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In MA, botched answer to complaint, remedy?


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Could not find answer to this in forum.

Received summons from Attorneys for noted JBD. Replied to summons and copied court with a letter, in language similar to a DV. Did not respond to allegations in complaint, did not state an affirmative defense. Have I totally screwed myself?

Looking through MA civil procedures, I can't find a specific remedy in terms of my ability to amend my answer correctly.

There is a scheduled case management conference in very very near future, stated purpose is to "determine trial readiness, conduct early-intervention alternative dispute resolution, deadlines for discovery, amendment of pleading, addition of parties, dispositive motions, disclosure of expert witnesses, resolve any discovery dispute and address pending motions, review any propsed case management orders submitted by any party, enter case management orers, and assign firm trial date for cases ready for trial, or firm pretrial conference date for all cases not ready for trial".

Original debt dates from 2008, original amt was approx $6K, has been run up another $2k with the attorneys. I am indigent and so have little hope of negotiating any attractive settlement, even on a low monthly payment basis.

Strategy, if any? Hide head in sand?

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Received summons from Attorneys for noted JBD. Replied to summons and copied court with a letter, in language similar to a DV. Did not respond to allegations in complaint, did not state an affirmative defense. Have I totally screwed myself?

Looking through MA civil procedures, I can't find a specific remedy in terms of my ability to amend my answer correctly.

There is a scheduled case management conference.

Strategy, if any? Hide head in sand?

MA civil procedures,

(a) When Presented.

(1) After service upon him of any pleading requiring a responsive pleading, a party shall serve such responsive pleading within 20 days unless otherwise directed by order of the court.

MA Small Claims Court

Is the defendant required to file an answer?

"The defendant may send a signed letter to the court, saying clearly and simply why the plaintiff should not prevail. This "answer" should state those specific parts of the claim that are denied. However, the defendant is not required to file an answer. The defendant must send the plaintiff a copy of the answer, if one is filed."

Prepare your formal answer. Bring your formal answer with you at case managment conference. You did fine. Appear; don't hide your head in the sand. Investigate the evidence they have - and research your defenses for additional pleading and discovery to come.

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Highly doubt that the OP is being sued in a small claims court based on the info that was provided... maybe OP could clarify?

OK I see MA small claims designed to help you settle disputes of $2000 or less without the aid of an attorney.

, Original debt dates from 2008, original amt was approx $6K, has been run up another $2k with the attorneys. I am indigent and so have little hope of negotiating any attractive settlement, even on a low monthly payment basis.

Maybe OP is judgment proof?

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Not small claims, general court, civil action.

I took a big gulp and went down to court this morning, asked a court clerk if I could amend my counterclaim to the summons, was told "sure, just file a motion", but she didn't want to walk me through the process, which I totally understand.

So, to the case management session I will be bringing a derivation of the sample answer/defense letter found here in many places.

What constitutes being bullet-proof from judgment?

I was considering filing an affidavit of indigency w the court, in anticipation of any filing costs. This JDB states in their annual report that they litigate defendants who are "able, but unwilling" to pay. I am unemployed, do not own a car, or any significant assets. In the event of an adverse judgment, I think I would have to file chapter 7, despite the onus going forward. I can't get on my feet with a lien on a checking account. I easily pass the means test.

I appreciate the attention from forum members and admins. This is extremely stressful, and the mind of course dwells on worst-case scenarios. Broke and unemployed is bad enough, but to top it off, I have a social-anxiety disorder! To prepare mentally, I am imagining myself as William Shatner (ridiculous I know, but think of having that bulletproof ego...) Going pro se is very intimidating. Right now I' m tempted to say that attorneys are worth their fee in peace of mind alone.

But that said, knowledge is power! All thanks to admins and posters. :twothumbsup:

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Judgment Proof

“Judgment-proof is the commonly used term but a more accurate term would be "execution-proof"! Although creditors and debt collectors win lawsuits, they still have to collect thus, if you are penniless you are insulated not from judgment but from execution (collection of the debt - at least temporarily).”

“You may be considered "Judgment Proof" during periods of unemployment, while drawing disability pay or disability retired pay or if you have no assets such as home, car, land, and other big-ticket items. In other words, you have no money and no income and can prove it! “

“Never ignore a lawsuit just because you are broke or have no assets! If a debt collector or creditor is trying to sue and you believe that you are judgment proof, you must respond to the lawsuit as such. Failure to appear and show the judge why you are judgment proof opens the door for the judge to grant the collector a "default judgment". Even though they cannot collect anything from you now, they can wait many years and try again. Also, the judgment show up on your credit report and costs you many points on your credit score! “

Characteristics of Being Judgment Proof

Creditors can't obtain money from people who are judgment proof because they are:

• Insolvent, having no assets to be collected

• Don't have enough property to satisfy the creditor

• Protected by laws that exclude wages and property from being used to satify a claim

Flyingifr quote:

“The Creditor’s favorite target – your wages:

"Your income is your creditors’ favorite target simply because, unlike a car or a bank account, wages can be attached time and time again until the debt is finally paid, or you leave that employer. Some states, like Pennsylvania and Texas, do not allow wage garnishments. Others, like Michigan, restrict each garnishment order to only one paycheck. After that paycheck has been garnished, the creditor has to file another garnishment order to collect again. Most states, however, allow a garnishment to remain on a paycheck until the debt is paid in full."

"Garnishment is the legal term for the court-ordered requirement that your employer withhold a part of your earnings and send that money to your Judgement-Creditor. While the exact percentage can vary from state to state, a Garnishment cannot ever leave you with less than thirty-five (35) times the Federal minimum wage. "

Edited by FL4answer58
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Guest usctrojanalum

Judgment proof is a state of being. Not having attachable assets, a job, or any property.

Judgment proof is not something you are forever though, people always forget this. Judgments are good in Mass for 20 years so just because someone is judgment proof now does not mean they will be in 15 years.

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Guest usctrojanalum

"Garnishment is the legal term for the court-ordered requirement that your employer withhold a part of your earnings and send that money to your Judgement-Creditor. While the exact percentage can vary from state to state, a Garnishment cannot ever leave you with less than thirty-five (35) times the Federal minimum wage. At this time the Federal Minimum Wage is $5.15 per hour, so your NET paycheck can not be less than $180.25 per week."

Might want to find an updated source for this info, the fed minimum wage has not been $5.15 for about 10 years.

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20 years, wow. I'll be dead by then, or wishing I was. Hopefully not. Any idea on how much they can attach in a checking account? Statute exempts $200 for rent and

From a Massachusetts Court System website for the pro se litigant (mass.gov/courts/admin/ji/rssect6.html#6e ), this still has me worried about the core issue, my botched answer:

If I get served with a complaint, what do I do?

* Read the summons and the complaint or petition. It is important to read both the summons (or citation) and the complaint (or petition) very carefully. The complaint or petition will tell you what claims are being made against you. The summons or citation will include important instructions on what steps you should take to defend yourself. Know the rules that apply to your case and follow them.

* Write and file an answer. The "answer" is your written response to the claims made against you. You must file an answer with the court that issued the summons or citation. If you fail to answer, you could lose the case without ever having the opportunity to tell your side of the story. The summons or citation will provide you with information regarding where and when to file your answer.

* Serve the other party with a copy of the answer. You have to serve the other party with a copy of your answer. Consult the rules to find out how. The clerk's or register's or recorder's office might also be able to answer questions you have. The Trial Court law libraries are a source of information as well. Refer to Appendix A.

ALERT!

Some defenses must be stated in the answer or you may lose your right to use them in court. These are called affirmative defenses.

Research the rules and law to find out if any of your defenses to the complaint are affirmative defenses that must be stated in your answer.

This is a critical step in the court process. The applicable laws and rules that apply are complex and will require your attention.

ALERT!

Failure of a defendant to file an answer might result in the entry of a default judgment. A default judgment is when the judge grants the plaintiff's request and enters judgment in favor of the plaintiff without hearing from the defendant.

Failure of a plaintiff to actively pursue a case might result in dismissal of the case. A case can be dismissed by the court for a variety of reasons, including the failure of the plaintiff to meet court deadlines, orders, or applicable rules.

A dismissal with prejudice prevents the plaintiff in a civil case from bringing a new case on the same claim. A dismissal without prejudice disposes of the particular case before the court, but a new case may be brought in the future based on the same claim.

Also, per this site (lawlib.state.ma.us/source/mass/rules/district/orders/dist1-04.html) at the Case Management Conference, the Judge may impose an "Order for Early Disclosure," as stated on the website:

2. Actions Involving Contract Claims.

(a) Plaintiff.

A party asserting a contract claim shall provide to all other parties copies of the contracts or written agreements that give rise to the claim, including warranties, notes, and guaranties; names and addresses of witnesses; an itemized list of special damages; admissions by the opposing party; and any documents that counsel agree to disclose without formal discovery.

What should I expect JDB/Attorney to provide to me? Or more accurately, what should I ask them to provide if there is a plaintiff/defendant huddle as part of the session? Is this where I press my case?

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Might want to find an updated source for this info, the fed minimum wage has not been $5.15 for about 10 years.

Thanks - quote from Fly's old post - I know $7.25 min wage.

Thank you - for call out to correct usctrojanalum.

Just FYI - you may well be judgment proof 'for ever' - if for example, your only source of income is Social Security.

Edited by FL4answer58
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Guest usctrojanalum

Just FYI - you may well be judgment proof 'for ever' - if for example, your only source of income is Social Security.

Nah cause there are still such things as inheritances, life insurance policies, winning the lotto! (lol)

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(a) Amendments. A party may amend his pleading once as a matter of course at any time before a responsive pleading is served and prior to entry of an order of dismissal or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within 20 days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders.

(B) Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.

© Relation Back of Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment (including an amendment changing a party) relates back to the original pleading.

(d) Supplemental Pleadings. Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. Permission may be granted even though the original pleading is defective in its statement of a claim for relief or defense. If the court deems it advisable that the adverse party plead to the supplemental pleading it shall so order, specifying the time therefor.

Effective July 1, 1974.

RL

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(a) Amendments. A party may amend his pleading once as a matter of course at any time before a responsive pleading is served and prior to entry of an order of dismissal or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within 20 days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders.

(B) Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.

© Relation Back of Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment (including an amendment changing a party) relates back to the original pleading.

(d) Supplemental Pleadings. Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. Permission may be granted even though the original pleading is defective in its statement of a claim for relief or defense. If the court deems it advisable that the adverse party plead to the supplemental pleading it shall so order, specifying the time therefor.

Effective July 1, 1974.

RL

Thanks RebLady!

I had read those passages and was a-scared because of the clause "Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.", but language in paras b, c d would give me hope that any amendment with specifics in answers and defenses/counterclaims would conform to the original scope of my first botched answer (which essentially said: who are you? show that this debt is valid!)

I like the image in your nick, as small as it is, can't tell, O'keefe?

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All of those things are not sources of income.

What? Try telling that to the IRS.

Your still assuming - your judgement proof if only income is SS.

Federal law protects social security and veterans' benefits from seizure by debt collectors.

Edited by FL4answer58
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Ask the court for permission to amend your answer. In the meantime, argue that what you sent them amounted to a general denial with discovery demands and you'd like to see their case, please. remember, with JDBs standing is a big thing, so you need to amend to include that.

This is excellent advice. I think so many folks (including myself for awhile) fail to understand that "by leave of court" means exactly that. Therefore, they fail to ASK...and that's what it means...ASK for permission to do whatever it is you need to do.

I had a case recently where the rules say, "by leave of court". I decided to give it a try. I didn't get all fancy with it or even make a Motion out of it. I simply called it "Request for Discovery" and in 4 or 5 paragraphs gave my reasons for making the request. I filed it with the court and sent a copy to the Plaintiff (CMRRR). The court clerk was reluctant to even take it but I read her the rule that stated "by leave of court" and explained to her that I was exercising my right to ask. She finally agreed to accept it (with hesitation...lol).

Within a few days, I received a letter from the court. The judge signed and ordered the other side to provide me with the documents I had requested in my Request.

Give it a try. Don't get all legal or anything. Just state simply your reasons for making the request and see what happens. All the judge can do is refuse and if he/she does...you're no worse off than you are now...

RL

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