HELP WITH AMENDING ANSWER TO COMPLAINT!

[rockyfrank]

Hi!

First off I have to say thank you to whoever created this community and to all of the people who post on here with your valuable input.

I need help with amending my answer to plaintiff's complaint in California.

I already answered and filed the PLD-C-010 form, but I didn't add my affirmative defenses, so I've been doing so much research on this topic, and I've been going to the law library and I can't find anything on amending my answer! I even visited some legal help centers and no one can help out with this and my last resort is hiring an attorney which I really can't afford to do so right now. I can do all the work but I just need some guidance.

SO, here is what I know so far:

I read that a MOTION FOR LEAVE TO AMEND ANSWER is what I have to file. However, I'm not really sure about what I have to type up or how to do it (I've seen some examples; some have long crazy paragraphs in "legalese", others have a short, straight-to-the-point paragraph).

I went to the library and looked up motions, talked to some people about it and here is a format I found that I was told I could use:

SUPERIOR COURT OF CALIFORNIA

COUNTY OF _________________

Plaintiff

vs.

Defendant

CASE NO_______________

STIPULATION

(To Amend Answer)

IT IS HEREBY STIPULATED by and between the plaintiff and defendant, through their respective counsel, that defendant may, concurrently with the filing of this stipulation, file an Amended Answer to Complaint herein on or before _______________[date].

Dated:__________________.

_____________________[firm name, if any]

By:___________________

"Use of Form

The form of stipulation in above is for use by the parties to permit the defendant to file an amended answer [see Code Civ. Proc. 473]. For an alternative form of stipulation with the proposed amended pleading attached, discussion, and cross references relationg to stipulations, see 21.70." (Last sentence is referring to another page of motion book)

But it seems that something else needs to be filed in conjunction with this based on the Use of Form paragraph.

I called up an attorney and he didn't really seem to want to help me but he told me that FIRST, I need to write a letter to the Plaintiff's attorney basically asking them for permission to amend my answers with the affirmative defenses I am going to use. If they say yes, then I have to do some other thing (I don't remember what he said about this part), but if they said no, THEN I file a Motion with Leave.

So where do I go from here?

I am going to continue my search so if I find anything new, I will post it here.

[InProPer]

Thanks a lot for posting this. I'm having trouble finding it too.

[InProPer]

I would call the court clerk and ask her if you can get on schedule for a motion to leave for amend Answer and see what they say. If they schedule the hearing, you should be good to go just make sure to include a notice of motion to be served on the plaintiff and let the judge decide if you can amend or not. Here is another sample I found:

IN THE CIRCUIT COURT OF THE 6TH JUDICIAL CIRCUIT, IN AND FOR PINELLAS COUNTY, FLORIDA

BIG BAD BANK

Plaintiff,

vs. CASE NO:

12345678

JOHN DOE, ET AL,

Defendant.

MOTION FOR LEAVE TO FILE AMENDED ANSWER AND COUNTERCLAIMS

Defendant, JOHN DOE, respectfully requests leave to file the attached Amended Answer and

Counterclaims pursuant to Fla. R. Civ. P. 1.190(a) and (e). The defendant states that as a pro-se

litigant, it has taken him additional time to become familiar with his legal defenses, and is only

now aware of his legal defenses and counterclaims, and now wishes to assert the same.

Leave to amend should be liberally granted; it should not be denied unless the privilege has been

abused, there is prejudice to the opposing party, or amendment would be futile. Torrey v. Leesburg

Reg’l Med. Ctr., 769 So.2d 1040 (2000), quoting North Am. Specialty Ins. Co. v. Bergeron Land Dev.,

Inc., 745 So. 2d 359, 362 (Fla. 4th DCA 1999)

(“Florida Rule of Civil Procedure 1.190(a) provides that leave to amend shall be liberally

granted… As a general rule, ‘leave to amend should not be denied unless the privilege has been

abused, there is prejudice to the opposing party, or amendment would be futile.’”)

Here, the Defendant respectfully submits he has not abused this privilege, becoming aware of his defenses and counterclaims only upon new legal research, the plaintiff

would not be unduly prejudiced by the amendment, and the amendment would provide

defendant substantive defenses, and therefore not be futile. Additionally, as stated in his

attached affidavit, defendant states that he used his entire life saving as a down payment

to purchase the property subject to this action, and losing it without an opportunity to

fully defend his position would be devastating. Although the Amended Answer is late

coming, Defendant respectfully submits permitting the Amended Answer would help

facilitate justice, and ensure a family’s life savings does not evaporate without defense.

WHEREFORE, Defendant respectfully request leave from this Court to file his

Amended Answer and Counterclaims.

[InProPer]

Another good one:

Filing a Motion to Amend

An Answer to a Petition doesn't have to be perfect, but it must be timely. What do you do if you made some mistakes in what you filed? This article tells you how and why to amend your petition and provides a (simple) sample motion.

As I've said before, your Answer to a Petition doesn't have to be perfect, but it must be on time, so it's important to get it done even if you aren't sure you'll get it 100% right. You don't want to make either admissions or incorrect factual assertions in your initial answer, as these could complicate matters down the road, but if you remember something differently or think of a new defense or counterclaim, you should strongly consider amending your petition.

Courts Are "Liberal" in Permitting Amendment

Because the courts have a strong policy of hearing cases “on the merits” (based on the actual facts and law rather than “technicalities” or oversights), courts are required to be very liberal in allowing amendments. Practically speaking, they will always allow you to amend a petition within a month or two of filing an answer, and they will usually do so for a long way into the case. If you come up with something new, you should definitely try it.

So how do you do it?

First of all, you write your amended answer (or petition if you are the plaintiff). Remember that usually the amended answer does not simply add to the original answer. It completely replaces it. That means that you must not forget to deny the paragraphs you had already denied, and you must re-plead everything you still want in the case. So much of the amended answer will be exactly the same as the original answer. The title of your new answer will be “Amended Answer.” Change whatever needs to be changed, add or subtract whatever needs to be added or subtracted.

Second, you write a “Motion to Amend Answer.” In this motion, you formally request “leave” (permission) to file the amended Answer and tell the court why you want to do it. You might also, very briefly remind the court of the policy to permit amendments very liberally. You do that by looking up a case that states that policy and citing it, quoting the relevant statement by the other court. You attach your Amended Answer to this motion, and (in most courts) you need to schedule an oral argument in which you ask the court for leave to amend. This argument is normally not a big deal.

Sample Motion

Court

Debt Collector, )

Plaintiff )

vs. )

Joe Consumer, )

Defendant )

Motion for Leave to Amend Answer

Comes now defendant Joe consumer and for his motion to amend states as follows.

1.Plaintiff Debt Collector filed its petition against defendant on March 1, 2011, and it was served upon Joe Consumer on March 16, 2011. The date for first appearance in court was set for March 29, 2011.

2.Defendant filed his answer and appeared in court in timely fashion.

3.Defendant is representing himself pro se in this matter and had little time to research the law or his Answer before needing to file his Answer.

4.Defendant has since learned that he has remedies for the wrongs alleged against Debt Collector in his proposed Amended Answer.

5.This matter has not been set for trial, and plaintiff would not be prejudiced by permitting amendment to defendant's Answer.

6.Justice requires that defendant be permitted to amend his petition to allege his claims under the Fair Debt Collection Practices Act and State X's common law. See, Joe Schmoe vs. Heartless Debt Collector, 123 State Law Digest 321, 323 (Your state, 2002)(where a defendant seeks amendment within a reasonable time, the interests of justice require the court to permit that amendment).

7.Defendant does not seek this amendment for improper motives and is not unduly seeking to delay trial in this matter.

Wherefore, Defendant requests that this court permit the filing of the attached proposed Amended Answer.

Respectfully,

Joe Consumer