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Midland' Motion to dismiss Affirmative Defenses & Counterclaims


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Hey folks,

I have been sued by Midland, almost a month ago. After that I came across this glorious forum and have got valuable advice until now. My first post out here which has the details of the complaint is at:

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=297226

I filed my answer to the summons, at the beginning of this month, after valuable inputs from respected members, along with Affirmative Defenses, Counterclaim & Interrogatory. Those can be seen here at:

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=297398

After the inputs from some members to this post, I trimmed my Affirmative Defenses to one liners, simply stating the defense.

Now, the Plaintiff has come back and filed a Motion to Dismiss Defendant's Affirmative Defenses and Counterclaims. Apart from stating the relevant facts of the Plaintiff filing a verified complaint and the Defendant filing an answer along with affirmative defenses and counterclaim, the motion begins with stating my affirmative defenses again. After this, the motion goes further titled "Law and Analysis".

Part I titled: "Defendant's 'Affirmative Defenses' are substantially insufficient in law" states some state and case laws to begin with and then states reasons, single one for each of my affirmative defense, saying why my none of the ten purported answer even come close to constituting properly pled affirmative defenses under Illinois law.

Part II titled: "Defendant's 'Counterclaim' is substantially insufficient in law" again sites case and US laws.

In the end the Plaintiff asks the court enter an order dismissing Defendant's affirmative defenses and counterclaim and for such additional relief as the court seems just.

I have tried to keep this brief while giving the highlights. If required, I can surely post the entire motion. The court date has been set forth at Oct. 6th due to this motion, instead of earlier Oct. 5th which I had got upon filing the answer(s). Am left clueless again as to what should I be doing the next, with the court date approaching in a week.

Kindly suggest please.

Thanks a ton,

Regards.

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Out of all the pleadings I've seen, this is a tactic that pops up somewhat often. That is, they attack your answer and say that they should be granted a motion for summary judgment because of the insufficiency of your answer. They tried that with us and I fired back a declaration tearing apart each of their contentions one by one. If you don't have time to go to the law library and look up their references and cite their own references against them, you ought to seek help from an attorney. If you cannot afford an attorney right now, then go over what they've written with a fine toothed comb and fire back with contentions of your own:)

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Since you are unemployed, that means you might have more time than those who are working. Does this mean you have time to go to the law library in your town? If so, you ought to go and do two things:

1.Look up your county LOCAL rules of court on motions, timing etc. I am guessing that you just received their motion to strike your answer? You need time to respond and can do so in a Declaration. The Declaration should be filed with the court and they ought to be served, but you don't have much time. Alternatively you can prepare a statement to read orally to the judge, refuting their contentions. The justification is that you just received their motion and did not have time to serve them through the mail. They likely will send a rental attorney with no knowledge of the case, and they are hoping you'll not show to the hearing.

2.The title of the Declaration should be something like: Defendants objection to Plaintiff's motion to *** and should be signed and notarized contesting their assertions one by one. Check your state rules of court and civil procedure for info on HOW the Declaration/Objection to Plaintiff's motion should be formatted too.

Whatever the case, you have to research THEIR references and use them against the plaintiff. One reference the law firm used against us was called Witkin. I don't know if that reference is specifically for California, but I think each state has an authority on how law is commonly interpreted and can give citations etc.

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Hey Thanks Rikkivs,

It surely seems like the plaintiff was waiting for these days until now so as to give me least amount of time to get back with an answer. But I surely will go by your advice.

Also, I might have some definite questions later tonight as am discussing this with a fellow member of the forums whom have able to get in touch.

Thanks Baggins.

Regards.

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And it appears they are attacking your affirmative defences and citing case law to bully you .

They say that you are making declaratory statements,not offering a valid defense.

A tool in the lawyer toolbox,that may or may not work, depending on your response.

They are saying that your answer is insufficient as to points of law and hoping the judge is surly enough to rule against you...

You need to answer in their format and rebut each statement.

You may need to file an amended answer that reflects that as well.

Your counter claim may need to be more to the point by claiming actual money

(the cost to file) and any other releif the court deems just. Just aggro and emotional distress is'nt enough.

calawer,recovering atty,?

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You filed your interrogs on September 1st,they have a certain amount of time that they have to respond...they've chosen to make procedural end run around that issue by attacking your answer and counterclaim.

In plain language they are attempting to use your pro se status against you.

Here's what I'd do:

You preserved your right to amend your answer in your 10th defense,do it!

Show up with your amended answer, your response to their motion to dismiss,the amended counterclaim and a motion to compel discovery.

Be very calm and respectful and submit the first three items.If the Judge takes them thank him and then submit the motion to compel for 15 days out from the date you are in court.

They are attacking you on one front and have no ammo for the other-the interogs you filed.

They'll probably squall about not having enough time, then you make sure that they have to answer by the next court date(usually longer than 15 days).It's great if their lawyer huffs and puffs because of it all the better,if he or she addresses you instead of the Judge even better.Be zen,they will look like a ninny.

And the judge will remember your respectful behavior

BUT they will have to produce documents they don't have.

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Now, the Plaintiff has come back and filed a Motion to Dismiss Defendant's Affirmative Defenses and Counterclaims.

I read your posts, and your "affirmative defenses" and, unfortunately, it appears that you have chosen to follow the "internet template of useless defenses." Most of the defenses you listed generally do not apply to a suit for indebtedness and the ones that do are not actually "affirmative" defenses. If you have read your Rules of Civil Procedure, you're probably beginning to realize that.

As for your Counterclaim, well... there isn't one that I saw. Did you not post it? A Request for Production is not a Counterclaim, so you can expect those to get chucked out, too.

After Midland's motion is granted, they are going to move for summary judgment and it is going to be granted, unless you get an attorney to help you out of this mess.

Read your Rules and see what you need to do to file an amended answer. If you can do so, you might be able to work out of this.

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I read your posts, and your "affirmative defenses" and, unfortunately, it appears that you have chosen to follow the "internet template of useless defenses." Most of the defenses you listed generally do not apply to a suit for indebtedness and the ones that do are not actually "affirmative" defenses. If you have read your Rules of Civil Procedure, you're probably beginning to realize that.

As for your Counterclaim, well... there isn't one that I saw. Did you not post it? A Request for Production is not a Counterclaim, so you can expect those to get chucked out, too.

After Midland's motion is granted, they are going to move for summary judgment and it is going to be granted, unless you get an attorney to help you out of this mess.

I wanted to say this, but I just figured everyone was going to bash me for being Creditor friendly.

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Guys, Please !!! I had hoped for more and better replies to help me out.

First of all, the plaintiff has just motioned against my affirmative defenses and counterclaim. Nothing about / against my Interrogatory.

As per the Illinois' law and rules, I can surely amend my answer: defenses and counterclaim.

The thing am not able to understand is should I go ahead at the set court date with my amended answers (defenses and counterclaim), do a motion against the plaintiff' motion, a motion saying they ain't replying my interrogatories, or something else?

What exactly does or can happen during a court date for motion

Am sure there is atleast one person out there on this forum who can tell me the correct thing.

There have been a minimum of 300 views of this thread and still not a single concrete helpful reply !!!!88-)

Thanks a lot, again .... ?

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File a motion for a 30 day continuance to amend your answers. The judge, hopefully, will go for it. The other side might balk, but maybe they won't.

File a motion to deem admitted for all your interrogatories at the same time. If they don't answer, by default then they must be true.

What happens at a motion hearing? The judge rules on the motion in front of them.

Hope this helps- I'm not too familiar with IL.

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There are programs available to help people who can't afford a lawyer. Here is a list of programs in Illinois:

http://www.usattorneylegalservices.com/free-legal-aid-Illinois.html

This may not be a big deal. If you are able to meet with a lawyer, ask how you can phrase your afirmative defenses to comply with Illinois law. It may just be a matter of providing facts that support a legal defense.

Also ask whether you can request leave to amend your answer at the hearing. In many states, the Court will give you an opportunity to amend a pleading (sometimes several times) instead of dismissing it outright.

Good luck.

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Thanks for the latest replies.

After going through the Illlinois' Compiled Statutes, I am certain that I can file amended answers: affirmative defenses & counterclaims. Now since my court date is on Tuesday, if between now and then am unable to come up with proper answers, I can legally ask for continuance.

Now my question is, during the hearing of the Plaintiff' motion, do I need to have an answer /memorandum / something / anything to the motion so that the Judge would consider my plead or can I put my defense orally?

Please guys, dont disappoint me this time now. Waiting for the answers,

Thanks.

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What you want to request is "leave to amend your answer". And that is only if the Judge grants the plaintiffs' motion. Some states require you to bring a formal motion for leave to amend and attach a copy of the proposed amended pleading. I think the Judge will probably just grant your oral request and allow you to amend. It wouldn't hurt to have something in your back pocket to pull out if necessary. But don't volunteer it unless it is necessary. You will learn at the hearing what the Judge thinks is wrong with your affirmative defenses and this will help correct and problems.

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I understand it better now. I am going through the RCPs as much as possible but can't figure out the way one is supposed to / has to answer a motion to dismiss.

It says: "All objections to pleadings shall be raised by motion." but never specifies the way to answer a motion.

The courtroom where am scheduled has ready to fill in forms. These are the generic kinds: motion to leave, continuance, etc.

But then, CAlawyer, what is that should have in my back pocket !!??

And in the very unlikely case where the Judge does not rule in favor of the plaintiff about the motion to dismiss, what can I say / do at the hearing?

Along with my affirmative defenses and counterclaim I had filed Interrogatories to which the plaintiff hasn't replied. So is the plaintiff gonna play the interrogs as a 'joker' card depending on the judge's ruling?, in the sense if the ruling is in his favor, he gets time for interrogs else if the ruling is in my favor, i.e. the motion to dismiss is not considered, the plaintiff will ask for continuance to act further on the interrogs?

Thanks a lot !!!

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In your back pocket will be a proposed amended answer to the complaint.

If the judge denies plaintiff's motion, that means your answer is OK. You say "Thank you very much Your Honor" and go home to celebrate.

What you want to look for in the Illinois code is the rules regarding an opposition to a motion.

Don't worry about the interrogatories now. That is a separate issue.

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Ok. And that is what am trying to search for from a week now: 'opposition to a motion'. Specifically because the plaintiff in the motion to dismiss is saying 'substantially insufficient in law'.

You are suggesting 'proposed amended answer to the complaint'. So in that case, do I need to again have the original answer to the plaintiff' complaint, that came with the summons, that I filed while paying the appearance fees; alongwith the amended affirmative defenses and counterclaim?

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So in that case, do I need to again have the original answer to the plaintiff' complaint, that came with the summons, that I filed while paying the appearance fees; alongwith the amended affirmative defenses and counterclaim?

As I understand it, plaintiff is saying that that the affirmative defenses you included in your answer are no good.

I don't know if the plaintiff is correct or not. But at the hearing you will want to make the following arguments in the following order:

1. Plaintiff is wrong. My affirmative defenses are fine under Illinois law (if possible).

2. If the Judge disagrees with you, you ask for leave to amend your answer to remedy whatever the problem is. Ask for 20 or 30 days to do it.

3. You have a proposed amended answer in your back pocket in case the Judge says file it now or never. To prepare the amended pleading, look at what plaintiff says about the defects in your answer and try to remedy the problem plaintiff identifies.

Good luck.

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