Need opinions please re. answer to complaint

[dlm1968]

1. Who is suing you? Zwicker and associates on behalf of Discover card

2. For how much? $10,000

3. Who is the original creditor? Discover card

4. How do you know you are being sued? Summons

5. How were you served? Were you served? Personal contact. Was served.

6. What was your correspondence (if any) with the people suing you before you think you were being sued? One letter to which I did not respond.

7. Where do you live? Florida

8. When is the last time you paid on this account? 01/10

9. What is the status of your case (if anything has been opened)? You can find this by a) calling the court or looking it up online (many states have this information posted daily). No response yet.

10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No

11. Did you request debt validation before the suit was filed? If not, don't bother doing this now. No

12. Does your summons require a response in writing? YES.

(Look hard!) If you don't get a questionnaire with your summons, you are still probably required to answer it in writing. If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? NO.

13. What evidence did they send with the summons? An affadavit? A statement from the OC? Anything else they attached as exhibits? Only thing is "Exhibit A" which is a standard credit card user agreement without my name on it and certainly not my signature.

14. What is the SOL on the debt? To find out: 4 Yr

Complaints:

1. That this is an action for damages that does not exceed $15,000, exclusive of interest and court costs.

2. That this action is based upon a credit agreement entered into by the defendant with the plaintiff.

3. The last 4 digits of the current account number are XXXX.

4. That the defendant used or authorized the use of said account to incur charges, and by such use assumed the obligations of the credit agreement. (The governing credit agreement is attached and incorporated as exhibit A).

5. That the defendant subsequently defaulted on the credit agreement and the Plaintiff Accelerated the balance due on the account per the credit agreement.

6. That the defendant owes the plantiff XX,XXX plus interest.

7. That the plaintiff has performed all conditions precedent to bringing this action, or the same have been waived by the defendant.

[dlm1968]

First let me say the forum is invaluable and I have garndered more information than I could have hoped for and I appreciate any opinions anyone has to offer and give you my thanks.

My answer to all the above complaints is going to be:

1) Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein.

2) Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein

3) Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein.

4) Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein.

5) Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein.

6) Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and on that basis generally and specifically denies the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

7) Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein.

[dlm1968]

Where I get confused is in affirmative defenses. I am unsure what I should use and what applies to my case. If these are incorrect or there are others I should be including please offer your opinion. Thank you.

I was planning on using:

1. The plaintiff has not proven the debt is valid or the amount of the debt is accurate. The plaintiff must prove that the principal, interest, collection costs, and attorneys fees are all correct, agreed to in alleged contract, and lawfully charged. Defendant also insists that the plaintiff provide the contract, account statements and purchase receipts to prove the amount of the debt.

2. Zwicker & Associates, P.C. has not proven that they were retained by Discover as it’s representative in this matter.

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

4. Plaintiff has provided no sworn statement testifying to the accuracy or validity of their recollection of the alleged account.

5. Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time.

Edited December 4, 2010 by dlm1968

[BV80]

Read your court rules for civil procedure about answering a Complaint. Some courts don't like the "without knowledge" answer. Some don't mind it, though.

Look at your cardmember agreement. Go to "Claims and Disputes", then "Claims Notices". In that section, it should state:

"In the event that you or we have a claim that arises from or relates to your Account...yada yada yada...before initiating, joining, or participating in any judicial or arbitration proceeding...the complaining party shall give the other party: (1) a written notice of the claim at least 15 days before initiating any Proceeding, explaining in reasonable detail the nature of the claim and any supporting facts."

Did Discover or Zwicker give you at least 15 days notice that they were filing suit?

[dlm1968]

No, I received no such notice from them.

I will check the procedures for answering the complaint. Thank you.

[BV80]

No, I received no such notice from them.

If you have all your correspondence from Zwicker and Discover, read them to make sure.

Point out the section in your affirmative defenses. State the quote from the cardmember agreement word by word.

[dlm1968]

Florida is fine with the "without knowledge" statement.