pherow

Summons/Complaint Letter--Please help

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In #4, there is an allegation. The Plaintiff alleges that Chase assigned them the rights to the account

I would take that more as an unproven statement of fact, which is incumbent upon them to prove. Sort of like an unsupported legal conclusion. My contention was that the paragraph did not accuse the poster of any specific conduct.

I agree that the Plaintiff isn't accusing the OP of any specific conduct. But any allegation, whether it accuses a defendant of specific conduct or not, is an unproven statement if there's no evidence. If a Plaintiff states a defendant opened an account with ABC Company, but provides no evidence, it's an unproven statement, but the defendant still must admit or deny. So I believe the OP should deny #4.

We'd hate for the JDB to file an MSJ and state that the defendant didn't admit or deny #4, so it's deemed admitted. Even though we know the JDB can't prove standing, you don't want to give them any ammunition at all, because you never know what a judge may think.

#4. Denied. Plaintiff has provided no evidence to support the allegation.

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Correct, but it strikes me as a gray area. They are setting forth in the complaint what they intend to prove at trial. If they want to make the contention that the OC assigned rights, let them. If I were the defendant, how would I know one way or the other what transpired between the plaintiff and the alleged predecessor? Having absolutely no information whatsoever which would allow me to make any kind of a decision, I could not logically admit or deny the truthfulness of the statement. I don't feel that it is incumbent upon the defendant to admit or deny this type of thing, just what the plaintiff accuses him of. I did include the mention of standing to sue, which covers him in that regard. I didn't know you could get things in a complaint deemed as as admitted. Maybe he could just add that he has insufficient information upon which to base a conclusion. Either way, you are right, he should never admit to standing. Not his job, it's theirs to prove.

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I didn't know you could get things in a complaint deemed as as admitted.

The following is from the SC RCPs:

Effect of Failure to Deny. Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading.

I don't know if the rule is the same in every court in the country, but if one isn't sure, it's better to be safe than sorry.

Edited by BV80
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Right, rules vary, this is a big problem here on the forum. Nobody can be expected to memorize the rules for 50 states. But my basic argument is that the complaint is supposed to make allegations against the defendant. This paragraph does not do that. The respondent has absolutely no way to say one way or the other what happened between the OC and the JDB. Admitting is bad, we agree, denial is better. However, could not denial be construed to mean that the defendant has certain knowledge upon which to base such a denial? What is that information? That leads to more discovery. A claim that you have no information upon which to base a denial or admission contradicts the denial. This is a very interesting argument, but we are like two Einsteins trying to figure out what a laboratory rat will do. I doubt any JDB attorney cares about or knows this stuff. They work on volume by you-know-what-ing people over. I think they'll ignore anything that doesn't give them a slam dunk judgment.

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I would like to post regarding my situation. I would appreciate any advice that can be given.

 

I have recently been told that I have a garnishment that will begin in about a month from now. I was taken aback because I have been attending to my credit reports for the past couple of years very closely. I have fair to good credit scores and I never saw anything pertaining to bad debt. I began searching for what the issue was. I went to the court house where this originated. In the whole process I have found:

  • A credit card was charged off in 2006
  • The "placement manager" for the credit card company did an affidavit stating that something is true and correct (there is no additional documents to see with this affidavit)
  • A complaint was filed and a summons issued in March 2006
  • I was allegedly served in April of that same year; HOWEVER this is impossible because I did not live at that address at that time. And I have documentation from my former landlord to support this.
  • A default judgment was ordered.
  • This year, 2013, the lawyer signed an affidavit to serve my job (not me)
  • There is a proof of mailing (mailing what? I don't know because there are no other documents with it). And also they mailed it to the address from 7 years ago again, although they should have had my address from my job.
  • The lawyer and circuit court clerk signed a "renewal of judgment" in May 2013. Apparently there is no need for a judge for this.
  • A suggestion of writ of garnishment was signed and issued in August 2013.

My thought is that it should be thrown out due to:

  1. Statute of limitations (3 years in MS)
  2. No due process (I was never served)

However, the few lawyers that I have attempted to contact basically say that it is my word against the service processor and do not want to take the case. Even though I have a statement from my previous landlord.

 

Some have also said to file bankruptcy. I have decent credit through my own diligence and trying to resolve anything on my credit reports. I know that both bankruptcy and garnishments wreak havoc on credit scores.

 

This whole situation seems wrong. But it seems like I cannot find anyone to help.

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@wimf77

 

This is a fairly old thread given the volume of posts on this forum.

You would be much better served if you started your own topic concerning your particular situation.

Go to the home page of this forum Is There A Lawyer In The House; scroll down below the Subforums bar and on the right side of the page will be a button labeled 'Start New Topic'. Click that.

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