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Can someone help me with my answer?


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View Summons Page 1: http://usera.imagecave.com/quick-o/summons_pg1.gif

View Summons Page 2: http://usera.imagecave.com/quick-o/summons_pg2.gif

Note that "R" is not my middle initial.... And I do not owe this debt. It is not mine!

Please help me prepare my answer for the state of KY. I don't have money for a lawyer, I live on my disability payment.

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Guest Lecasbas

Your 20 days have long passed to answer this complaint. When and how did you get these documents that you posted?

Has the plaintiff filed for default judgment?

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Guest Lecasbas

The clock starts upon service. Looks like you have 19 days left to answer.

Go to your courts online and do a search for the plaintiff. You will probably find several cases. Look for the ones which were dismissed. Here you will most likely find the cases where the defendant answered the claim. Here will be your model for your answer. You should also find cases with affirmative defenses and counterclaims. You can also go here:

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=252142

Page down until you find affirmative defenses and then down more until you find counterclaims. Read through these and see which ones fit your situation.

The answer is pretty simple. Since the debt is not yours, you would deny points 1 and 2. In point 1 you do not know of any agreements between Portfolio and the OC. You cannot admit to this because of this lack of info. You would deny.

At the end of the Answer you would respectfully request that the claim be dismissed and that all costs be assessed to the plaintiff.

You would also send in affirmative defenses and counterclaims with your answer. These will be a little more time consuming because you need to understand what the plaintiff has done wrong and what defenses and counterclaims apply. You can do it.

This should keep you busy for a while. Come back as you have questions.

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Remember our Kentucky laws gang. Assignees must aver the amount paid for the assignment and can only sue for that amount.

Also, don't forget that your disability income is exempt from creditor claims.

Please, remove your personal information from the documents.

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You need more than a general denial. While I don't think you have to roll out 100 affrimative defenses, I would put int the limitation Nascar suggested, plus the usual lack of standing, lack of capacity ( if they aren't authorized to do bidness in the Commonwealth) , unjust enrichment and statute of frauds.

I've been researchig the statute of frauds and can't seem to make it apply to credit card debt assuming the assignee Credit Store is credit card debt.

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About my name having the wrong initial could this be an affirmative defense:

Defendant asserts a misnomer. “R” is not nor never has been a part of defendant’s name. Plaintiff has failed to prove that the Defendant served is the actual party they intended to sue.

Also would I have to include an exhibit, an affadavit, testifying of my real and correct name?

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Guest Lecasbas

Saying that the debt is not yours has more than one meaning. The debt could not be yours because the amount is not correct, your name is misspelled, the wrong account number is on the debt...these things all cover the debt not being yours.

If you are saying that I've never done business with any of these people then maybe you should be filing an identity theft report.

If the summons correctly identifies you, except for the R, then filing an identity theft report would show that you are serious about the debt not being yours. You could also ask what procedures that the plaintiff had in place to verify that the debt was yours.

I wouldn't rely on the R as a defense. These are common mistakes overlooked by most courts.

What you should be concerned with is the assignment that the OC gave the CA. One of your affirmative defenses, then, should be that the plaintiff lacks assignment. You can word it anyway you want just as long as you ask for assignment. This is a biggie and the CA's usually don't have it.

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Guest Lecasbas

Well...let me put it to you this way...I can't find any of my cases by using my middle name because the system has mangled it. It's easier to go around it and just use my first and last only.

No one cares about your middle name being spelled wrong, they just go around it and work things through to the other end.

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I'm having a hard time just figuring out civil procedure. I don't want my answer/defense to be rejected.

I'm trying to determine if I need to include the Plaintiff's paragraphs in my answer.

I found this in my local rules and I'm not sure whether it applies to answering a complaint. Any input will be appreciated:

Answers to Interrogatories . A party answering interrogatories or requests for

admission shall, as part of the answer, set forth immediately preceding the

answer, the question or the request made with respect to which such answer is

given.

My local rules here: http://apps.kycourts.net/localrules/rules/D22localrules.pdf

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Guest Lecasbas

Nope. This is for, as it states in the first few words, Answers for Interrogatories, not your answer to the original complaint.

In your answer you simply either deny or admit to the points of the claim. I reviewed the complaint and what you have said in this thread and you would deny both points. At the end you would counter the plaintiff's request for judgment by requesting that the complaint be dismissed and all charges be assessed to the plaintiff.

Next, on a separate piece of paper, list your affirmative defenses. Assignment from the OC to the CA should be one. Go to the list of motions and such I gave a link to earlier. You'll find several others to choose from.

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=252142

Then your counterclaims, also on a separate piece of paper. You can go to the same list to see which ones will work for you.

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Thanks! One more question. Does it matter which order your affirmative defenses are listed? Will the judge consider the first one most important and the last one least important?

The order in which your defenses are listed on your answer does not matter one bit. Here is a copy of my answer I filed in response to a complaint which resulted in a dismissal by the plaintiff :) Just tailor it to your states requirements which shouldn't be too hard... Any questions, lemme know!

IN THE CIRCUIT COURT OF THE CITY OF ST. LOUIS

ASSOCIATE JUDGE DIVISION

STATE OF MISSOURI

MIDLAND FUNDING LLC, ASSIGNEE OF

XXXXX

Case No: 999999

Plaintiff, Division: 99

ANSWER TO COMPLAINT / AFFIRMATIVE

Vs DEFENSE(S)

JANE DOE

Defendant.

ANSWER OF THE PLAINTIFF

Defendant, appearing pro se, for its reply to the Complaint naming MIDLAND FUNDING LLC Plaintiff as follows: All answers correspond to the numbered paragraphs of the Complaint(s). All allegations of the Complaint(s) are denied unless expressly admitted herein.

ANSWERS TO COUNT 1

1. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment per Rule 55.07.

2. Admit.

3. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment per Rule 55.07.

4. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment per Rule 55.07.

5. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment per Rule 55.07.

6. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment per Rule 55.07.

ANSWERS TO COUNT 2

1. As to the incorporated reference of paragraph 1 of count 1 Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment. As to the incorporated reference of paragraph 2 of count 1: Defendant has previously Admitted that averment..

2. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment per Rule 55.07.

3. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment per Rule 55.07.

4. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment per Rule 55.07.

5. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment per Rule 55.07.

DEFENSES

1. Midland Funding LLC has not proven that they are authorized and licensed to collect claims for others in the State of Missouri, or solicit the right to collect or receive payment of a claim of another.

2. Midland Funding LLC has not proven that they were retained by XXXXX as it’s representative in this matter.

3. Midland Funding LLC has not proven that XXXXX is the real party in interest. Defense demands proof of ownership specifically that the alleged account is still the legal property of XXXXX with all of the original creditor’s rights and privileges intact.

4. 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.

5. Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fail to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.

6. Midland Funding LLC has provided no sworn statement testifying to the accuracy or validity of their recollection of the alleged account.

7. Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account).

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

9. Defendant reserves the right to submit counterclaims that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account) including, but not limited to, violations of the Federal Truth in Lending Act, the Fair Debt Collection Practices Act, and the Fair Credit Reporting Act.

Defendant prays this case be dismissed with prejudice along with any further relief the court deems just and proper. Further the defendant sayeth not.

By the Defendant acting pro se.

Dated: 1/15/09

Jane J. Doe

By: _______________________________

Jane J. Doe, Defendant

Your address & phone number

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Guest Lecasbas

I usually do something similar to what brjmhome6 displayed. The one noticeable difference is that I simply put either deny or admit in my Answer.

I stressed separate pieces of paper for Answer, Affirmative Defenses, and Counterclaims to show how each of these are different and should not be mixed.

What brjmhome6 has done is to incorported the three by listing each as a separate count. In your heading you would entitle this as: Answer, Affirmative Defenses, and Counterclaims. Then you would first start by listing the Answer as Count I, then the Affirmative Defenses as Count II and the Counterclaims as Count III as a centered title about each count.

You can go to your courts online and do a search on the plaintiff. You will probably find several cases - some old, some current. I'd find the ones which were dismissed, go to the courthouse, and make copies of those cases. You can follow these formats - plus you will learn how some defendants won their cases.

You'll find many more BK's and default judgments than dismissals but you can see what the plaintiff has been up to and how it litigates.

Somwhere after your Counterclaims you would also list the statutory fines from the FDCPA, costs of the action and other relief you are seeking. Probably somewhere just before (or with) the request for dismissal with prejudice. These things would take place at the very last.

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Thanks to everybody for your valuable help and for all your suggestions. brjmhome6, your defenses seemed to fit my case well so I used them.

I have to file my answer within 3 days. I drafted the document and have some more questions below.

But first, here's the document in PDF format:

http://s87221668.onlinehome.us/ANSWER_NCO_EXAMPLE.pdf

1. Does my form and layout look right?

2. Does the certificate of service look right?

3. Are page numbers acceptable - are they even necessary?

4. Are there any changes that I should make to my answer, defenses, or service?

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