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What to answer; Complaint or Request for Admissions?


Vark
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I have received summons about 12 days ago and been reading ever since.

I do have a couple of questions, though, as I am a bit confused (i'm sure that is waht JDB wants!). I know it's JDB because original debt was with American FINCO, Plaintiff is Velocity Investments, LLC (known JDB).

I am confused, because together with complaint I have received Requests for Admissions and 2 days ago Affidavit. I am confused, because I thought Request for Admissions and Affidavit would be on the next stage, after I answer the complaint. So do I answer the complaint (below) or Request for Admissions? Also the Complaint is not as simple as most examples are, but since all the paragraphs are numbered in sequence as below, than they are all a part of complaint?

With the summons I have received a complaint, that goes as follows:

Jurisdiction.

1. This is an action for damages that are within jurisdictional limits of this court exclusive of interests and costs. (the ansawer would be something along the lines of not being a lawyer and not being able to determine that, I'll get the wording later)

Service.

2. Defendant may be served at ath eaddress listed in court summons (admits)

Venue.

3. answer same as #1.

Facts:

4. The defendant entered into an agreement with American Finco for the extension of credit to facilitate the purchase of goods and services (the "Agreement") under its account number xxxxxxxxxxxxxx (answer? of course they did not provide an original signed Agreement, or a statement showing purchase or a recept of such purchase. They DID attach a copy of CC statement showing the balance due. I guess it was the statement right before the OC charged it off)

5. talks about default on my obligation to make routine monthly payments and that the entire balance is due and payable in full.

6. The past due account was assigned to Plaintiff, Velocity investments (no paperwork confirming that in summons, BUT yesterday I received Affidavit, that looks like affidavit of debt, just called simply "Affidavit" - more about it later).

7. Defendant by use of the funds provided have accepted responsibility to repay such funds (only 1 transaction has been made to that credit card, on it's original date back in 2007, and they didn't attach copy of receipt/statement, that shows it)

8. Defendant defaulted in the payment obligation and cased damages that have been assigned to Plaintiff.

9. Defendant is presently indebted to Plaintiff in teh amount of 6900 that being balance due through the date the account was charged off. Plaintiff also entitled to recover interest at the rate provided for in account statements and Plaintiff seeks judgement for such sums, together with post-judgement interest.

First Cause of action - account stated

10. Plaintiff asserts that Defendant acceptance of the extension of credit represented periodic account for which OC generated regular monthly statements. Defendant is liable to Plaintiff the assignee of the account, for the account balance.

Second cause of action - unjust enrichment

11.talks about being liable to repay under doctrine of unjust enrichment.

12. Plaintiff is teh assignee of OC's right to be repaid by Defendant for such money had and received and is entitled to recover the sum of 6900 plus interest at legal rate.

Conditions Precedent.

13. Plaintiff has demanded payment from defendant, but Defendant has not satisfied such demand. Plaintiff has performed all conditions precedent to the filing of this action, or all such conditions precedent have occured.

WHEREFORE, premisses considered, plaintiff prays that Defendant be summoned to appear, and that upon entry of default or final hearing, Plaintiff have judgement against Defendant for:

a. 6900, which was the balance at the time account was charged off

b. interest from the date through the date of judgement

c.post-judgement interest

d.all costs of court and

e.all such other and further relief to which Plaintiff may be justly entitled.

now on to Requests for Admissions.

it is fairly simple with the citation of Florida Rule of Civic Procedure 1.370 and instructions:

"you are to respond to each of the following requests admitting or denying specifically, in good faith, each matter of which an admission is requested or state in detail the reason you cannot truthfully admit or deny the matter and admit the genuineness of each of the documents taht may be attached as exhibits hereto"

Once again, the only document attached to complaint was a copy (looks like a faxed copy without any indication if it's a true copy of original) the statement, with some hand-written notes on it.

as for Request of admissions:

1. Admit or deny that the amount alleged by Plaintiff in its complaint as due and owing from the Defendant is true and correct.

2. Admit or deny that teh supporting documents attached to P complaint are true copies of original documents provided to the Defendant during the period of time the Defendant had the account that is subject of this action.

3.Admit or deny that the default interest was and continues to be 22.99 (that can be seen on the copy of the statement, but if I deny that the statement is true and correct, I should deny that too?)

4.Admit or deny that the principle amount due as reflected in Plaintiff's complaint is a true and correct representation of the total amount owed according to all statements provided by OC for the account

5.Admit or deny that the damages requested by Plaintiff in it's complaint are liquidated and final.

So the question is: Do I answer the complain, paragraph by paragraph, or answer teh Request for Admissions?

Also I mentioned, that i received Affidavit, that say the usual: such and such is an employee of OC and familiar with business records, that OC sends true and accurate statements, that the records of OC show that account in my name was opened on that date and that OC sold, transfered the title to the account (no bill of sale copy with taht particular account and no documentation of any kind).

I am pretty sure I know what to write in regards to that Affidavit, but the question is: should I do it now or it is too early, and should be done on the next stages, when the trial will be set? I read, that if u ignore it, that automaticly means, that you accept the debt as valid, so I need to Motion to Strike Affidavit of Debt, but since there is no trial hearing set, it is not an evidence yet, or is it? The cover page just states, that it has been filed and affidavit itself is notarized.

Sorry for long post, just tried to be as thorough, as possible.

Thank you in advance for any info/links/suggestions/rant:)++

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Admissions tend to be on a strict timeline just like the Answer to the complaint is on a timeline. What concerns me is that the affidavit is from someone at the OC. If someone from the OC claims to be a custodian of records, then to establish an account stated claim all they have to say is the following:

1.You had prior business dealings.

2.They sent you periodic statements in the mail to which you did not object.

3.The amount due is both fixed AND agreed upon.

Looking at the language of the affidavit it seems as though they have established, via their word, that you both had a business relationship and it is likely that you owe them money. They may not need to show a bill of sale necessarily because affidavits from OC's custodians of record are taken as fact before the court. The only way to get over that is to attach an affidavit of your own, notarized and sworn with different facts than what the OC custodian of record alleged. That way a difference in material facts are created to defeat a motion for summary judgment, which is what they're going for anyway.

Please consider getting some discovery going of your own. By attaching Admissions requests to the complaint, they are putting YOU on a strict timeline so that they will statistically get a default judgment. It is unlikely that they have admissible evidence but you have to answer the complaint properly. For the account stated claim, there are specific defenses you must use to have a prayer of defeating it and same for unjust enrichment. What bothers me about this suit on another level is that the evidentiary burdens for both causes of action are very low. Basically all they are saying is 'YOU OWE US MONEY. PAY UP' It's all a game of chess. Now you are on the defensive. Answer, put it up here to get feedback and get some discovery of your own going. If they are the usual JDB then they are sloppy and you can use that against them.

GOOD LUCK!!!

Edited by rikkivs
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The complaint and admissions were in one package, but stapled separately.

So I will be filing 2 separate answers: to the complaint and admissions?

Which specific defenses should I look at in regards to Account Stated and Unjust Enrichment?

In regards to Affidavit: the employee of OC does not state, that he/she is custodian of records, just says that he is "familiar with business records".

Also he states, that "the records of OC indicate that account xxxxxx was opened on 01/16/2007 in Defendant's name, Social Security#(blacked out)"

He states that OC trensferred good and marketable title to teh account to JDB.

I understand, that they may need not to Produce a Bill of sale to confirm that transfer, but I will need a Bill of Sale to make sure MY account is listed there and it is not just a bulk sale (remember seeing it on the forum).

So my discoveries should be based on attacking the affidavit/person behind affidavit? (the usual affidavit defense described on forums?)

thank you

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Primarily they center around objecting to the amount they're suing you for. I mentioned the elements of account stated above and so you have to tear each of those apart.

For example if you had prior course of dealings with the Plaintiff, have you paid off your previous obligations to them? If so you'd assert: All prior obligations to Plaintiff paid and if you paid some but not all of the obligation you'd assert: Setoff.

If you've never had business dealings with the entity suing you, you can assert: No prior course of dealing.

If you have objected to the balance due orally or through writing you may also assert: Defendant has objected to alleged amount due in account and it is not fixed nor agreed upon. Lastly if the entity has claimed to send you statements periodically in the mail but you never received them, you can also state: Defendant did not receive statements periodically on alleged account through the mail or otherwise. Here is a link on the elements of account stated.

The elements of unjust enrichment are similar and can be found here.

You have to make sure to state facts and that the Plaintiff has unclean hands to defeat this claim. And there are other defenses that I've seen in the past and am currently looking for;)

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