JDB doesn't list cause of action in complaint?

[2fightback]

Hi:

We were served with a summons/complaint from a JDB. The original complaint did not really list a cause of action, at least not as far as we can tell. It just states "that said account was assigned to plaintiff for collection from (their sister company), as final assignee for (OC) for credit card charges......(the sister company) as assignor, for valuable consideration, acquired all rights, title, and interest in and to the claim set forth herein originally owed by defendant to (OC). As a result of the assignment, assignor became, and is now, the owner of said account." They then claim an ungodly amount of interest at the rate of 23.99 percent that is tacked on to the OC's last known balance.

We have a pre-trial conference coming up. As of now, they sent what they deem as "account verification" which was the usual OC statements from a few years back. They just sent their disclosure statement which has an affidavit from OC to their sister company titled "bill of sale and assignment of assets" which is a blanket assignment that has no specifics to the account they are supposedly suing for. The affidavit refers to an exhibit A, which of course is not attached. I assume the missing exhibit contains all of the details of the account and lists the very low amount of money they paid for the assignment (or probably a lump sum they paid for several accounts on that particular day). Then they attach an assignment from their sister company to them that is titled "affidavit of indebtedness and acknowledgment of assignment" in which they claim "the amount hereby assigned is a valid debt now fully due and owing and no payments have been made thereon to reduce the balance as claimed herein and there is no just counterclaim or offset against such account and claim". They then list the guy from their sister company who signed the second affidavit as one of their witnesses, and then another person from their company who will testify as to the account being assigned for collection, goods and services provided, status of account, and business notes/records. They of course then list that they will provide 13 pages of the OC's statements.

With the given information above, did they ever actually state a cause of action? We're wondering if we are missing a crucial step that could be taken in our favor. We have to supply them with our Disclosure Statement in the next few days, which we gather from these forums should list the OC's person who signed the first affidavit, and then the person who signed the second affidavit, as witnesses we plan to call to testify. But then we're confused, as we also read that you should file a motion to object to the affidavits as hearsay. So which do you do then?

I assume that at the pre-trial the Judge will order a set number of interrogatories/answers to swap with one another which we could then use in a very favorable manner. Do we just keep plugging along until we trip them up on request for documents or something? We obviously want to make them prove that they even have the right to sue on the OC's account.

Thanks in advance for any advice!

[admin]

No - it doesn't seem to me like they have listed a cause of action. You can list this as an affirmative defense when you file your answer.

[2fightback]

Yes, we did list that as an affirmative defense in our answer. We're now at the pre-trial conference stage and disclosure statements are in the works. We're just wondering if we should ask to dismiss, or for a bill of particulars, or what? The pre-trial is tomorrow, so we want to know what we can and can't ask for at this stage.

Thanks again for any help!