I would like someone to answer my questions or take a look at what I posted

[rikkivs]

March twenty fourth two thousand and nine

Hello there:

I would like someone to answer my questions or take a look at what I posted! Now about you...I have looked over what you have written and have a couple of questions and coments. What are the causes of action and their allegations against you? From what I gather, a demurrer is something that requires the courts to take everything in the face of the complaint as truth but is used when the complaint itself is defective. Usually, failure to state a claim upon which relief can be granted is the one I have seen in many of these creditor cases. Like referencing a written agreement but failing to attach it OR language specifically from the agreement. If the complaint is vague then this is another reason to demur. However, most of the time the judge will simply grant the plaintiff some time to amend the complaint and then you are left off where you started because they will keep coming after you until the case is dismissed with prejudice.

Although the JDB had a signed affidavit, and you think it is hearsay, pls review your state rules of civil procedure to further elucidate that. The reason is that there are exceptions for business records. I don't fully understand all of these intricacies so cannot advise on attacking the affidavit.

You should review the recent case stickies showing how a JDB WAS able to win so you can see what strategies they might use.

Now a few comments:

1.Is the original signed contract needed by the JDB to get their judgment? This depends on their cause of action. If they are suing for breach of contract, the original signed contract OR a certified copy of it, along with a reason why the original was not given is legally sufficient I think, from what I have read. If they have referenced breach of contract but have not included language from the contract OR a copy of the contract,then they are failing to provide evidence for you to adequately defend yourself and thus failing to state a claim upon which relief can be granted.

2.I don't know if you should bring up that the JDB is guilty of fraud UNLESS you can conclusively prove it. AND the fraud MUST be relevant to your case. If you can prove your allegations you might be able to file a counterclaim and at the least get the thing dismissed with prejudice. But this can be sticky and I would not know where to begin!You would need rock solid evidence to show the courts and if you have it, great!

3. This is where things get VERY sticky. If they have sued you for other causes of action, like account stated then they DON'T need to provide you with a copy of the contract because partial performance on an account stated can win their case if they sue under certain principles I have read that assumpsit, quantum meruit, quantum valebat and account stated are the four legs of common counts cause of action. It looks to me like if they provided all the billing statements, then at the very least they could get you on an account stated. But is that what they are suing you for?

4.Regarding their objections to your inquiries, did the judge sustain them? Do you have time to argue your case and show the judge why your questions are relevant and not burdensome?

See ASSET ACCEPTANCE CORPORATION v.PROCTOR, for an example of a guy who got sued, admitted the debt was his BUT was able to convince the courts that he needed COMPLETE itemization of the account from the beginning to adequately defend himself. The appeals court agreed with him.

The Mass rules of civil procedure can be found on this site: w w w (dot) lawlib (dot) state (dot) ma (dot) us/civrules(dot) html (I am a new poster so cannot post links yet.) They look easy to understand and are well laid out. In particular check out Section III. Pleadings and Motions and look at Rule 12.

5. To answer your question about the chain of custody, see Mass RCP section V. numbers 26-37. This should be part of the discovery process. In other words, you need to ask the plaintiff for this information in writing so that you won't be surprised come trial time. If they fail to comply with your discovery requests, you can motion to compel and even try to get sanctions.

6.Have you talked to anyone at your local county courthouse, like the clerks? They cannot give legal advice but they CAN tell you if you are doing things procedurally correct manner. From what I gather half of this game is about following the right protocols and procedures.

7.I wish I could help you more. I wish you the best of luck with your case. The best advice I can offer is to look at the relevant parts of the Mass RCP and I believe that will help.