Attaching only part of a contract to a lawsuit

[Determined1]

Hi,

I understand that if a Plaintiff fails to attach the contract it is relying upon in their cause of action, the case can be dismissed. What if they only attach part of the contract, ie. they leave a critical Addendum off, only attaching the 1st portion of the contract?

Could this be a basis for dismissal, too? Thanks.

[BTO429]

I would argue that because it is not the complete contract how can you and the court be sure that it is the original contract that you signed and not a facsimile, or just some thing they typed up on their own.

[Guest usctrojanalum]

Hi,

I understand that if a Plaintiff fails to attach the contract it is relying upon in their cause of action, the case can be dismissed.

Where is this true? I am not saying you are wrong or anything like that I'm genuinely curious I always thought this was the purpose of discovery.

[nascar]

Where is this true? I am not saying you are wrong or anything like that I'm genuinely curious I always thought this was the purpose of discovery.

There are a couple of rogue courts in Florida where judges are actually asking debt buyers/creditors to prove the debt is legitimate before they'll grant judgment. Imagine that.

[Guest usctrojanalum]

There are a couple of rogue courts in Florida where judges are actually asking debt buyers/creditors to prove the debt is legitimate before they'll grant judgment. Imagine that.

Oh I understand that but up where I live a summons and complaint is simply a notice that you are being sued in court, the plaintiff does not need to provide evidence with the summons.

When the plaintiff goes to submit judgment then yes, affidavits, statements, bills, contracts etc have to be submitted as proof. Sometimes when that is insufficient, and the court will order an inquest before judgment.

[Determined1]

USC, I'm beginning to believe you work for a collections law firm. If parties can sue without attaching proof up front, it puts unscrupulous individuals in the position of filing frivilous suits, and Defendants in the position of having to pay for an attorney or spend an exhaustive amount of time researching and defending an action that may have no merit.

The party suing either has a contract that proves the debt, or they dont.

I found this in the FL rules of civil procedure researching last night....and found some case law to support it. Comments?

Per Florida Rules of Civil Procedure 1.130 - Attaching Copy of Cause of Action and Exhibits:

(a) Instruments Attached. All bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading. No papers shall be unnecessarily annexed as exhibits. The pleadings shall contain no unnecessary recitals of deeds, documents, contracts, or other instruments.

And this legal reference with the following statement: "To be enforceable, an Agreement must be sufficiently specific, and reflect assent by parties to all essential terms." Suggs v. Defranco’s, Inc., 626 So. 2d 1100 (FLA 1st DCA 1993)

[Guest usctrojanalum]

If parties can sue without attaching proof up front, it puts unscrupulous individuals in the position of filing frivilous suits, and Defendants in the position of having to pay for an attorney or spend an exhaustive amount of time researching and defending an action that may have no merit.

The party suing either has a contract that proves the debt, or they dont.

Again, this is called discovery. Every Summons I have ever been served has been two pieces of paper. The front page was the actually summons to appear in the action and the second page was the complaint of what the plaintiff alleges.

[Determined1]

Sounds like you could have had the cases dismissed....

[FlaLawyer]

Sounds like you could have had the cases dismissed....

Some judges won't dismiss, but allow the case to go to discovery. They will dismiss when, after discovery is sent and a few motions to compel have been argued, the other side has not produced the contract.

It all depends on the judge.

On partial contracts, I have argued that I need to complete contract to determine what rights I have under the contract. Not to mention, the partial contract they have provided lacks the required terms to establish a contract.

[Guest BrokeBob]

USC, I'm beginning to believe you work for a collections law firm. If parties can sue without attaching proof up front, it puts unscrupulous individuals in the position of filing frivilous suits, and Defendants in the position of having to pay for an attorney or spend an exhaustive amount of time researching and defending an action that may have no merit.

The party suing either has a contract that proves the debt, or they dont.

I found this in the FL rules of civil procedure researching last night....and found some case law to support it. Comments?

Per Florida Rules of Civil Procedure 1.130 - Attaching Copy of Cause of Action and Exhibits:

(a) Instruments Attached. All bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading. No papers shall be unnecessarily annexed as exhibits. The pleadings shall contain no unnecessary recitals of deeds, documents, contracts, or other instruments.

And this legal reference with the following statement: "To be enforceable, an Agreement must be sufficiently specific, and reflect assent by parties to all essential terms." Suggs v. Defranco’s, Inc., 626 So. 2d 1100 (FLA 1st DCA 1993)

Uh, he's in New York. I've lived there. I have a brother who practices there. The laws are different there. That is why states like Fla, Tex., Cali. and Wisc. are considered to be a bit better for the alleged debtor.

[BTO429]

But the suit is initiated on the contract its self if they can not produce the complete document I would file a Motion to dismiss.

The Plaintiff has not provided enough proof and what proof they do have is not complete there fore there is no way to determine the extent of the contract and the case holds no merit.

[KentWA]

In some states, if a cause of action is based on a contract it must be attached. You have to look at the rules of civil procedure. If it is required and they did not, dismissal is appropriate. Sadly this is not a requirement in many states.

[jq26]

In some states, if a cause of action is based on a contract it must be attached. You have to look at the rules of civil procedure. If it is required and they did not, dismissal is appropriate. Sadly this is not a requirement in many states.

I concur. In my state, you must attach the contract if your action is based in contract. Check civ pro rules. They are usually spelled out for you.

But here is the thing. If you are moving for dismissal based on failure to comply with civ procedure, then you have the burden of persuasion that the contract isn't complete. If the pages are #'ed and you are missing a few, then it is obvious. But if it isn't, then how do you propose you show a missing addendum?

[Bradly1]

In my state you are only required to attach documents in small claims court summons. The other courts are a Summons and a Complaint. If you don't answer then they just file with the clerks a default judgement. Poof, no proof nessesary! If you file an answer then thats when the Proof comes out. Through discovery and if they MSJ you. So yea some states that all ya need.

Just look up the court rules and proceedures. If they are missing important info then MOD them. Chances are they will block it by amending most judges will allow it so w/e a waste of time but fun to see them scramble. Even if you do get it dismissed they will just re-submitt but costs them extra hehe.

Edited March 24, 2010 by Bradly1

[whatnot]

Again, this is called discovery. Every Summons I have ever been served has been two pieces of paper. The front page was the actually summons to appear in the action and the second page was the complaint of what the plaintiff alleges.

I'm in AZ and it's the same way. They don't seem to need anything to take you to court here. That's all I got was 2 pages summons and complaint.

[jq26]

Pennsylvania: "It is well settled Pennsylvania law that a complaint shall state the material facts on which a cause of action is based and where any claim is based upon an agreement, the complaint, shall state whether it was an oral or written agreement. Pa. R. Civ. P 1019 (a), (h). A party must attach a copy of the writing to the complaint, or state the reason for not attaching a copy of the writing and set forth the substance of the written agreement in their complaint. Pa. R. Civ. P. 1019 (i). In a claim seeking damages for breach of a credit card contract, this includes attaching the underlying contract between the issuer of the card and the card holder, as well as setting forth in the complaint the specific averments of time, place and damages which have risen as a result of non-payment in any credit card contract. Marine Bank v. Orlando, 1982 WL 425 (Pa.Com.PI. 1982)." - Cach v. Myers, NO. 2007 GN 5427.

Every state is different. In PA, we have very specific civ pro requirements. I'd check within your civ pro requirements and see what it requires for filing a complaint based on breach of contract.

[Determined1]

Excelllent feedback, thank you to all. In my case, the way I know its only a partial contract is the part they attached references two addendums. They then failed to attached the addendums... I'm using their own references to point out its only part of an agreement, there for not a complete agreement and FL rules of civil procedure state all material portions of a contract need to be attached.

[shrinkingviolet333]

I'm having the same problem here in Florida too.

I have a MSJ hearing coming up in a few weeks, and I did send in a good Request for Doc's to the plaintiffs' atty. They have about a lil less than 2 wks left to produce the Requests, but should I just go ahead and Motion for Dismissal, on account of the FACT that they didn't have much of anything attached to the summons? They only had a 'ledger card' which was a small chart of sorts attached to the summons anyone could have devised.

If FL civil rule of procedure 1.130 is there for a purpose, and not just fluff....then why can't defendants use it? Is it a 'toothless rule'?

Let's say if I did 'Motion for dismissal' due to the 1.130, would the Judge more likely just say....OKAY planitiff...I'm giving you a chance to fix this,... find the signed contract, and I will postpone the MSJ to give you time to build your case ..??? Is that legal?

If someone is suing a person...don't you think they dang well need to be prepared and follow the Rules? (the 1.130 was violated, right?)

So okay, I have a MSJ hearing coming up in about 2.5wks. I am learning thru trial and mostly error, I really need to know if you would Motion for Dismissal if you were me, while waiting for the Plaintiffs atty to produce documents?

Thank you so much for any info you can share.

[Determined1]

I'm having the same problem here in Florida too.

If FL civil rule of procedure 1.130 is there for a purpose, and not just fluff....then why can't defendants use it? Is it a 'toothless rule'?

Let's say if I did 'Motion for dismissal' due to the 1.130, would the Judge more likely just say....OKAY planitiff...I'm giving you a chance to fix this,... find the signed contract, and I will postpone the MSJ to give you time to build your case ..??? Is that legal?

If someone is suing a person...don't you think they dang well need to be prepared and follow the Rules? (the 1.130 was violated, right?)

I dont think its a toothless rule. I've read of one case on this board where a Judge ignored a Defendants demand for proof of a contract, but have read many successful appeals online where this was properly enforced. I'm a little unsure who is giving the Plaintiff in your case another 2+ weeks to produce a contract. Did the Plaintiff's attorney tell you they would comply before the hearing? I'd take that with a grain of salt. Who do they represent, a collection agency, the original creditor, etc.?

I wouldnt take the Plaintiff's attorney's word for anything in these cases, and prefer Motioning the court for these records - especially if you are facing a Motion for Summary Judgement hearing. If you have not gone on record with the court requesting proof of a valid contract yet, I think you need to do it now.

My case hasnt gotten that far along yet, but I am filing a Motion to Dismiss for failure to attach a complete agreement, and for multiple other reasons. I found the following Florida lawsuit that cites this rule, where a person lost a debt collection lawsuit and never even showed up to defend, but before a final Judgement could be entered, the Judge properly applied that law and reversed the verdict in favor of the Defendant. The primary reasons were a fialure to provide any proof of a contract, or the debt itself. Read this brief case, I think it answers alot of questions....

http://www.consumerlaw.org/unreporte...t/Moehrlin.pdf

[shrinkingviolet333]

Great reply,

Thanks!!!

Here I cut n pasted your ??'s

'I'm a little unsure who is giving the Plaintiff in your case another 2+ weeks to produce a contract. Did the Plaintiff's attorney tell you they would comply before the hearing?'

When I filed the Request for Prod.of Documents, I put in there that they had

30 days to get the doc's to me. So because I am new and 'dense' I should have done it back a few weeks sooner, but was scared of it, but I finally got my request in. So when the 30 days is up, I'll have probably only a week before the Hearing for Motion for Summary Judgement. How stupid is that?

Here in Florida, I think that you have to give 'em 30 days to be fair, with requests for prod.of docs... However, if not, well that is yet another lesson I have learned. (Now in the Request, I did say I needed the original contract...)

You asked 'Who do they represent, a collection agency, the original creditor, etc.?' Well, they say they are representing the Original Creditor. That is very suspisious because why would they not have more attached to the summons than a measly Ledger Card/chart...? Not a statement/no signatures/no cc agreement/ no contract...nothing.. Therebye I think I can safely say they are probably liars? or why would they not have more than that? But if they are o.c. then maybe the request will prove more...but I still hope to MOtion on that rule 1.130.

So the Fla civil procedure rule 1.130 looks great to me. Also if I find out that they are misleading me and that they really are NOT the Orig.Creditor, I am going to check them with the:

FDCPA § 812.Furnishing Certain Deceptive Forms [15 USC 1692j] It states:

(a) It is unlawful to design, compile, and furnish any form knowing that such form would be used to create the false belief in a consumer that a person other than the creditor of such consumer is participating in the collection of or in an attempt to collect a debt such consumer allegedly owes such creditor, when in fact such person is not so participating.

( Any person who violates this section shall be liable to the same extent and in the same manner as a debt collector is liable under section 1692k of this title for failure to comply with a provision of this subchapter.

So within this waiting period that I self-inflicted...I was wondering if I should or could legally still go ahead and to a Motion to Dismiss due to the lack of attachment of the original contract to the summons I received.

I am glad to hear you are going to do something quickly. I am new, like I mentioned before, and I wasn't sure if civil procedure makes me wait to see what the plaintiffs atty will produce before I can Motion anything. I have trouble understanding the laws and such...sometimes.

Thanks again for your reply...! BTW, I was excited to read your link, but I couldn't get it to work..if you can send it to me via private message again perhaps if you have time maybe you can do that. I bet it is awesome information.

[Determined1]

Hi,

I thought I'd post this link for all, hoping the link works this time.

http://www.consumerlaw.org/unreported/content/Moehrlin.pdf

I'm still a little unclear on your timeline and the motions you previously filed. If they have to reply to your last motion prior the Motion for Summary Judgement hearing, and fail to, then it can be used against them. Check out the link again (hoping it works this time) and let us know what you think.

I had an issue a few years ago where a collections attorney filed and won a lawsuit against my business for an account I was not even a party to. He was largely able to do it by deceiving the court, and by not serving me motions for hearings that I would have appeared at and easily defended. I was able to get it vacated. If you have a legitimate gripe, fight back, and most of all - let the attorney on the other side know you plan to fight them tooth and nail, and counterclaim if necessary.

[shrinkingviolet333]

OK, I got this to open, and oh my goodness! It is perfect! I wonder if I can use this case in my FL circuit court because it is a different area of FL.

The judge was very fair and paid good attention to Civil procedure!

Great post!

[Determined1]

Glad that link helped

I'm not 100% certain on the rules of citing legal precedent, so I started a new thread on the topic. Even if you can't cite that particular case, you can use much of the Judge's opinion and the case law he cited, as they may apply to your situation.