Formal Answer to Summons...please critique

[themelodywithin]

XXXXXXX XXXXXX

Address

Case Number XXXXXXXX

Capital One Bank (USA) N.A., Plaintiff

Vs.

XXXXX XXXXXXXX

ANSWER

Defendant, for its reply to the Complaint of Capital One Bank (USA), N.A. (hereafter Capital One), states as follows: all answers correspond to the numbered paragraphs of the complaint. All allegations of the Complaint are denied unless expressly admitted herein.

ANSWERS

1. In response to paragraph I., the defendant admits.

2. In response to paragraph II., the defendant lacks information sufficient enough to admit or deny the allegations, therefore they are denied.

DEFENSES

3. As for a first Defense

Jerold Kaplan Law Office has not proven that it has been retained by Capital One as its representative in this matter.

4. As for a second Defense

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

5. As for a third Defense

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

6. As for a fourth Defense

Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

I am asking the court to deny plaintiff's claim. I am also asking for reimbursement of my court costs.

I state under penalty of perjury that the foregoing is true and correct.

April 7, 2009

_____________________________

XXXXX XXXXXXXX

I CERTIFY that l have mailed / will mail a copy of this ANSWER on this same day to:

XXXXXXX Law Office, PC

[nascar]

The complaint contained only two paragraphs?

[themelodywithin]

It only had 2 numbered paragraphs. The third paragraph just said that the contract provides for reasonable attorney fees (it doesn't have a number or numeral associated with it) and the 4th just says Wherefore, plaintiff demands judgment against defendant if upon default.

[debtorshusband]

3. As for a first Defense Jerold Kaplan Law Office has not proven that it has been retained by Capital One as its representative in this matter.

Personally, I wouldn't do this. It's one thing to want proof that a JDB did indeed buy a debt from an OC. But a lawyer who files a lawsuit when they don't represent the alleged plaintiff would be in such big trouble (disbarment) that it just isn't done. Attorneys are supposed to comply with certain professional ethics, and this basically attacks the attorney's ethics to such a degree that a judge is likely to be very unsympathetic, and will throw it out automatically. And probably administer a stern lecture to you about frivolous filings.

As always, YMMV.

DH

PS "Plaintiff has failed to mitigate its damages, if any it had," is a good, basic Affirmative Defense to throw in.

[nascar]

How much money are we talking about and how old is this thing?

[admin]

Personally, I wouldn't do this. It's one thing to want proof that a JDB did indeed buy a debt from an OC. But a lawyer who files a lawsuit when they don't represent the alleged plaintiff would be in such big trouble (disbarment) that it just isn't done. Attorneys are supposed to comply with certain professional ethics, and this basically attacks the attorney's ethics to such a degree that a judge is likely to be very unsympathetic, and will throw it out automatically. And probably administer a stern lecture to you about frivolous filings.

Actually this is happening all over the place: an attorney is representing a third party collector and lists the OC as Plaintiff.

http://caipnj.blogspot.com/2008/11/pressler-pressler-admit-3rd-party.html