Jump to content

hoping for dismissal??


Recommended Posts

Sorry to double post, but I feel this forum is more appropriate. (original thread in collections: forgery dismissal)

Going to court tomorrow in IN and don't know what to expect. Filed an answer to the complaint along with a MTD, next thing I know, court date is scheduled.

ANY advice would be appreciated!

Here was my answer...

ANSWER TO COMPLAINT

Defendant, appearing pro se, for its reply to the Complaint naming XXXX Plaintiff as follows: All allegations of the Complaint are denied.

1. Defendant denies the allegations contained in paragraph 1. Plaintiff has failed to provide Defendant with a contract or account number for alleged debt. Furthermore, there is not, nor has there ever been any agreement, written, oral or implied between the Plaintiff and Defendant.

2. Defendant denies the allegations in paragraph 2 as this calls for an admission of the matter defendant has denied and thus it is improper.

AFFIRMATIVE DEFENSES

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

2. Statue of Frauds – No contract provided. Violation of Indiana trial rule 9.2. Defendant demands strict proof of said “contract”.

3. Failure of Consideration - There has never been any exchange of money or item of value between the Plaintiff and the Defendant. The Plaintiff has failed to provide evidence they are an Assignee for the alleged "contract" and "account" of defendant. Defendant demands strict proof thereof.

4. 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 the defendant’s contract, and lawfully charged. Defendant also insists that the plaintiff come up with purchase receipts to prove the amount of the debt.

5. Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

WHEREFORE, defendant requests the court for summary dismissal with prejudice.

“I (we) affirm, under the penalties for perjury, that the foregoing representation(s) is (are) true.

Link to comment
Share on other sites

If this is the case concerning your aunt, this is what I would do. If your late uncle is the one who opened the account in his name only, check your state laws concerning community property. If Indiana is not a community property state, perhaps she is not liable for his debts.

I don't know this for sure, because it may also have something to do with estate law. If it were me, I'd be on the phone right now calling every attorney in the book to see if someone would talk to me for just a few minutes, and I'd ask them if my aunt is liable for the debt, and if I can speak for her in court.

In my state, I can call the SC State Bar Association Lawyer Referral Service and ask for the name of a consumer attorney in my area. They'll provide a name, and, as a result, that attorney will give me a free consultation. Some will provide that consultation over the phone. See if the IN Bar Assoc. provides the same thing.

Link to comment
Share on other sites

Thanks for the reply. The account was opened in her name, but without her knowledge. IN is not a community property state.

First, I'd be doing my best to get some advice from an attorney as to whether or not you can speak for her.

If you don't mind, refresh some of the details. What evidence have they provided?

Link to comment
Share on other sites

They bill of sale doesn't prove they own the account. It doesn't show that the specific account was part of the bundle of accounts they purchased from HSBC.

I don't understand how they can use an affidavit with the account # blacked out. Again, the affidavit may show they purchased some accounts, but by blacking out the number, the affidavit is not evidence that the account was purchased.

If the cc statement shows no charges or payments, they haven't even proven the debt is still within the SOL. They also haven't shown how the amount was calculated. Even if your aunt did use the card, there are no other cc statements for her to examine to see if any charges to the account were made her or not.

You have some good arguments against the JDB.

Link to comment
Share on other sites

They bill of sale doesn't prove they own the account. It doesn't show that the specific account was part of the bundle of accounts they purchased from HSBC.

I don't understand how they can use an affidavit with the account # blacked out. Again, the affidavit may show they purchased some accounts, but by blacking out the number, the affidavit is not evidence that the account was purchased.

If the cc statement shows no charges or payments, they haven't even proven the debt is still within the SOL. They also haven't shown how the amount was calculated. Even if your aunt did use the card, there are no other cc statements for her to examine to see if any charges to the account were made her or not.

You have some good arguments against the JDB.

Good luck to the OP.

Link to comment
Share on other sites

Thanks BV. Exactly what I was thinking. Also, written instruments must be provided according to IN trial rule 9.2. Did not receive said "contract" the complaint refers to.

I know there are some good arguments, it's just our first time in court. It's gonna be a learning experience!

Link to comment
Share on other sites

Just got back from court..

Motion to Dismiss w/prejudice GRANTED!!!

This forum rocks! My Aunt and I thank everyone for your support and guidance!

Next up.. CV the Cavalry.

CONGRATULATIONS! :BigDance:::celebrate::

Bless your Aunt's heart! Your's too! I know it's such a relief.

Could you provide some details for others going through the same thing? For instance, were you allowed to speak for your Aunt? Did the judge ask questions? What happened! :)

Link to comment
Share on other sites

Thanks! Here are the details..

First of all, I answered the complaint AND filed the MTD (thanks Flyingifr) on 8/1. We never received notice of the court date via mail. Had I not been diligent in checking the online docket system we would not have known to appear. I was surprised it was scheduled so fast.

We showed an hour early so I could prep my Aunt "just in case". When we where called into the courtroom, two other cases where ahead of us. As the second one adjourned, we noticed we where the only two people left! Judge asked if she was 'defendant', paused, then said she was going to dismiss.

My Aunt said "Really??" and the judge told her she did everything right, filed an answer and MTD. She said two letters where sent to the Plaintiff, we showed and they didn't. At that point, I asked and the judge confirmed that it was dismissed with prejudice.

I believe they may have allowed me to speak, the other case was plaintiff vs wife and the husband was able to do most of the defense.

Thanks again everyone!

Link to comment
Share on other sites

Thanks! Here are the details..

First of all, I answered the complaint AND filed the MTD (thanks Flyingifr) on 8/1. We never received notice of the court date via mail. Had I not been diligent in checking the online docket system we would not have known to appear. I was surprised it was scheduled so fast.

We showed an hour early so I could prep my Aunt "just in case". When we where called into the courtroom, two other cases where ahead of us. As the second one adjourned, we noticed we where the only two people left! Judge asked if she was 'defendant', paused, then said she was going to dismiss.

My Aunt said "Really??" and the judge told her she did everything right, filed an answer and MTD. She said two letters where sent to the Plaintiff, we showed and they didn't. At that point, I asked and the judge confirmed that it was dismissed with prejudice.

I believe they may have allowed me to speak, the other case was plaintiff vs wife and the husband was able to do most of the defense.

Thanks again everyone!

Wow! That was a very understanding judge. Also, you obviously did your homework and should be very proud of yourself. We'll never know for sure why the JDB's attorney didn't show, but the facts that you followed the Rules of Civil Procedure and filed an intelligent response to the Complaint most certainly played a part.

Way to go!

Link to comment
Share on other sites

  • 3 weeks later...
Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.