Being sued in Louisiana by Asset Acceptance LLC, opinions on my response

[toadvine]

I received a civil citation last week, Asset Acceptance suing me for a debt to Best Buy for a little over $2600. Was wondering if my responses are good enough to turn in...any help would be greatly appreciated.

their petition, slightly abbreviated, followed by my response after each claim:

1. defendant is indebted unto Asset Acceptance LLC for the amount ## plus accrued interest calculated through November 8, 2011 in the amount of ## plus additional interest at the rate of 12% per annum from November 8 2011 until paid plus 25% attorney's fees on the aggregate principal and interest and for all costs of this suit;

1. (response) Denied: Responding party has entered in to no agreement with the plaintiff and is not indebted to the plaintiff for any of the amounts stated.

2. defendant entered into an agreement with ASSET ACCEPTANCE, LLC, or its assignor whereby defendant(s) was/were granted the right to obtain goods or services on open account through the use of a credit card. The original creditor is HSBC BEST BUY CARD. The agreement between the parties was further perfected by use of the credit card issued to the defendant(s).

2. (response) Denied: Responding party objects to this request on the grounds that it is vague, ambiguous and unintelligible and that no agreement exists between the plaintiff and defendant.

3. defendant personally or through his or her authorized representative subsequently contracted for sales on open account and acquired goods and services on open account.

3. (response) Denied: This request calls for an admission of matter defendant has denied and thus it is improper.

4. defendant breaches the Agreement by failing to make payments due on the Account pursuant to the terms of the Agreement.

4. (response) Denied: This request calls for an admission of matter defendant has denied and thus it is improper.

** claims 5 and 6 i denied in one statement...noted below

5. ASSET ACCEPTANCE, LLC has met all requisites of LRS 9:2781 and the contract between the parties and is due attorney's fees for the prosecution and collection of this claim. It is respectfully submitted that 25% is a minimum reasonable attorney's fee.

6. After all payments or credits the balance due, notwithstanding amicable demand is ##. WHEREFORE PETITION PRAYS for Judgment herin in favor of ASSET ACCEPTANCE, LLC, and against defendant in the full sum of ## plus accrued interest at the rate of 12% per annum from November 8 2011 until paid plus 25% attorney's fees on the aggregate of principal and interest and for all costs of this suit.

(response for 5 and 6 is):

FUTHERMORE, Defendant DENIES every other allegation not previously admitted, denied or controverted.

then i added this:

AS AND FOR AFFIRMATIVE DEFENSES

1. Plaintiff fails to state a cause of action against the defendant.

2. The court would unjustly enrich the plaintiff by granting the relief sought herein.

3. Failure of Consideration: No exchange of money or goods occurred between the plaintiff and the defendant.

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 your contract, and lawfully charged.

Defendant also insists that the plaintiff come up with the contract, account

statements and purchase receipts to prove the amount of the debt.

WHEREFORE, the defendant asks the Court for judgment:

a. dismissing the complaint herein with prejudice.

In the papers I got from the court there was also a Request for Admission of Facts, that said:

NOW INTO COURT, through undersigned counsel, comes ASSET ACCEPTANCE, LLC who request that defendant admit the following:

1. Please admit that the Plaintiff is the assignee of and/or originator of an account in your name.

2. Please admit that the amount set forth in the plaintiff's petition is correct.

I wasn't really sure how to respond to this as there was no sheet given for a response like there was for the other thing, so I figured I'd write:

AS FOR REQUESTS FOR ADMISSION OF FACTS

1. Defendant denies as no agreement exists between plaintiff and defendant.

2. Defendant denies as no debt is owed to the plaintiff by the defendant.

Any help would be greatly appreciated. I applied for free legal aid (i make minimum wage and work part time) but was denied due to the amount my roommate makes, which is ... beyond ridiculous to me. I can't afford any legal defense so I'm just using bits of what I've found online to come up with what I've posted here. I need to turn this in within the next 3 days and am a little freaked out by the whole thing.

[legaleagle]

2. (response) Denied: Responding party objects to this request on the grounds that it is vague, ambiguous and unintelligible and that no agreement exists between the plaintiff and defendant

You do not object to a complaint, you just answer. Take out the objection.

. Plaintiff fails to state a cause of action against the defendant.

I would pursue this. The complaint sets forth absolutely no statutory or common law cause of action. Make them use account stated or breach of contract, each can be defended on different grounds. 2-4 are worthless. Delete them. "Come up with" is imnproper language. Use "produce." Actually, delete this as it is a request for production of documents.

1. Please admit that the Plaintiff is the assignee of and/or originator of an account in your name.

OBJECTION Calls for a legal conclusion. Defendant has no clue as to whether or not Plaintiff is the rightful owner of the account. Ownership is the burden of the Plaintiff.

2. Please admit that the amount set forth in the plaintiff's petition is correct.

OBJECTION Calls for a legal conclusion best left to the trier of fact. Defendant avers that he owes not one penny to Plaintiff.

Look into arbitration. Who did the actual financing? Best Buy uses somebody like Citibank or Chase, find out.

[toadvine]

Thank you very much for the response. So, I don't have to address each argument or point on the petition with its own response? I can just deny, then state the affirmative defense? Should I remove all of the separate denials and only include one? Here's what I came up with after reading your response, again thank you very much.

Denied: Responding party has entered in to no agreement with the Plaintiff and is not indebted to the Plaintiff for any of the amounts stated.

FUTHERMORE, Defendant DENIES every other allegation not previously admitted, denied or controverted.

AS AND FOR AFFIRMATIVE DEFENSES

Plaintiff fails to state a cause of action against the Defendant.

WHEREFORE, the defendant asks the Court for judgment:

a. dismissing the complaint herein with prejudice.

AS FOR REQUESTS FOR ADMISSION OF FACTS

1. OBJECTION Calls for a legal conclusion. Defendant has no clue as to whether or not Plaintiff is the rightful owner of the account. Ownership is the burden of the Plaintiff.

2. OBJECTION Calls for a legal conclusion best left to the trier of fact. Defendant avers that he owes not one penny to Plaintiff.

[BV80]

It would be helpful if you would copy and answer the questions in the following link. You answers to the questions in the link might help determine your responses to the allegations in the Complaint.

http://www.creditinfocenter.com/forums/there-lawyer-house/242744-qs-answer-when-posting-forum-please-read.html

I respectfully disagree with your answer to allegation #2. The allegation is not vague, ambiguous, or unintelligible. I have a feeling you know exactly what they are alleging.

If Asset didn't include any documentation with the Complaint, I would answer allegation #2 by stating:

Denied. Defendant has insufficient information to admit or deny and, therefore, respectfully denies.

That's why it would be helpful for you to answer the questions in the link.

[legaleagle]

Tune it up a bit as we told you. Take out the dismissal crap, that never flies. No judge will dismiss a case just because you asked him to.

[toadvine]

1. Who is the named plaintiff in the suit?

Asset Acceptance, LLC

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

Couch, Conville & Blitt

3. How much are you being sued for?

$2,658.13 plus accrued interest at $113.59 plus %25 attorney's fees (doesn't specify)

4. Who is the original creditor? (if not the Plaintiff)

HSBC Best Buy

5. How do you know you are being sued? (You were served, right?)

I was served

6. How were you served? (Mail, In person, Notice on door)

Marshall left a notice on my door and I went to the courthouse where I was served the papers.

7. Was the service legal as required by your state?

I believe so.

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

They've sent me letters, I've never communicated with them in any way.

9. What state and county do you live in?

Louisiana, Lincoln Parish

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

March 2010

11. What is the SOL on the debt? To find out:

3 years

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

Not sure. Can't find web service and the courthouse is closed.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

No.

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

No.

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

10 days, which leaves only 3 days remaining.

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

Nothing attached, other than the Request for Admission of Facts.

[BV80]

Thank you for answering the questions. That helps.

As Legaleagle suggested, take out the dismissal and the objection to the complaint

Here's my suggestions.

Allegations

2. Denied. Defendant has insufficient information to admit or deny and, therefore, respectfully denies.

3. Denied. Defendant does not recall the alleged account and has insufficient information to admit or deny. Therefore, Defendant respectfully denies.

(You really can't state "This request calls for an admission of matter defendant has denied and thus it is improper." The Plaintiff is just now finding out that you're denying everything. They didn't know that before now.)

4. Same as #3.

I disagree with your affirmative defense. They have stated a cause of action. Whether or not they can prove it remains to be seen. Also, if I'm not mistaken, that's a defense you don't have to raise. It's a given. Read your court's Rules of Civil Procedure regarding affirmative defenses. See if they say anything about defenses being waived if not raised in the Answer to the Complaint. If you're not sure, I'd use Lack of Standing. That cause of action has to do with their right to bring the suit against you. If they can't prove they own the account, they can't prove they have the right to sue you.

Lack of Standing. Plaintiff has not proven they are the owners of the alleged account with standing to sue.

Be sure to carefully read your Rules of Civil Procedure.

[Coltfan1972]

As Legal correctly stated, you don't object to the complaint. Well you do but it is by denying the allegations, not raising objections. You object to things like admissions and request for production of documents.

The only reason they asked you to admit their standing is the hope you won't answer so it can be deemed as admitted. If you wanted to admit they have standing (you would be insane) you could not. That is something they must prove. You can't know if they have standing. You don't have their records and you don't work for them.

However, you can see the emphasis they place on their weakness, standing. They are showing you where to attack. Your affirmative defenses 2-4 don't work and 4 is not an affirmative defense anyway, it's what the other side has to prove to win, not you disprove their claim. An affirmative defense means you basically agree with the lawsuit but you have a legal justification that you should still not be liable.

Edited January 15, 2012 by Coltfan1972

[toadvine]

thank you all for your replies, they are greatly appreciated. I'll be taking my response to the court tomorrow, my last question is - do I write all of this on the sheet they offered for my response? Does it even matter if it is hand written? And I'm assuming I don't have to send any of it to the plaintiff, the court takes care of that?

[1stStep]

You should not handwrite these responses...check your court rules. I'll bet that any document sent has to be type written in proper legal form.

Discovery is also sent to the plaintiff's attorney - not filed with the court.

Failing to conform to the rules of the court can mean your responses can be deemed admitted, tossed out, or you can be sanctioned...

Edited January 16, 2012 by 1stStep

[legaleagle]

They have stated a cause of action.

They say the following:

defendant entered into an agreement

defendant breaches the Agreement

the contract between the parties

...services on open account through the use of a credit card

They have hinted at several theories here without concretely stating any of them. Guys like us can see this, but a person being sued for the first time would never be able to figure out what the cause of action here was. At the very least, ask for a more definite statement. The complaint makes one thing clear....the plaintiff is claiming a debt is owed. The manner in which he intends to pursue the case is critical, as it goes toward the type of defense utilized. JDBs seem to be doing this more and more.... very vague complaints that don't really state a cause of action, it's "make it up as we go along."