Failure to State a Claim

[Strawberry Bird]

In law talk, what does

Failure to State a Claim

mean??

I see it talked about as a MTD but what exactly did the plaintiff not do? What constitutes a that they did or didn't do it?

Hope that is clear.

SB

[nascar]

In order to be granted relief in a lawsuit, you have to have a claim for which relief can be granted. If you don't, the suit may be dismissed for "failure to state a claim." For example, if you allege in your suit that the defendant violated a certain statute or caused actual damages to you through some act they did; that is a claim. Conversely, filing a suit against a CA for example, because they were "mean" to you or they are reporting a debt on your credit report after you asked them not to, is not a claim for which relief can be granted.

[Strawberry Bird]

okay so in my situtation, the JDB files a Complaint against me, and included my husband (who was not on the orig acct, but we are in a community property state).. How do you use a MTD ?

[nascar]

What is the JDB alleging in the complaint?

[Strawberry Bird]

here is what it says ((all underlines or bolds are mine));;;

The charges: Most of this is exactly as on the Complaint:

1. Plantiff is a Limited Liability company duly organized and existing under the laws of the State they are in

2. Defendants are residents of [My County] St of AZ and at all times material hereto the Defendant [strawberry Bird] was acting on behalf of her marital community.

3. Defendant John and Jane DOES I-V are fictiously name for the reason that Plaintiff is unaware of their true and correct names. This Complaint will be ammended to insert their correct names when the same are ascertained.

4. The Def, [strawberry Bird] entered into a contract with [OC] entitling her to make purchases on credit. A copy of the standard contract utilized by [OC] is attached hereto as Exhibit A and incorporated herein by reference. On or about Month day 2004 said contract was assigned or otherwise transferred to Plantiff.

5. Defendant [ME] breached her contract with [OC] by failing to maintain monthly payments on the balance due and owing pursuant to the contract. The balance due, including all finance charges through the date of charge off was $XXk+. Partial payments have been made leaving a balance of $AMT. See Exhibit B attached hereto and incorporated herein by reference.

6. Up to the time of assignment, [OC] had performed all of the conditions of the contract that it was required by the contract to perform, and since the date of assignment Plaintiff has fully performed all of the conditions of the contract that Plaintiff was required to perform.

7. Plaintiff has demanded that Defendant perform her obligations under the contract.

8. Defendant has failed and refused, and continues to fail and refuse to pay the amount due.

9. This action arises out of a contract and as a result, the Plaintiff is entitled to recover its reasonable attorney's fees and costs pursuant to the contract and/or law. If the Defendant fails to answer this complaint and Judgement is taken by default, the reasonable attorney's fees requested by Plaintiff are $AMT.

WHEREFORE, Plaintiff requests Judgement against the Defendants, and each of them, as follows:

(I am abreviating the rest)

1. For the sum of $amt, plus interest theron as provided for by contract and law.

2. For reasonable atty's fee

3. For reasonable atty's fees if defaulted..

4. For plaintiffs court costs

5. For such other and further relief

Exhibit A- Standard CC contract which was dated 7-98 at the end of it.

EXHIBIT B - Last Statement Details.. it is actually the Charge Off information.

[nascar]

This is a very poorly written complaint. Have you filed an answer yet?

[divemedic]

How do you sue a John Doe for a credit card obligation?

This may be time barred.

There are many other other issues here.

[nascar]

How do you sue a John Doe for a credit card obligation?.

It basically a catch-all that serves as a reservation of rights.

[Strawberry Bird]

I thought it was badly written also but I have been trying to get some more experienced help here and on another board.. everyone seems afraid to voice their opinion and suggestions.. I posted the complaint a day or so after being served .. SO thanks!!! (don't mean to sound like Im whining,,, but I guess I am)

I have to file by Monday.. I have spent the last couple of weeks reading posts, civil procedure, statutes etc. and trying to get a decent answer and defense together.. ANY suggestions, please and Thank you!

SB

[Strawberry Bird]

Oh that John Doe and Jane Doe both 1-V and John Doe SIRNAME issue has been a pain too.. I don't know what to do with it.. The card was only in my name and even the Cardholder Agreement they attached says only the agreement is between cardholder and CO (unless it was set up as Joint acct) which it was not.. And I have NO idea why they put all those other DOE's in there.. stupid..

SB

[vialna]

this might answer some of your questions...read it thouroughly:

http://www.floridadebtor.com/viewtopic.php?t=175

also this:

http://www.floridadebtor.com/viewtopic.php?t=174

[Strawberry Bird]

I am reading those links, but I am in Arizona.. in addition, I have been reading day and night since being served and I am now down to the wire.. Everyone just says read, read read.. well that is not getting me any answers..

I can't even seem to find out if in Arizona I can file a MTD for time-barred action. Or if I do that before or after I file my answer.. THEY even attached a "final charge off statement" as an exhibit and that statement shows it is outside of the SOL. (so long as the judge agrees that a CC is an open account)

Maybe I just don't understand the process...

The complaint is written horribly.. it actually mostly states facts according to them.. .. anyway..

just beating my head I guess.

[vialna]

suggestion call court house, ask if you file a mtd first...then the next day your answeres...of if you can request that they both be heard on the same day...they should still be separte forms not one together...i dont know az law

but thats what i would suggest...i would think you would do mtd first...listing your reasons...out of sol...attach #1 statement showing out of sol

attach #2 paper that shows reasons it is out of sol..example statue stating what makes it X number of years for oral, or X number years for written

also i would think if the judge rules in favor of your mtd its over...

then if judge dismisses your mtd, you need to fall back on your answers...

thats how i would think it would followlll

hope this helps

[Strawberry Bird]

It looks like in AZ Civil Procedures I have to use the Statute of Limitations as a defense first. It is not listed as a reason to Motion to Dismiss. I know I am probably all screwed up but it is way too late now.

I have to file tomorrow (and serve Plaintiff).. Monday.

I could have used the Failure to State a Claim for which relief can be granted as a Motion to Dismiss before the answers etc.. but I didn't understand what it was nor do I have enough legal understanding to actually put together a Motion. So I will have to list it as a defense instead.

I can still use as a MTD later. (and I still don't know how to deal with all the Doe's listed on the Complaint.. I "think" plaintiff has a certain amount of time to ammend and then they can't w/o my okay.

SB