? If so, include this defense>

Since under collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case, plaintiff’s claims are barred. We cite case XXXX-XXXX September 2004.

As and for a Twenty-seventh Defense

Since a court will not grant a judgment or other legal relief to a party who has not acted fairly by having made false representations or concealing material facts from the other party, <insert others here>, we maintain that equitable estoppel bar plaintiff’s claims.

As and for a Twenty-eight Defense

Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

First - I love this list.

In my situation - a well-known national JDB is suing me on behalf of the OC. The OC is listed as the Plaintiff.

The Complaint I received had a copy of the original HELOC Agreement and a copy of the HELOC Security Deed. The HELOC is currently unsecured as it was on a home that foreclosed in 2008.

The Complaint makes no reference to an account number - nor does it include any past statements showing how the amounts were calculated.

Question: Given that the official PLAINTIFF on my summons is the OC and the "lawyer" is the JDB - which of the items listed above should I include (and which ones should definitely be changed or left off altogether)?

Question: Any other advice you have is greatly appreciated.

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Recovering Attorney - Thank you for posting that. I am in Michigan and a Debt Collection Attorney used an address that I have never lived at. A default judgment occurred and a writ of non periodic garnishment of the bank account happened.

The court "allows" 14 days from receipt, but if you never received service...

The funny thing is that when this CA is filing with the wrong address, the OC is sending me statements at my real address :) - So it proves that the OC has the correct address and that the CA is just trying to garnish the bank account without cause.

Anyway, I am also filing a complaint with my state's Consumer Protection against the law firm and the Office of Financial Regulation against the credit card company.

11-2010

Exp - 505

TU - 479

EQF - 467

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Here is a great thread chock full of sample responses to interrogatories, summons, request for production of documents, etc.

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=292720

The plaintiff sent US their first discovery, which he filed with the court. I am confident on how to respond. What I am looking for the interrogatories and admissions that I need to pose to the defendant. I'm sure it's here but I must be overlooking it.

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Couple of questions...

First is if there are rules (I am sure there are) as to when motions can be filed. I have filed a Motion to Request Validation of Debt, but the judge has not ruled on it yet. I am ready to move beyond that, and simply file a Motion TO Dismiss With Prejudice since the Plaintiff has provided no evidence. Can I do that without the other motion having been ruled on?

BY the way, I have an example of where the court allowed a Motion to Request Validation of Debt after the complaint was served.

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After Discovery was complete, I filed a Motion for Summary Judgment when I seen the evidence against me did not prove I owed the debt. Here is the Motion I filed, followed by the notice for MSJ, both must be filed with the court clerk and sent to the plaintiff.

The first one is the motion for summary judgment detailing why there is no evidence that proves I owe the debt. In order for a summary judgment to be granted to you, you have to show there are no facts in the case. Basically, just plead your case. Use at your own peril please.

NO. xx-x-xxxx (your case number) DISTRICT COURT

AAC LLC, PLAINTIFF

vs.

bknigh1 DEFENDANT

MOTION FOR SUMMARY JUDGEMENT

MEMORANDUM OF POINTS AND AUTHORITIES

Comes now the Defendant bknigh1, Pro Se, for the legal basis of defendant’s motion for summary judgment, states that plaintiff, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find that defendant is indebted to the Plaintiff.

1. Defendant received the Plaintiff's Complaint on or about xxxx xx, 2010. Defendant answered the complaint on or about xxxx xx, 2010.

2. Defendant sent Request for Discovery via certified mail with return receipt to Plaintiffs council on xxxxxxx xx, 2010. Defendant received Plaintiffs answers on xxxxxxx xx, 2010.

3. In accordance with Steelvest, Inc. vs. Scansteel Service Center, Inc., there is no genuine issue of material fact. Plaintiff has not been able to tie the Defendant in this case to this debt.

The Plaintiff has failed to provide any contract or agreement bearing the signature of neither the Defendant, nor any itemized statements or billing of said debts. Defendant requested these items in her affirmative defenses, as well as, through Discovery. According to Bullock vs. Worldwide Asset Purchasing LLC, the Kentucky Court of Appeals found that the Plaintiff in debt collection cases must be required to prove three elements of a claim before judgment can be entered against the defendant:

a. “Plaintiff must produce a bill of sale listing the name and account number of the defendant”.

b. “Plaintiff must produce a document specifically detailing how it reached the principal and interest amounts that it is suing for”

c. “and Plaintiff must produce documentary evidence that the defendant is in fact the person responsible for the debt”

Plaintiff has provided an ASSIGNMENT AND BILL OF SALE to Defendant listed as “Plaintiff’s Exhibit B” (attached), however, neither Defendants name nor account number are listed on document. Plaintiff also provided a second document to “Plaintiff’s Exhibit B” titled Bill OF SALE AND ASSIGNMENT OF LOANS (attached) with handwritten notation xxxxx Assgn xxxx to Collect 2711-12; again, neither Defendants name nor account number are listed.

Defendant requested in her Affirmative Defenses and through Discovery, that the Plaintiff provide an original or copy of the original agreement that states interest rate, grace period, finance charges, assignment, and specifically the State Laws that the account or agreement was governed, as well as, the principal amount….Plaintiff objected to this request, claiming, at this time they did not have possession, custody, or control of requested documents. The only documents the Plaintiff has provided in regards to the accounting of this alleged debt is basic screen shots from Plaintiffs computer, “Plaintiffs Exhibit A” (attached), none of which provide any details, and what little amounts are listed are conflicting. These amounts are conflicting and suspicious because on page one (1) of this exhibit, its states the original balance is $5225.89 with interest being $2128.00, yet on the same page the principal balance states $3475.99 ,with interest $3877.90, however, both total to $7353.89. Upon further examination through “Plaintiffs Exhibit A”, on page eight (8) the interest states $1592.34. On page nine (9) of “Plaintiff’s Exhibit A”, it state’s Original Loan Amount is 0, with Last Charge Amount being 0. It states that the interest rate is 21 on page two (2), however on page 10 it has interest rate at 21.9.

Defendant requested in her Affirmative Defense, for any validation of debt by way of any contract bearing the signature of the Defendant. Plaintiff provided as their evidence “Plaintiff’s Exhibit D” (attached) a Credit Card Agreement. Defendants name, nor signature are shown on this agreement, nor any other identifying marks that show Defendant is in fact the person responsible for this debt or in agreement to any terms. Furthermore, Plaintiff claims Defendant agreed to the terms listed in the Credit card Agreement on xxxxxxx xx, 1998, yet “Plaintiffs Exhibit D” is copyrighted on the last page “© 2000”.

[bullock V WORLDWIDE ASSET PURCHASING, LLC BUYER OF NEXTCARD, INC., NO. 2006-CA-001757-MR

For the above reasons, Defendant respectfully request that the court grant thier Motion for Summary Judgment in its entiriety and enter judgment in favor of defendent in respect to plaintiffs claims.

Respectfully Submitted,

bknigh1

Next, is the Notice you file with your MSJ and also send to the plaintiff along with the MSJ above. At the courthouse the clerk will give you days to chose when you would like the Motion to be heard or you could call and find out ahead of time before you file these 2.

NO. xxx-xxxx(your case #) XXXXX DISTRICT COURT

AAC LLC, PLAINTIFF

V

bknight1, DEFENDANT

*NOTICE-SUMMARY JUDGEMENT-NOTICE*

_________________________________________________________

Please take notice that the above motion will come before the court on XXXXXX XX, 2011, at 2:00 p.m.

Certificate of Service

I hereby certify that a copy of the foregoing was sent by USPS on the xth day of xxxxxxx xx, 2010 to <Attoney or Plaintiff>, JDB Law FIRM PLC, P.O. Box xxxxx, Somewhere, KY. xxxxx-xxxx.

________________________________

bknigh1, Defendant

1234 xxxxxx Dr. Somewhere, KY XXXXX

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