minxcomp1 Posted February 17, 2009 Report Share Posted February 17, 2009 Yesterday I was served papers for a supposed cicibank card that I never had. My questions are that in the "attested affidavit and statement of account" there is an "Exhibit A" which is supposedly a written contract attached to the complaint and "Exhibit B" which is the attested affidavit... from the CA saying that this is my debt. The exhibit A is not included in the papers that i got nor are they in the courthouse papers, is that legal? Are they hoping I will fight only to whip that out during court? I have contacted their lawyer and they admittedly told me that they do not have the contract and they are waiting to get it from the CA. How can they put it in the paperwork if they dont know it exists? Also, there isnt really anything to answer on the small claims complaint so do I need to do so? The complaint is as follows:THEMvs.MEI, the undersigned, being duly sworn upon oath deposes and claim that the defendant is indebted to the plaintiff in the sum of $XXXX.XX as of October 22 2008 for breach of contract on note, agreement for credit or retail installment contract, plus contractual interest as called for in the agreement at 23.99%, and that the plaintiff, CA has demanded payment of said sum; that the defendant, me resides at, my address, that the plaintiff, CA, resides at, their address. plaintiff acquired on Jan. 4, 2007 for a valuable consderation, all right, title and interest in the account heretofore stated originally owed by the defendant. Plaintiff seeks judgement for the amount claimed above plus costs of this action.signed,THEMAlso, the attested affidavit... is dated 10/19/2007!!!I have no history of this card on my credit reports, they have no written contract (even though they say they will) and no billing statements...does this mean they have no case?? Thanks for the help and sorry for so many questions at once..Kevin Link to comment Share on other sites More sharing options...
admin Posted February 17, 2009 Report Share Posted February 17, 2009 I'd answer it and deny the allegation. (Are you sure this is everything contained in the complaint?)This complaint was written in the most slipshod manner imaginable. It's wide open as far as affirmative defenses. There is not one shred of evidence in it. Read this: http://www.creditinfocenter.com/legal/ive-been-sued.shtml Link to comment Share on other sites More sharing options...
minxcomp1 Posted February 17, 2009 Author Report Share Posted February 17, 2009 That is the entire complaint... i typed it in word for word...there are only 3 pieces of paper that were served to me..the summons to appear, the complaint (see previous post) and Exhibit B which is the attested affidavit I also touched on above..Can I just move to dismiss on lack of evidence? Link to comment Share on other sites More sharing options...
minxcomp1 Posted February 17, 2009 Author Report Share Posted February 17, 2009 ..also, the address listed for the CA is different than the one on the ACA website if that makes any difference...sorry for the double post Link to comment Share on other sites More sharing options...
admin Posted February 17, 2009 Report Share Posted February 17, 2009 get to work filing your answer! Link to comment Share on other sites More sharing options...
minxcomp1 Posted February 17, 2009 Author Report Share Posted February 17, 2009 hows this....IN THE CIRCUIT COURT OF THE STATE OF <my state>FOR THE COUNTY OF <my county>Case # <case #>them PLAINTIFFvs.me DEFENDANTDefendant’s Answer to ComplaintI, the defendant, me, disputes the alleged debt as solicited in the complaint made by the plaintiff, them, as to said debt due to lack of evidence. The Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and on that basis generally and specifically denies the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof. The Plaintiff has failed to provide any contract or agreement bearing the signature of the Defendant, nor any itemized statements of billing for said debt. Upon several logged calls to the plaintiff’s attorney, their attorney, the defendant has not been supplied with the required evidence to prove this debt. Upon contact to the original creditor, CITIBANK SOUTH DAKOTA, N.A. there is no evidence that said debt ever existed. Also, upon many attempts to contact the plaintiff none of the defendants attempts were answered. AS AND FOR AFFRIMATIVE DEFENSESAs and for a First Defense: Plaintiff admits to purchasing the defaulted debt allegedly owed by the Defendant, causing Plaintiff's injury to its own self, therefore Plaintiff is barred from seeking relief for damages.As and for a Second 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.As and for a Third 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.As and for a Fourth Defense: Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff.As and for a Fifth 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.As and for an Sixth Defense: The Plaintiff is not an Assignee for the purported agreement and no evidence appears in the record to support any related assumptions.As and for a Seventh 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.WHEREFORE, the defendant asks the court for judgement:a. dismissing the complaint herein with prejudice.Respectfully,me Link to comment Share on other sites More sharing options...
minxcomp1 Posted February 18, 2009 Author Report Share Posted February 18, 2009 anyone have any thoughts or suggestions? Link to comment Share on other sites More sharing options...
admin Posted February 18, 2009 Report Share Posted February 18, 2009 Add "Failure to state a cause of action"Add "Failure to have a legal capacity to sue" Remove Affirmative Defense#1. Link to comment Share on other sites More sharing options...
OMGWhatHaveIdone Posted February 18, 2009 Report Share Posted February 18, 2009 AND NOW Comes,the defendant, me, to answer the summons in the above captioned matter. Defendant disputes the alleged debt, as solicited in the complaint made by the plaintiff, them, as to said debt due to lack of evidence. The Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein. and On that basis, the Defendant generally and specifically denies the allegation contained therein, and demands leaves the Plaintiff to provide strict proof therof. proof. Defendant demands strict proof thereof. The Plaintiff has failed to provide any contract or agreement bearing the signature of the Defendant, nor any itemized statements of billing for said debt. Upon several logged calls to the plaintiff’s attorney, their attorney, the defendant has not been supplied with the required evidence to prove this debt. Upon contact to the original creditor, CITIBANK SOUTH DAKOTA, N.A. there is no evidence that said debt ever existed. Also, upon many Several attempts by the Defendant to contact the plaintiff have been ignored.none of the defendants attempts were answered. I took the liberty of revising your opening paragraph to read more legalese like. Please see above. My replacement words are in red bold as a reference ONLY and not to be bolded in your actual answer. Any words you should remove, have been underlined because there's no option to strike through words on here. Also, there is never a comma after the word "and". Since you are doing this on your own, I hope you don't find offense to that. I just wanted it to look as professional as possible. Link to comment Share on other sites More sharing options...
minxcomp1 Posted February 19, 2009 Author Report Share Posted February 19, 2009 NO OFFENSE TAKEN. OMG!!! I just appreciate all the help you guys offer here and will take my revised version to the courthouse tonight after work!! Thanks ADMIN and OMG again and I will keep you posted after my march 2 court date to let you know how well my answer worked. I cant wait to smack these LOSERS down..Actually OMG, I got most of that answer from various locations on this site so I couldnt take offense if I wanted to, but ADMIN might....lol8-) Link to comment Share on other sites More sharing options...
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