Answer to summons - accounts discharged in BK

[RTRider]

I am in the process of filling an answer to a summons requesting payment on 4 accounts included in my discharged chapter 7 bankruptcy. I have been scrambling to see an attorney. The best I have been able to get is a quick phone consultation. With my 21 days fast approaching the attorney’s advice was to file the answer on my own with a request to dismiss due to the BK.

I have been assembling the answer with help from the state of MI web sites and this forum. I have run into some difficulty answering some of the complaint and constructing the request to dismiss. Any recommendations or comments on the following would be appreciated.

The complaint has my correct address but it states, “The jurisdiction is proper because the defendants are located in XX County. My address is actually in the adjacent county. Should this be answered and how would it be phrased?

My ex wife is named in the complaint as a co-defendant. She has yet to be served and was advised by an attorney to answer on her own when served. Should I follow that lead and answer the complaint as an individual?

I did not receive a response from my DV letter so I plan to answer most of the paragraphs as follows, “In response to paragraph XX, Defendant is without sufficient information or belief to admit or deny the allegations in this paragraph, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof”.

The account numbers have been slightly changed in the complaint with a 9 preceding the original account numbers. Should that be answered in a different way?

A paragraph in each count indicates there are copies of the promissory note and contract for each account attached as exhibits A, B, etc. There were no such copies provided to me. How should I answer these paragraphs?

Should the BK details be place in the defense section?

How should the request to dismiss due to bankruptcy be phrased? Should it be placed in the Prayer for Relief section?

Thanks

[flacorps]

Use BK discharge as an affirmative defense, attach discharge and schedule as an exhibit, and counterclaim for damages for violation of the BK permanent injunction.

[jq26]

Flacorps is 100% right. And then please update the board for the benefit of others in similar situations.

[annabananasf]

You'll have to check with an attorney or with your local rules of civil procedure, but instead of an answer, look into whether you can file a "demurrer" -- this is a motion that states the complaint is defective on its face, and the fact that these accounts were discharged in BK is an incurable defect, and you'll want the demurrer sustained w/o leave to amend. If in your favor, the case will get dismissed without going any further.

[flacorps]

You'll have to check with an attorney or with your local rules of civil procedure, but instead of an answer, look into whether you can file a "demurrer" -- this is a motion that states the complaint is defective on its face, and the fact that these accounts were discharged in BK is an incurable defect, and you'll want the demurrer sustained w/o leave to amend. If in your favor, the case will get dismissed without going any further.

Demurrer is an older term still used in some places. In others the terminology is "motion to dismiss" ... in either case, it's possible that the BK injunction is something that can be raised ahead of filing an actual pleading responsive to the complaint (answer & affirmative defenses).

It may be in your rules of civil procedure, there may be case law that lays it out, or it may even be a matter of local practice or local rules of procedure or even just custom and usage. You may want to check it out, although with an injunction in place it's unlikely that even failure to raise the defense and a default would prejudice the OP.

It might make sense for the OP to, in a gentlepersonly fashion, simply contact the creditor's attorney and suggest that he look up that discharge on Pacer and dismiss on his own accord before the OP costs him more time and money by going after him and his client.

[annabananasf]

Demurrer is an older term still used in some places. In others the terminology is "motion to dismiss" ... in either case, it's possible that the BK injunction is something that can be raised ahead of filing an actual pleading responsive to the complaint (answer & affirmative defenses).

ah, OK, thanks. maybe it's just a california thing then .... here demurrer is an option before filing an answer (and an answer's not due until after the demurrer is resolved). a motion to dismiss would be an option after filing an answer.

[flacorps]

In many jurisdictions the pleading to end the case after filing the answer but before trial would be either a motion for judgment on the pleadings (in the event no additional evidence had been adduced), or a motion for summary judgment (assuming evidence in the form of admissions, interrogatory responses or depositions showed an absence of justiciable issues).

[annabananasf]

we have those here too! I think we have a motion for just about every scenario

[Methuss]

Don't forget to contact the lawyer that handled you BK case to have the collector brought up on a motion for sanctions in Federal Bankruptcy Court and for FDCPA violations.

It is not your duty to police every debt collector to ensure they obey the permanent injunction. It *is* their duty to check BANKO to make sure they are not violating the injuction and the FDCPA before they file suit.

[annabananasf]

since I was a little confused about the whole motion to dismiss thing, I thought I'd check the rutter guide.... this applies to california only:

1. [7:370] No Statutory Basis for Challenging Pleadings: There is no statutory authority for using a motion to dismiss as a method to challenge opposing pleadings. Under the Code, dismissal motions lie only on specified grounds, including nonjoinder of necessary parties (CCP § 389(, see ¶ 2:188) and delay in service of summons or prosecution of the action (see CCP §§ 581, 583.110 et seq., discussed in Ch. 11).

But several cases hold a motion to dismiss may serve the same function as a general demurrer. Despite lack of statutory authority, courts may assert their inherent judicial power to dismiss cases in which no valid cause of action or defense is stated.

“(W)here the question is whether a complaint states a cause of action against a defendant, that question is always available whether demurrer be filed or not.” [McKay v. County of Riverside (1959) 175 CA2d 247, 249, 345 P2d 949, 950]

a. [7:371] Other applications: Some cases suggest the nonstatutory motion can also be used in other circumstances.

For example, where a complaint was filed without the authority of some of the named plaintiffs, “the appropriate remedy is not a motion to quash service, but perhaps a nonstatutory motion to dismiss.” [baker v. Boxx (1991) 226 CA3d 1303, 1312, 277 CR 409, 414]

b. [7:372] Compare—federal practice: Demurrers are not used in federal practice (see FRCP 7©). A motion to dismiss is the primary method for challenging pleadings (see FRCP 12().

2. [7:373] As Defendant's Initial Pleading: According to case law, a motion to dismiss may be substituted for a demurrer as the defendant's first pleading. [barragan v. Banco BCH (1986) 188 CA3d 283, 299, 232 CR 758, 767]

a. [7:374] Caution re entry of default: However, it is not clear whether a motion to dismiss would be recognized by a court clerk as one of the “permitted responses” to prevent entry of default (see ¶ 5:31).

b. [7:375] Bar to later demurrer? If the motion to dismiss is denied, one court says it is treated as “a demurrer overruled without leave to amend” (whatever that is!). [barragan v. Banco BCH, supra, 188 CA3d at 299, 232 CR at 767]

Comment: It is not clear why a motion to dismiss should foreclose later demurrers on the same or different grounds. But the matter is very unclear. It is better to avoid the problem and stick to demurrers!

3. [7:376] Demurrer Rules Generally Apply: As a substitute for general demurrer, a motion to dismiss for defective pleadings is generally subject to the rules pertaining to a general demurrer. Thus, the motion should be confined to matters appearing on the face of the pleading under attack or of which the court can take judicial notice. See ¶ 7:39 ff.

[thomassl]

Don't forget to contact the lawyer that handled you BK case to have the collector brought up on a motion for sanctions in Federal Bankruptcy Court and for FDCPA violations.

It is not your duty to police every debt collector to ensure they obey the permanent injunction. It *is* their duty to check BANKO to make sure they are not violating the injuction and the FDCPA before they file suit.

Methuss took the words right out of my mouth! When this happens, your first course of action is to contact the attorney who handled your bankruptcy initially!

[Recovering Attorney]

for now, I would deny the allegations, place BK and improper venue as defenses, and file t he answer. Then find a good ;awyer near you that is a NACA member. I think you'll do better suing the stay violation in fed court than as a counterclaim in a lower civil court

[RTRider]

With the help provided in the forum I was able to write and submit my answer to the summons. I received a scheduling order with a case evaluation date. The order indicated the pleadings were satisfactory - thanks. The original records are lost and I have not received any information from the debt collector but an attorney thought the loans may be funded by a non profit and subject to 523(a)(8). I will be off to see an attorney this week about the case and doing more study in other forums. Thanks again.