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urgent help needed--only 7 days left


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I have seven days to answer the complaint I am attaching. The amount is for $6K. They have included a standard affidavit from a Citibank employee that they handle records. I can attach that if someone needs to see it. Should I send request for discovery with my answers, and if so could someone show me examples of how you write that into the answers, etc.

Thanks....complaint below[ATTACH]284[/ATTACH]

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Deny the bill and up in the stickies in a topic about 'affirmative defenses'. Read thru those and put it in your answer to the court.

I hope someone from your state comes around to help you but theres a starting place. The important thing is to get your denial in on time. What is the statute of limitations in your state? (SOL). Have they gone by? I put everything and the kitchen sink for my affirmative defenses and I stated I had no knowledge of the account.

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7 days is plenty of time to get a response to that written and filed. With discovery, do you understand what you are doing? If not, you should hold off until you do. You are planning on fighting and IMO, the sooner they receive discovery requests from you, the better, but they should receive requests from a person who understands the process and the requests sent.

If you don't want to automatically lose, you are going to have to deny everything. You will likely have to do so on the basis of a lack of personal knowledge, but you will know some key details that may make denying for a different reason appropriate.

First things first though, you need to start learning Indiana's rules of civil procedure. It is a daunting task and it will take some serious work on your part.

Indiana Rules of Trial Procedure

Start by learning what the rules say about pleadings and responses.

Rule 8. General rules of pleading

(A) Claims for Relief. To state a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, a pleading must contain:

(1) a short and plain statement of the claim showing that the pleader is entitled to relief, and

(2) a demand for relief to which the pleader deems entitled. Relief in the alternative or of several different types may be demanded. However, in any complaint seeking damages for personal injury or death, or seeking punitive damages, no dollar amount or figure shall be included in the demand.

(B) Defenses: Form of denials. A responsive pleading shall state in short and plain terms the pleader’s defenses to each claim asserted and shall admit or controvert the averments set forth in the preceding pleading. If in good faith the pleader intends to deny all the averments in the preceding pleading, he may do so by general denial subject to the provisions of Rule 11. If he does not intend a general denial, he may:

(1) specifically deny designated averments or paragraphs; or

(2) generally deny all averments except such designated averments and paragraphs as he expressly admits.

If he lacks knowledge or information sufficient to form a belief as to the truth of an averment, he shall so state and his statement shall be considered a denial. If in good faith a pleader intends to deny only a part or a qualification of an averment, he shall specify so much of it as is true and material and deny the remainder. All denials shall fairly meet the substance of the averments denied. This rule shall have no application to uncontested actions for divorce, or to answers required to be filed by clerks or guardians ad litem.

[emph added]

Rule 3.1 also looks like it might also be kind of important and should be payed attention to.

So, first things first. Read and understand the rules that you need to for responding, then you can write and file your response with the court. Once that is out of the way, you can look through the rules to see how discovery is handled in your state. Once you understand that, you can get to work on sending them discovery.

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Can someone please show me some sample answers to my complaint, as well as some affirmative defenses to the 4 paragraphs in the complaint.

I did have credit cards with this bank, but I don't know which ones they refer to since they only used the last four digits of the account number. I also have no idea of the amount owed. I don't have the original agreement, and as far as I know they have never demanded payment.

I don't have any money to pay so I really need the help.

Thanks

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Can someone please show me some sample answers to my complaint, as well as some affirmative defenses to the 4 paragraphs in the complaint.

I did have credit cards with this bank, but I don't know which ones they refer to since they only used the last four digits of the account number. I also have no idea of the amount owed. I don't have the original agreement, and as far as I know they have never demanded payment.

I don't have any money to pay so I really need the help.

Thanks

Indiana's rules of civil procedure tell you an appropriate response. See the bolded part in the portion that I posted. That would lead to something along these lines:

Defendant lacks knowledge or information sufficient to form a belief as to the truth of the averment and thus must deny.

Each paragraph would be an averment (fancy legalese for claim.)

I cannot stress enough that you must know and understand the rules of civil procedure. That is what the courts go by and they are going to expect you to go by those rules too. You don't want to lose simply because the other side is better with the rules than you and they get an MSJ because it says somewhere that you need to submit your own affidavit.

Also, one thing that I noticed is that they seem to be lacking a date of last payment or a date of last purchase. [Or did I miss it?] That might be on the statement attached to the complaint, but don't post it. It opens up the possibility of a statute of limitations defense. At the very least, it is something that you can make them show.

With affirmative defenses, be very careful. IMO, you should not include anything that you do not understand and cannot articulate to the court why are using it and how you intend to use it. If you cannot make a good faith argument as to why you are including a SOL defense, do not include it. If you can make such an argument, include it. Just remember, with affirmative defenses, the burden of proof is on YOU.

Edited by usagi555
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I would say Statute of Limitations, but there simply is not enough information. Again, it is up to you to prove an affirmative defense. The place where you can really make their heads spin is with discovery. With that, I am more than willing to help, but you will need to understand the discovery process and why the requests are relevant. There are some specific requests that should be able to lead to you getting the affidavit thrown out and open the attorneys up to FDCPA claims.

Edited by usagi555
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:)++I think you were like I was... confused--especially about claiming affirmative defenses.

Here's what I have learned (YMMV depending on your states rules):

In the "complaint" (aka: paper they sent saying "we are suing you because...") they list several statements (usually numbered, saying "we gave you credit, you didn't pay") which you are supposed to answer back to them why you think their statements are correct (admit), wrong (deny) or that you "lacks knowledge or information sufficient to form a belief as to the truth of an averment" (acts as a denial in your state).

Now, all of those answers you gave in response to their "statements" ARE considered to be a "form" of a defense!!! Usually when you deny their statement, your court rules will probably say you have to give a short explaination why you are denying.

So, what the blazes is that "Affirmative Defenses" section for?? Well, check out the definition of "Affirmative Defenses"....

"A new fact or set of facts that operates to defeat a claim even if the facts supporting that claim are true."

Did you catch that? A NEW fact!! So, let's say in your case the alleged debt is beyond the SOL. Did they bring that up in their statements where your response was able to refer to it being beyond SOL? If not, then SOL would be one of your "Affirmative Defenses"!! And so on and so forth, for any other defenses that you have that were NOT brought up by defending your answer to their statements.

And if I am incorrect, the knowledgeable people here will jump in (and on me!) and let me know-- but in the nicest possible way... :wink:

Does that help you any???

EDITED TO ADD: But, don't forget--any affirmative defenses become YOUR job to prove!!! So just make sure you can prove it!!!

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This is why you need to go through the rules of civil procedure. It will lay out the rules that the discovery process is governed by.

Indiana Rules of Trial Procedure

While it looks like you can serve discovery requests with your answer, you should not do so until you understand the discovery process. Discovery requests are going to be independent from your answer.

You can read the link above, then you can come back and many people will have a lot of input about the discovery process when it comes to parts that you do not understand.

However, if I were in your shoes, I would be concentrating on the answer right now. Read the rules on pleadings. Then read them again. Then again. Make sure you understand them. Look at Rule 9.2. Make sure you understand it. I would be getting my answer taken care of, then start focusing on discovery. The reason for this is that though having some solid discovery requests soon is a very good idea (IMO,) not having an answer filed will allow the plaintiff to move for default judgment. Discovery is something that you will have plenty of time to learn about and pound the other side with.

This is going to be a long drawn out process and it is going to take its toll on your mental state. You need to prepare yourself for that, step back, take a deep breath and prepare for the long haul. This is an OC and they may be able to win no matter what you do, but if you can send them home with their tails between their legs, then you have really done something.

Edited by usagi555
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Don't get discouraged, it is daunting to try and learn so much in such a short amount of time, but you get your response in and then start learning what to do next, each state is similar but has many differences, what works in Michigan may not fly in Indiana.

When you do discovery remember the road runs both ways, they can send discovery to you too that needs to be answered. If you get it from them I think its important to send your discovery questions to them as quickly as possible. If I were to do it again I'd send it with my answer to the summons just to give them the heads up that I'm fighting.

In these situations you are going to pay with time out of your life, because you can't just cut and paste the stuff you find you really need to understand what you are sending in to the court because YES there will be a test and the Judge will be the one you have to answer to. If you understand and follow the rules it will benefit you greatly.

If you don't have the time to learn how to defend yourself I just don't think there is a point in going forward, if you are unprepared you are going to be in trouble. IF you are in dire straights financially consider bankruptcy and spare yourself the stress and anguish, my bankruptcy attorney told me to "frog" with them all I wanted and then when they got the judgment to call and they would have the electronic filing ready to go.

But they didn't get a judgment, I was literally paid to go away and both lawsuits were settled. (and I haven't had to file bankruptcy)

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You can almost always ask the court for more time to respond to the complaint. This is known as a motion (or request) for an extension of time. Clerks grant these, usually 30 days, very easy to get, usually provided for in the practice book. Especially during holidays. I suggest you do that, then we can help you formulate an answer. When I said post the complaint, I meant type it here so we can type some responses under each paragraph. JPEGs don't work. Ask opposing counsel to exchange docs in some format you can use on the computer.

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I agree with Usagi. Right now, focus on answering the Complaint. You can work on discovery requests after you file your Answer.

Just make sure that you admit or deny each one of their allegations. If you state "Defendant has insufficient information to admit or deny" be sure to end it with "and, therefore, must deny." If you don't deny an allegation, then it's deemed admitted.

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You can almost always ask the court for more time to respond to the complaint. This is known as a motion (or request) for an extension of time. Clerks grant these, usually 30 days, very easy to get, usually provided for in the practice book. Especially during holidays. I suggest you do that, then we can help you formulate an answer. When I said post the complaint, I meant type it here so we can type some responses under each paragraph. JPEGs don't work. Ask opposing counsel to exchange docs in some format you can use on the computer.

Okay leagleeagle,

Below is the complaint typed paragraph by paragraph. Hope this helps, looking forward to the answers. I would like to answer on monday. Thanks

1. There is due the Plaintiff from the Defendant upon a credit card account debt, acount number xxxx-xxxx-xxxx-8888, the sum of $4,xxx.xx.

2. Attached hereto as Exhibit "A" is a business record showing the balance owed the Plaintiff. The remaining account records are not attached hereto because, upon information and belief: (a) copies were sent monthly to the Defendant, and are or were in Defendant's possession, custody or control; (B) said records were archived by Plaintiff; and/or © said account records may be voluminous.

3. Defendant is in default on this repayment obligation.

4. Although due demand has been made, the Defendant has failed to liquidate the balance due and owing.

WHEREFORE, the Plaintiff prays for a Judgment against the Defendant, in the amount of $4,xxx.xx with interest at the rate of 8% per annum from date of judgment, and costs of the within action, and such other and further relief as the court deems just and proper under the circumstances.

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IMO, you should post what you think good answers are. If they aren't, they will get critiqued and you will learn something. If they are good, you will have shown that you learned something. Either way, you are the one who has to go in and argue your case. We can't do it for you.

You have two options: The general denial as suggested by admin and the point by point answer. IMO, its 6 one way, 1/2 dozen the other, especially with a complaint that short.

EDIT: Don't worry about people on here thinking that you suck just because your answers aren't what a $250/hr lawyer would draft. You have been thrown into a very complex system of rules of procedure without a personal guide, and it is overwhelming. Having to cram a couple semesters worth of legal education into a couple of months can be quite daunting, but it can be done.

Edited by usagi555
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IMO, you should post what you think good answers are. If they aren't, they will get critiqued and you will learn something. If they are good, you will have shown that you learned something.

I respectfully disagree. I assume he is here because he does not know what good answers are. Granted, he has to educate himself, but he does not have the luxury of that much time. He can submit a general denial, then we can educate him. He'll have plenty of time to learn, I am sure the opposition doesn't work that fast or that well. Submitting legally insufficient answers will only make more problems for him, better he learns from square one.

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I'm not suggesting that he answer the complaint, then come back and post it here. I'm suggesting that he post what he thinks the answers should be first. It's a very short complaint, and isn't something that will take two weeks. If he posts some answers tonight, they will be looked at tonight, or at the very worst tomorrow. There is time for what I am talking about even if the answer is to be filed on Monday.

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1. There is due the Plaintiff from the Defendant upon a credit card account debt, acount number xxxx-xxxx-xxxx-8888, the sum of $4,xxx.xx.

DENIED to the extent that any suggested amount allegedly due is a matter to be determined by the trier of fact. An incomplete record of the alleged account does not establish a reasonable basis for liability.

2. Attached hereto as Exhibit "A" is a business record showing the balance owed the Plaintiff. The remaining account records are not attached hereto because, upon information and belief: (a) copies were sent monthly to the Defendant, and are or were in Defendant's possession, custody or control; (B) said records were archived by Plaintiff; and/or © said account records may be voluminous.

The paragraph contains no direct allegation against the defendant. It is evidentiary in nature, therefore any amount alleged is the burden of plaintiff to prove. "Information and belief" is not admissible evidence. Defendant has no comment concerning archiving of plaintiff's records or the manner in which alleged statements may or may not have been mailed or recieved. Such claims are incumbent upon plaintiff to prove. Defendant maintains that Plaintiff cannot do so.

3. Defendant is in default on this repayment obligation.

DENIED to the extent that "default" is a legal term, the basis for which is best left to the trier of fact.

4. Although due demand has been made, the Defendant has failed to liquidate the balance due and owing.

DENIED to the exent that "the balance due and owing" has yet to be determined at trial. Therefore any conclusions connected to liability are speculative and best left to the trier of fact.

WHEREFORE, the Plaintiff prays for a Judgment against the Defendant, in the amount of $4,xxx.xx with interest at the rate of 8% per annum from date of judgment, and costs of the within action, and such other and further relief as the court deems just and proper under the circumstances.

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I have some problems with those responses:

1) OP is coming from no knowledge to filing that. I'd be kind of curious if I were the judge or opposing attorney. Especially if any oral arguments didn't match up. Somebody might start asking questions.

2) They way they are worded plus the allegations made in the complaint are open to being twisted by a weasel. Notice that there are no claims like "Defendant did apply for and receive account." It's implied, but never stated. Put those two together and it could potentially be twisted to "You never disputed the debt, just the amount and whether or not you are in default." It would be a dirty trick that hopefully a judge would smack down hard, but look at what the OP is dealing with and, why take a chance?

3) Indiana's civil rules of procedure specifically state that a defendant answering an averement with a lack of knowledge or information to form a belief as to the truth of the averement must state much in his pleading. The OP stated to us that he/she did not have knowledge to form such a belief. Such a statement is to be considered a denial.

I would personally keep it simple and match the wording of the rule when appropriate. It closes the door on numerous questions and Uh-ohs. It also fails to give away any information to the other side that it might use.

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Thank you for your well informed opinion, it is always well respected here. I will give my reasons for my suggested answers herein.

1) OP is coming from no knowledge to filing that. I'd be kind of curious if I were the judge or opposing attorney. Especially if any oral arguments didn't match up. Somebody might start asking questions.

The suggested response is based upon what is alleged in the complaint, not from any basis of knowledge. The basis of knowledge goes toward evidentiary matters which are the burden of the plaintiff. I suggest a simple denial, let the plaintiff thereafter prove his case. Nothing further is required in the answer.

2) They way they are worded plus the allegations made in the complaint are open to being twisted by a weasel. Notice that there are no claims like "Defendant did apply for and receive account." It's implied, but never stated. Put those two together and it could potentially be twisted to "You never disputed the debt, just the amount and whether or not you are in default." It would be a dirty trick that hopefully a judge would smack down hard, but look at what the OP is dealing with and, why take a chance? 3) Indiana's civil rules of procedure specifically state that a defendant answering an averement with a lack of knowledge or information to form a belief as to the truth of the averement must state much in his pleading. The OP stated to us that he/she did not have knowledge to form such a belief. Such a statement is to be considered a denial.

The averment is that the attched "business record" is true. the rest is unproven and therefore speculative conclusion. No such allegations are set forth in the paragraph. "Upon information and belief" works both ways. This is a classic setup for account stated. Live or die by what you put in your pleadings.

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