Desperate! Need HELP with Lawsuit

[what_now]

Being sued by JDB within SOL. Court allowed 190 days to serve me!

They got me. And this is the hardest part: The attorney’s second (and final motion allowed) to extend time to serve me was granted, but was to be dismissed w/o prej if service was not effected by July xx. The sheriff person showed up at my house and served me THREE DAYS AFTER this deadline. Is that not a defect in the service of process? Or at the very least, preclude the court’s jurisdiction over this matter? Shouldn’t the clerk of court have dismissed this case instead of permitting an entry 3 days AFTER the judge allowed the plaintiff to serve me? I brought this to her attention and quickly discovered that if the clerk of court in my town gets paid more than $6.00 per hour, she’s over paid! Sorry if I sound callous but I’m pretty frustrated.

To top it off, I wasted $40 bucks the other day on a 20 minute conference with an attorney who was absolutely useless and most likely had to look up the acronym FDCPA after my departure. I just wanted clarification on Iowa’s RCP and was told to handle this situation in a manner that provided me no leverage at all!

So I’m back here at CIC where I get the most information and most importantly, the most comfort, as I know I’m not alone.

I have been reading and researching but I’m still unsure. Can someone PLEASE look at this part of Iowa’s RCP and tell me if I’m reading it right? Unless I file a motion BEFORE answering the complaint asserting the following defenses, I lose them: ????

Lack of jurisdiction over the person

Insufficiency of original notice or its service

To recast or strike

For more specific statement

Am I interpreting this correctly?

Iowa RCP:

Rule 1.421 Defenses; how raised; consolidation; waiver.

1.421(1) Every defense to a claim for relief in any pleading must be asserted in the pleading responsive thereto, or in an amendment to the answer made within 20 days after service of the answer, or if no responsive pleading is required, then at trial. The following defenses or matters may be raised by pre–answer motion:

a. Lack of jurisdiction of the subject matter.

b. Lack of jurisdiction over the person.

c. Insufficiency of the original notice or its service.

d. To recast or strike.

e. For more specific statement.

f. Failure to state a claim upon which any relief may be granted.

1.421(2) Improper venue under rule 1.808 must be raised by pre–answer motion filed prior to or in a motion under rule 1.421(3).

1.421(3) If the grounds therefor exist at the time a pre–answer motion is made, motions under rule 1.421(1)“b” through 1.421(1)“f” shall be contained in a single motion and only one such motion assailing the same pleading shall be permitted, unless the pleading is amended thereafter.

1.421(4) If a pre–answer motion is made under rule 1.421(3), any matter specified in rule 1.421(1) or 1.421(2) which is not included in the motion is waived, except lack of jurisdiction of the subject matter or failure to state a claim upon which relief may be granted.

1.421(5) Sufficiency of any defense may be raised by a motion to strike it, filed before pleading to it.

1.421(6) Motions under this rule must specify how the pleading they attack is claimed to be insufficient. [Report October 31, 1997, effective January 24, 1998; November 9, 2001, effective February 15, 2002]

AND

D. Time, filing, and notice

requirements

Rule 1.441 Time to move or plead.

1.441(1) Motions. Motions attacking a pleading must be served before responding to the pleading or, if no responsive pleading is required by these rules, within 20 days after the service of the pleading on such party.

1.441(2) Pleading. Answer to a petition must be served on or before the date prescribed in accordance with rule 1.303. A party served with a pleading stating a cross–claim against the party shall serve an answer thereto within 20 days after the service of the pleading upon the party. The plaintiff shall serve a reply to a counterclaim in the answer within 20 days after service of the answer, or if a reply is ordered by the court, within 20 days after service of the order, unless the order otherwise directs.

I’ve been working on my answer, affirmative defenses and counterclaims, but I just read (once again) Iowa’s RCP, and now I’m not sure how to proceed.

Please HELP! Anyone????

[Recovering Attorney]

Put in an answer. Admit the obvious things, deny all the others. Then, state

AS AND FOR AFFIRMATIVE DEFENSES

1. The Court lacks subject matter jurisdiction over this action

2. The Court lacks personal jurisdiction over the defendant.

3. The action is barred by the statute of limitations. ( if that is true)

4. The action is barred by the statute of frauds.

5. Upon information and belief, the plaintiff lacks the legal capacity to bring this action. ( see if they are licensed to do business in your state)

6. The plaintiff lacks standing to bring this action.

7. Upon information and belief, the Court would unjustly enrich the plaintiff if it grants the relief requested.

8. PLaintiff fails to state a cause of action against the defendant.

Wherefore, the defendant asks for a judgment dismissing the complaint herein, plus such other, different and further relief, including costs, as the Court finds proper.

Sign it, put your name, address and phone on it, file the original with the clerk of the court, send a copy to the plaintiff.

You will have a chance to move to dismiss because of the service, but don't waste yout effort on that just yet. How clsoe is it his to the SOL?

[CSCHANGES]

Hello I Am New Here, Read Some Things Here And This Site Is Very Helpful. But I Have A Problem.

I Had A Dell Account And Because Of A Seperation From My Husband Where As I Had To Pay My own Rent Utilities Etc. I Could No Longer Afford To Pay It. So It Went Into Collections/charge Off

two Years Later, So I Was Recieving Phone Calls And Letters From Oxford Management Making A Settlement So I Waited For A Deal That I Could Afford My Bill Charged Off At $2,000. And The Letter Was Settling For $765. So I Was Willing To Accept That So I Call And The Collection Rep. Told Me That If I Paid $500 Today That I Would Owe Nothing And That The Account Would Be Listed As Current,paid,closed.

So My Brother Used His Credit Card To Pay It. So The Company Sent My A Letter Stating That Upon Clearance Of Funds This Account Is Settled In Full And This Information Will Be Forwarded To The Creditor. So After Payment I Disputed It, Oc Stated That There Was No Payment Recieved And It's About A Month Later.

They Charged My Brother Card Again For The Same $500. A Month Later. So We Speak To The Same Guy And He Said It Was A Mistake And A Check Will Be Sent Out. It's Been A Week And We Still Haven't Recieved It. But He Keeps Telling Me That Everything Is All Right And It's Been 2 Months And Nothing Has Happened. I Called The Oc. And They Said That They Will Send A E-mail To Oxford To Verify Info. But When I Call Oxford And Spoke To Someone Other Than The Person I Dealt With They Say I Still Have A Balance And It's Impossible That He Settled For $500 On A $2000 Account. Even The Oc Said The Same Thing. What Should I Do?

[GreatGadsby]

please try to break your post into readable paragraphs.

if your brother is still within 60 days from when he got the CC bill where they charged the 2nd $500, dispute it with the CC company as a duplicate and unauthorized charge.

[what_now]

thank-you for responding recovering attorney. I've read a lot of your posts and am going with a lot of what you say. The SOL runs out in another 11 months and this particular attorney will refile if this is dismissed w/o prej based on untimely service. Most of my research has been on this attorney AND how the judge rules on these particular cases in my county.

My goal is to get this dismissed w/prej, which is why I chose not to file a motion to dismiss based on untimely service. I want the attorney to know that I'm not an easy target by filing an answer w/ counterclaims. I will post my answer and defenses in a little bit. I'm taking your advise and keeping things simple so I don't annoy the judge and appear to have copied stuff off of the internet.

[what_now]

They are licensed in my state.

Wow, I think this is the first time I’ve seen you suggest to include unjust enrichment.

Plaintiff lacks standing? Is that challenging the assignment?

Here’s what I have so far……

ANSWER

Comes now, Lil ‘ol me, in answer to plaintiff Greedy Scumbag’s complaint.

1. Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the allegations contained in the complaint, and based on that, denies generally and specifically each and every allegation and leaves Plaintiff to provide proof.

AFFIRMATIVE DEFENSES

2. Plaintiff failed to state a claim upon which any relief may be granted.

3. Court lacks personal jurisdiction of the subject matter due to untimely service of process 1.302(6)

4. Plaintiff lacks the legal capacity to maintain the action.

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

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

7. 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; 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.

8. Plaintiff’s complaint further fails to allege that the Assignor even has knowledge of the 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

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

10. Defendant states that Plaintiff’s claim is precluded as Plaintiff failed to follow validation procedures as required by FDCPA 15 U.S.C § 1692g, which include, but are not limited to, obtaining and providing validation of the alleged debt from the original creditor.

11. Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time.

My answer is one paragraph because that’s all there was on the original notice:

YOU ARE HEREBY NOTIFIED that the plaintiff demands from you the amount of a gazillion dollars plus the following incidental charges: Interest at the rate of 27.99% from blah blah or the date of default to the date suit was filed in the amount of another gazillion and costs. Total amount requested $gazillion x 2. This demand is based on the failure to make payments on a credit card account originating with PROVIDIAN NATIONAL USERUS CHARGING BAFOON BANK. UNLESS YOU APPEAR by completing and filing the attached appearance and answer form with the (overpaid) clerk of the court at the Courthouse in Little Bitty Town, Iowa within 20 days after service of this original notice upon you, judgment shall be rendered against you upon plaintiff’s claim together with interest and court costs.

2nd page

PLEASE CHECK ONE

_____I HEREBY enter my appearance and DENY the claim of the plaintiff

_____I HEREBY admit the claim

At least 90% of the people served in this state resign themselves to a default judgment. Those that deny it usually just check that option and send it in. Only half of those that do that, actually show up for court and the judge in my county usually wants to see more proof giving the attorney an extra 30 days. Sometimes the attorney produces something, sometimes he doesn’t. The only case I’ve seen where someone filed counterclaims had an attorney and they mutually dismissed w/prej which is my goal. I’ve probably looked at over a 500 cases (via internet) so my statistics here are an approximation.

My strategy is to force this attorney to want to file a mutual dismissal w/prej. He files tons of lawsuits in this state every day and usually appears by phone if at all.

What I still don’t know is: If the attorney receives my answer and decides he wants to dismiss, does that dismiss the whole darn case or do I have a say, especially since I will file some counterclaims???? Not that I’m looking for money, I just want him to sign a settlement agreement that I will draft before agreeing to dismiss WITH prejudice.

[willingtocope]

Yep, I was right...you know more about Iowa law than I do. Sorry.

Only thing I can offer is encouragement. Stand up to them..at the very least, get your say in court!

Let us know how it turns out...

[Gracie]

The only case I’ve seen where someone filed counterclaims had an attorney and they mutually dismissed w/prej which is my goal. I’ve probably looked at over a 500 cases (via internet) so my statistics here are an approximation.

Where did you go to research these cases? I've tried Iowa courts online, but you have to pay a monthly fee.

[what_now]

Dismissed without prejudice!

We never even went to court. I simplified my affirmative defenses and I did not file counterclaims. The attorney filed a dismissal without prejudice about 10 days before the trial date! Woo Hoo!

I found out about it on the Iowa Court website. I went to the courthouse to get a copy of the dismissal, and oh yeah, I sent the attorney a DV the day after the dismissal was filed with the court - making it a "timely dv." (within 30 days of his initial contact) So, if he does refile, he'll have that hurdle to deal with!

I've actually known about this for a week or two but haven't been on CIC in a little while - needed some down time. I want to especially thank Recovering Attorney - If I ever win the lottery I'm gonna hook you up!

Now that this lawsuit is done, I'll tell everyone that this was the cruddy JDB known as First Resolution Investment! Mikey, I've been watching your lawsuit with them and I'm cheering you on!

If anyone from Iowa is dealing with this lawsuit drama, please feel free to pm me. Especially if the attorney is from Cedar Rapids - I know of this lawfirm.

Thanks again CIC!!!

[Recovering Attorney]

Glad it worked out for you!!! Now, go win that lottery, ok??

[willingtocope]

Way to go!

[suki]

Hi what_Now,

WOW THAT IS AWESOME!!!!!