Feedback requested on Summons response

[mamom]

Hello,

Here's what I have compiled so far to use to answer the summons I received. (The alleged debt is within SOL, has been charged-off by the OC, CA is claiming to be acting on their behalf.)

Usual heading, then:

ANSWERS AND COUNTERCLAIM

Defendant ME, answering the Complaint of the Plaintiff, asserts:

1. In response to paragraph #1, the Defendant lacks sufficient knowledge to admit or deny the statement.

2. In response to paragraph #2, the Defendant admits.

3. In response to paragraph #3, the Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegation, and on that basis generally and specifically denies the allegation contained therein, and demands the Plaintiff provide strict proof.

AFFIRMATIVE DEFENSES

1. As and for a First 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.

2. As and for a Second 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.

3. As and for a Third Defense

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

4. As and for a Fourth 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.

5. As and for a Fifth 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.

6. As and for a Sixth 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.

7. As and for a Seventh 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.

8. As and for an Eighth Defense

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

~~~

What else if anything do I need to include? They haven't done anything outside the law as far as collection activities are concerned, (nothing obvious anyway) but I would like to counterclaim for any legal fees/expenses incurred if they pursue the issue. Does the wording I used in 8 allow for that? Or must I include the counterclaim with my answer?

Last night I was reading about Cause of Action. The summons wasn't properly prepared based on what I read about COA, so would entering a Motion to Dismiss for failure to state a cause of action, rather than answering, be worthwhile?

This is what they stated in the complaint: " The Defendant owes the Plaintiff the sum of $$$$ for the unpaid balance due for money loaned the the defendant by the plaintiff's assignor on a creditccard account."

Thanks for any input,

MAMom

[cjtx]

File your response first, and then file your motion to dismiss.

Your response is still missing the part where you tell the judge what is it you expect exactly.

For example something like: WHEREFORE, PREMISES CONSIDERED, defendant prays that:

a. Plaintiff's complaint be dismissed.

b. Defendant be granted judgment for all costs of court.

c. Defendant be granted all further relief to which Defendant is justly entitled.

etc....

I am not a lawyer, so use it at your own risk.

[mamom]

cjtx wrote: File your response first, and then file your motion to dismiss.

Thanks for your reply, I appreciate it.

I'm doing more research about motions, well about all of this stuff actually, and what I've found is that The "Flurry of Motions" takes place prior to submitting your Answer.

Motions are filed first, so you would not have to file an answer if the Motion is accepted.

Also, your Counterclaim must be filed with your Answer.

Thank you,

MAMom

PS it's obvious if you read all my posts, but I'm not an attorney and things may be different in your state/case.

[IHateCAs]

I haven't even read their complaint, and I'm fairly certain most of your ADs are a waste of paper.

[mamom]

The complaint is in my post above. Here it is again:

This is what they stated in the complaint: " The Defendant owes the Plaintiff the sum of $$$$ for the unpaid balance due for money loaned the the defendant by the plaintiff's assignor on a credit card account."

I found the AD's here at this forum. Are you saying the information found here is not valid/useful? Not sure I understand why you are saying they are a waste of paper? After seeing the complaint, what would you recommend for AD's?

Thank you,

MAMom