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Sample Motions, Forms, Affirmative Defenses

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judge gave plaintiff 15 days on Nov 15th to provide discovery to me they have not yet replied and it has been over 60 days what should I do, file a motion to dismiss with prejudice?

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judge gave plaintiff 15 days on Nov 15th to provide discovery to me they have not yet replied and it has been over 60 days what should I do, file a motion to dismiss with prejudice?

Was the 15 days given by judge after a motion to compel discovery? You may need to send the plaintiff a final reminder, or phone call. Give them a few days to send you something, and if they still haven't responded then go for your motion to dismiss, let the judge know it has been 60 days plus you also gave them a call or a letter to remind them, and they still haven't answered. Also, I would put this question on the main page("is there a lawyer in the house") to get more views. If you did, I apologize.

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The following is a list of defenses under the Mississippi Rules of Civil Procedures. Although some are pretty obvious as to their meaning, most of them lack enough information for me to know exactly what it means and if it applies to my case. Is there anywhere in these forums that discusses affirmative defenses in further detail? Can anyone give a better explanation?

(1) Lack of jurisdiction over the subject matter,

(2) Lack of jurisdiction over the person,

(3) Improper venue,

(4) Insufficiency of process,

(5) Insufficiency of service of process,

(6) Failure to state a claim upon which relief can be granted,

(7) Failure to join a party under Rule 19.

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I wish there was a sample debt validation letter here...

I've seen TrueQ's, but I would like also a simpler one, too. Both could go in this sticky ;-)

notagain

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I've been searching the forums to find answers and I apologize if I overlooked this somewhere else. Am I correct in assuming that affirmative defenses are state specific? If so can someone post a link for Florida? I'm forming our first response to a summons from CapOne.

I was so happy to find the post from 'notagain' above in this thread for Answer to Complaint from Capital One (OC) which I think is perfect (with tweaking) for our initial response to our summons. I'm looking to cover all the bases and I'm learning the legal side on the fly here.

(So thankful to all the posters out here helping us newbies get through this).:D

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The link below should help you.

floridalegalwiki.com/index.php/Affirmative_Defense this link goes to Affirmative Defense - Florida Legal Wiki

Thank you DebtFighter - very helpful

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STATE OF MICHIGAN

IN THE DISTRICT COURT FOR THE 68TH JUDICIAL DISTRICT

JON DOE, Case No. 11-****-GC \

Individually

Defendent.

vs.

LHR, INC. ,

Plaintiff,

______________________________/

ROOSEN, VARCHETTI & OLIVIER , PLLC

Attorneys for Plaintiff

Richard G. Roosen P35**

Paul E. Varchetti P**403

Po Box 380170

Clinton Township, MI *****

(586)868-****

**************______________________________/

There is no other pending or resolved civil action arising out of the

transaction or occurrence alleged in the complaint.

Defendant, appearing pro se, for its reply to the Complaint naming LHR.INC Plaintiff as follows: All answers correspond to the numbered paragraphs of the Complaint(s). All allegations of the Complaint(s) are denied unless expressly admitted herein.

1. The Defendant lacks knowledge or information sufficient to form a

belief as to the truth of this allegation

2. ADMIT

3 ADMIT

4. Defendant is without knowledge or information to validate this claim or to form a belief as to the truth of the averment. Based on lack of information, Defendant denies the allegation and leaves the plaintiff to provide proof. Defendant demands strict proof thereof.

5 The Defendant lacks knowledge or information sufficient to form a

belief as to the truth of this allegation

6. The Defendant lacks knowledge or information sufficient to form a

belief as to the truth of this allegation

7. Defendant is without knowledge or information to validate this claim or to form a belief as to the truth of the averment. Based on lack of information, Defendant denies the allegation and leaves the plaintiff to provide proof. Defendant demands strict proof thereof.

8. The Defendant lacks knowledge or information sufficient to form a

belief as to the truth of this allegation

9. The Defendant lacks knowledge or information sufficient to form a

belief as to the truth of this allegation

10. The Defendant lacks knowledge or information sufficient to form a

belief as to the truth of this allegation

11. This request calls for admission of matter defendant has denied and thus it is improper.

12. The Defendant lacks knowledge or information sufficient to form a

belief as to the truth of this allegation

13. The Defendant lacks knowledge or information sufficient to form a

belief as to the truth of this allegation

14. Defendant is without knowledge or information to validate this claim or to form a belief as to the truth of the averment. Based on lack of information, Defendant denies the allegation and leaves the plaintiff to provide proof. Defendant demands strict proof thereof.

15. The Defendant lacks knowledge or information sufficient to form a

belief as to the truth of this allegation

16. The Defendant lacks knowledge or information sufficient to form a

belief as to the truth of this allegation

17. The Defendant lacks knowledge or information sufficient to form a

belief as to the truth of this allegation

18. The Defendant lacks knowledge or information sufficient to form a

belief as to the truth of this allegation

19. The Defendant lacks knowledge or information sufficient to form a

belief as to the truth of this allegation

20. Deny. Defendant objects this request on the grounds that the Affidavit is Vague and based on hearsay. Based on lack of information, Defendant denies the allegation and leaves the plaintiff to provide proof.

21. The Defendant lacks knowledge or information sufficient to form a

belief as to the truth of this allegation

22. The Defendant lacks knowledge or information sufficient to form a

belief as to the truth of this allegation

23. Defendant is without knowledge or information to validate this claim or to form a belief as to the truth of the averment. Based on lack of information, Defendant denies the allegation and leaves the plaintiff to provide proof. Defendant demands strict proof thereof.

24. The Defendant lacks knowledge or information sufficient to form a

belief as to the truth of this allegation

25. The Defendant lacks knowledge or information sufficient to form a

belief as to the truth of this allegation

26. The Defendant lacks knowledge or information sufficient to form a

belief as to the truth of this allegation

27.The Defendant lacks knowledge or information sufficient to form a

belief as to the truth of this allegation

AFFIRMATIVE DEFENSES

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

2.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.

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

July 22, 2011

X_____________________________--

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Can I use this this motion after I answered, filed affirmative defenses and certicate of service and the after the plaintiff (a debt collector attorney) for a plaintiff I never heard of nor was never contacted by (CACH) for a company I never heard of (MBNA) has asked me to respond to request for admissions, production of documents and interrogatories? I have prepared them but would prefer to enter motion to dismiss

The attorney mistated in the request for admission, documents that plaintiff was CACH in one part of the filing and MBNA in another part and they have not produced a contract as I asked between CACH or MBNA or the attorney and me.

Bohey

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Hi i been sued by credit card company Capital One. Plaintiff claims to be OC Capital One but from what i've learned by reading your posts, i know that it's the attorneys (Hunt & Henriques)suing me and not OC. During Discovery I asked for production of document and bills of particular for plaintiff to produce written contract or statements. They produce some credit card statement but they objected to give anything else. They claimed that any other document are protected from discovery under attorney/client privilege or work of product. Now there is a case management order issue by the court for a Non-Jury trial set for 11-9-11. Any advice your can provide on what could i do to defend myself against this Junk deb collectors. Any extra help will be highly appreciated > you already had helped a lot> thanks so much.

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Hi i been sued by credit card company Capital One. Plaintiff claims to be OC Capital One but from what i've learned by reading your posts, i know that it's the attorneys (Hunt & Henriques)suing me and not OC. During Discovery I asked for production of document and bills of particular for plaintiff to produce written contract or statements. They produce some credit card statement but they objected to give anything else. They claimed that any other document are protected from discovery under attorney/client privilege or work of product. Now there is a case management order issue by the court for a Non-Jury trial set for 11-9-11. Any advice your can provide on what could i do to defend myself against this Junk deb collectors. Any extra help will be highly appreciated > you already had helped a lot> thanks so much.

Then motion in limine for the BoP. you have some time.

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Hi i been sued by credit card company Capital One. Plaintiff claims to be OC Capital One but from what i've learned by reading your posts, i know that it's the attorneys (Hunt & Henriques)suing me and not OC. During Discovery I asked for production of document and bills of particular for plaintiff to produce written contract or statements. They produce some credit card statement but they objected to give anything else. They claimed that any other document are protected from discovery under attorney/client privilege or work of product. Now there is a case management order issue by the court for a Non-Jury trial set for 11-9-11. Any advice your can provide on what could i do to defend myself against this Junk deb collectors. Any extra help will be highly appreciated > you already had helped a lot> thanks so much.

If Cap One is named as the Plaintiff, then Cap One is suing you. Hunt is merely representing them.

If you want to be sure, check your credit report. If Cap One's entry says "sold/transferred", then they're not the Plaintiff. If the entry merely states "charged off", they still own the debt.

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Then motion in limine for the BoP. you have some time.

Anyone have a sample or template of a

MOTION IN LIMINE to exclude evidence at trial?

My BoP hearing is coming up.

Thanks everyone for your advice and time. We're getting down to the nitty gritty that is trial.

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LexisNexis® Custom Solution: California Courts Research Tool

Elkins v. Superior Court,

41 Cal. 4th 1337 (Cal. 2007)(about not allowing questioning of witness and allowing declaration)

Kelly v. New West Federal Savings (1996)

49 Cal.App.4th 659, 677 [56 Cal. Rptr. 2d 803]

Spector v. Superior Court (1961)

55 Cal.2d 839, 843, 844 [13 Cal. Rptr. 189, 361 P.2d 909]

Tillson v. Peters (1940)

41 Cal.App.2d 671, 679 [107 P.2d 434]

Halperin v. Guzzardi(1949)

95 Cal. App. 2d 31, 35, 212 P.2d 194 LEXIS 1077

Gray v. Robinson (1939)

33 Cal App.2d 177, 182, 91 P.2d 194 LEXIS 205(discovery statutes defined by Cal. Supreme Court)

Pratt v. Pratt (1903)

141 Cal. 247, 251-252, 74 P. 742 LEXIS 748

Malkasian v. Irwin (1964)

61 Cal. 2d 73. 78, 40 Cal. Rptr. 78,394 P.2d 822

Smith v. Covell,

100 Cal. App. 3d 947 (Cal. App. 4th Dist. 1980)

Interstate Group Administrators, Inc.,

supra, 174 Cal.App.3d at p. 708

Kulshrestha v. First Union Commercial Corp., 33 Cal. 4th 601 (Cal. 2004):(CCP 2015.5 out of state affidavits)

Arcaro v. Silva and Silva Enterprises Corp., 77 Cal. App. 4th 152; 91 Cal. Rptr. 2d 433; 1999 Cal. App. LEXIS 1119; 99 Cal. Daily Op. Service 10052; 99 Daily Journal DAR 12851(Maicious prosecution with forged credit application)

8-)

Edited by Seadragon
  • Like 2

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One dumb question, does the trial brief need to be mailed to the Plaintiff with proof of service?

Thanks again.

The court asked me if I'd sent this to the plaintiff. I said yes. they said I didn't receive it. court said do you have the proof of service i looked and I had taken it out of the file to make a copy and left it, the copy, and some rebuttal evidence on the printer. It caused a major problem so yes CMRRR filed 10 days before OR Check local court rules for trial brief deadlines. have the proof of service and green card with you at trial.

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A demurrer is a type of motion that can be filed with the court instead of filing an answer. The deadline for filing is the same as your answer. The arguments in this demurrer specifically address a complaint for breach of contract where no exhibits are attached. Generally, the contract is required to pursue a breach of contract claim, so they won't be able to proceed with their case until they present the contract to the court.

Here's the meat of the brief:

_________________________

I. INTRODUCTION & RELEVANT BACKGROUND

Defendant ______________ ("Defendant") respectfully submits the following Memorandum of Points and Authorities in support of her General Demurrer to Plaintiff Midland Funding LLC’s (“Plaintiff”) Complaint.

On ___________________, Plaintiff filed the instant suit for monetary damages in the sum of $____________. In its Complaint, Plaintiff claims this amount accrued under a written agreement between the parties. Plaintiff’s Complaint, however, is fatally flawed. Plaintiff neither attaches a copy of the purported agreement with Defendant to its Complaint, nor pleads any of the essential elements of the alleged contract. The lack of a contract or, alternatively, a recitation of its terms, leaves Defendant completely in the dark as to the basis of the claim being asserted against her by an entity which is completely unknown to her. Plaintiff conspicuously fails to provide information regarding the date the purported contract was entered into or even the subject of the contract (i.e., whether for goods, services, credit, etc.).

Not only does Plaintiff’s vague pleading fly in the face of the interests of justice, such pleading is prohibited by statute. As set forth in more detail below, Plaintiff has wholly failed to meet its statutory obligations under California Code of Civil Procedure [“CCP”] Section 430.10(e), and it is respectfully requested that the Court sustain Defendant’s demurrer without leave to amend since it appears that there is no reasonable possibility that Plaintiff can cure the fatal defects.

II. LEGAL AUTHORITY

A. A Demurrer is Properly Sustained Where a Pleading Fails to State Facts Sufficient to Constitute a Cause of Action

A general demurrer is proper when the complaint fails to allege facts sufficient to constitute a cause of action. (CCP § 430.10(e).) To determine whether a complaint fails to allege sufficient facts, a demurrer must challenge defects that appear on the face of the complaint. (Id., § 430.30(a).) The “face of the complaint” includes matters shown in exhibits attached to the complaint and incorporated therein by reference and matters of which the court may take judicial notice. (Ibid.; Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) If upon consideration of all facts stated it appears that plaintiff is not entitled to the relief sought, the complaint or any causes of action therein will be held invalid. (Songer v. Cooney (1989) 214 Cal.App.3d 389, 390.)

It is well settled that a plaintiff must set forth specific facts in a complaint so that the defendant may plead intelligently and responsively to the pleading without having to guess or speculate as to the items of material or essential facts. (See Ankeny v. Lockheed Missile & Space Company (1979) 88 Cal.App.3d 931, 937.)

In the instant action, Plaintiff’s entire Complaint is subject to demurrer because it fails to state facts sufficient to constitute causes of action for common counts (First Cause of Action) or breach of contract (Second Cause of Action). (Code Civ. Proc. § § 430.10(e).)

I like this one.

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If you file this demurrer in a CC case against an OC, would their likely response be to amend and plead a better complaint?

He is presently in the fight but his strategy of BoP, fail to respond to Bop, demurrer and leave to amend preclusion is working very well.

You have to bring the BOP issue in the demurrer first and then go into the other issues.

the person who used it did get sustained with leave to amend but made a procedural error in the oral arguement phase(it happens)

the Failure of the plaintiff to respond to BoP will make it harder for amendment as they are precluded from giving evidence.

When the poster finishes up he will tell us all about it.

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