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Please review my answers to summons/complaint.


azuser
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Hello again,

Here are my answers so far to the summons/complaint received from Gerstal Chargo for Capital One:

GENERAL ALLEGATIONS

1. Defendant is a resident of the State of Arizona, County of XXXXX; Thus venue is proper according to ARS 22-202

Admit upon information and belief.

2. The amount sought by Plaintiff hereby, exclusive of interest, costs and awarded attorneys' fees is less than $10,000.00; therefore, this court has

jurisdiction over this matter pursuant to ARS 22-201

Denied as no other factual information was sent or provided prior to and at delivery of summons/complaint, such as a signed dated contract with the listed Defendants, a verified account number or listing of all charges to date that the Plaintiff claims the Defendants owe.

3. As owner of the debt at issue, and pursuant to ARCP rule 17(a), Plaintiff is the real party in interest entitled to sue on the debt alleged herein.

Denied as no other factual information was sent or provided prior to and at delivery of summons/complaint, such as a signed dated contract with the listed Defendants, a verified account number or a listing of all charges to date that the Plaintiff claims the Defendants owe.

4. Upon information and belief, Defendant was married at the time the debt alleged herein was incurred, remains married currently, and the debt was incurred to the benefit of the marital community of Defendant. Plaintiff alleges that Defendant and the marital community of Defendant is liable for the debt alleged herein. Plaintiff requests leave to amend this Complaint to include the spouse's true name to this complaint once identified.

Admit upon information and belief.

5. Alternatively, in the event that Defendant was not married at the time the debt alleged herein was incurred, but is currently married, Plaintiff alleges that pursuant to ARS 25-215 Defendant and the marital community of Defendant is liable for the debt alleged herein.

Admit upon information and belief.

6. Additionally, in the event Defendant was married to J. Doe Ex-Spouse at the time the debt alleged herein was incurred, but is no longer married to J. Doe Ex-Spouse, Plaintiff alleges that the marital community of Defendant and J. Doe Ex-Spouse is liable for the debt alleged herein, and Plaintiff seeks to

include J. Doe Ex-Spouse in this action and any subsequent judgement, and requests leave to amend this Complaint to include the ex-spouse's proper name once identified.

Admit upon information and belief.

7. Pursuant to ARS 12-341 the prevailing party shall be entitled to an award of all costs and, pursuant to ARS 12-341.01, the prevailing party may be entitle to an award of reasonable attorneys' fees incurred in pursuing this action.

Admit upon information and belief.

8. Court costs as actually incurred are chargeable to Defendant if Plaintiff is the prevailing party.

Admit upon information and belief.

COUNT I.

9. Plaintiff re-alleges each and every allegation in paragraphs 1 through 8 as though fully set forth herein and incorporates them by this reference.

Defendant answers set forth as presented to allegations in paragraphs 1 through 8.

10. That Defendant applied for a revolving credit card from Plaintiff, and Plaintiff accepted Defendant's application and issued to Defendant its Credit

card.

Denied as no copy of signed application was presented to prior or at time of delivery of summons/complaint.

11. That Defendant accepted and used said Credit card thus issued to Defendant and thereby agreed to abide by the terms and conditions accompanying said credit card.

Denied as no proof of signed application, no proof of statements, usage, or terms and conditions was presented to prior or at time of delivery of summons/complaint.

12. That Defendant owes to Plaintiff for the purchase of goods, wares, and services, on or before September 18, 2011 the sum of $2XXX.XX.

Denied as no proof of signed application, no contract, no proof of statements, usage, or terms and conditions was presented to prior or at time of delivery of summons/complaint.

13. That although duly demanded, Defendant has failed and refused to pay said amount and therefore is indebted to the Plaintiff in the amount of $2XXX.XX, plus interest in the amount of $1XX.XX from and before September 18, 2011, plus interest at the contract rate from and after September 18, 2011.

Denied as no other factual information was sent or provided prior to and at delivery of summons/complaint, such as a signed dated contract with the

listed Defendants, a verified account number or a listing of all charges to date that the Plaintiff claims the Defendants owe.

COUNT II

ACCOUNT STATED

14. Plaintiff re-alleges the allegations set forth in paragraphs 1 through 13 as though fully set forth herein and incorporates them by reference.

Defendant answers set forth as presented to allegations in paragraphs 1 through 13.

15. From time to time, Plaintiff made and rendered to Defendant accurate invoices and/or statements of account of the transactions between said parties. Said invoices and/or statements of account were received by Defendant, accepted and retained by said Defendant without objection being made thereto or to any item thereof.

Denied as no invoices and/or statement of account of the transactions were sent or provided prior to and at delivery of summons/complaint by Plaintiff via any form of certifiable mail delivery.

16. In furtherance of the charges made and cash advances taken, a full, just, and true account was made and stated between Plaintiff and Defendant, which showed a balance of $2XXX.XX, plus interest in the amount of $1XX.XX from and from and before September 18, 2011, plus interest at the contract rate from and after September 18, 2011 due to Plaintiff from defendant over and above all sums received from defendant and for which Defendant is entitled to credit.

Denied as no other factual information was sent or provided prior to and at delivery of summons/complaint, such as a signed dated contract with the

listed Defendants, a verified account number or a listing of all charges to date that the Plaintiff claims the Defendants owe.

17. That although duly demanded, no part or portion of the amount due or owing has been paid.

Denied as no other factual information was sent or provided prior to and at delivery of summons/complaint, such as a signed dated contract with the listed Defendants, a verified account number or a listing of all charges and or payments made to date that the Plaintiff claims the Defendants owe or have

paid.

WHEREFORE, Plaintiff respectfully requests the Court enter judgement against Defendant as follows:

1. For the principal amount of $2XXX.XX, plus interest in the amount of $1XX.XX from and from and before September 18, 2011, plus interest at the contract rate from and after September 18, 2011.

2. For Plaintiff's costs and disbursements incurred herein.

3. Reasonable attorneys' fees of $750.00 in the event of a default judgement or as actually incurred otherwise;

4. Interest accruing at the higher of the contract interest rate or the statutory on the full amount of the judgement after judgement is entered; and

5. For such further and additional relief as the Court deems just, fair and equitable in the premises.

Respectfully submitted this 28th day of November, 2011.

---------------------------

I have not yet started on the defenses to use. Still reading on that issue of it.

Also, several days after receiving the summons, I received a letter from Gerstal Chargo. It appears to be a form letter that would be sent offering to settle for a percentage of the balance since it is tax time and since the possibility of a return.

Do I have the option to respond to this letter? Can I call and try to settle, ask for a dismissal and a release? Obviously, I'd make sure to get it all in writing and preferably certified.

Edited by azuser
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I am running out of time here and have read though the affirmative defenses sticky. I am somewhat confused as it seems that a lot more answers and affirmative defenses are geared towards JDB's and not so much an attorney representing the OC.

I am seeing many affirmative defenses listed, but how many would I really need?

I am about to give up and just file what I have so far.

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Hello AZ user. In my first case I just answered I did not know who midland was and owed them zero. But then I motioned to amend my answer. Hang in there someone will answer your thread be patient. I am not qualified to know if your answers are correct. But like I said someone will be here soon.

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Right or wrong this is what I ended up with on an amended pleading ALSO there was a term that I became aware of last year from a pleading I saw that basically said that the plaintiff was barred from submitting information/documents that were referenced in the complaint but not provided at the time it was submitted, my computer crashed around that time and I did not recover 100% of my mail where the attachment was.

1) Jurisdiction and venue are proper in this court: ADMITTED

2) Defendant entered into a credit card agreement with Plaintiff on XXX for a credit card account with account number 5555555555555

ADMIT in part.

I have had several accounts with BANKSTER. DENY in part, Insufficient evidence and requires proof. I have been presented no evidence that the account I had with BANKSTER is the same account as the debt alleged in this complaint. An alleged account number is insufficient without supporting documentation. Defendant demands strict proof thereof.

3) Upon information and belief defendant has a copy of the agreement upon which this claim is based.

DENIED

Responding Party objects to this statement on the grounds that it requires the defendant to speculate on undocumented information and documents not submitted with the complaint. Plaintiff has attached no proof demonstrating to Court that Defendant is in possession of said document (other than to declare it)

Defendant requires a copy of the alleged original agreement from the year of issue supported by identification of the class of the alleged card and all addendums, proof of source, proof of mailing, proof of receipt and proof of acceptance by Defendant. Defendant demands strict proof thereof.

4) Defendant agreed to the terms and conditions of the credit card agreement by making purchases or taking cash advances on the credit card account:

DENIED.

Insufficient documentation, Responding Party objects to this request on the grounds that it is vague, ambiguous, unintelligible and requires proof in that Responding Party has to speculate as to the meaning of "the credit card" and "the account” Plaintiff has attached no proof demonstrating to Court that Defendant agreed to any terms or the alleged agreement (other than to declare it) Defendant demands strict proof thereof.

5) Plaintiff has fully complied with the terms and conditions of the credit card agreement.

DENIED:

Plaintiff has attached no proof demonstrating to Court or Defendant how Plaintiff has complied with the terms and conditions (other than to declare it) Defendant demands strict proof thereof.

6) Defendant has defaulted under the terms and conditions of the credit card agreement by failing to pay as promised.

DENIED:

Insufficient information and documentation, Responding Party objects to this statement on the grounds that it requires the defendant to speculate on documents and information not provided and as such Plaintiff has attached no proof demonstrating to Court how Defendant has defaulted (other than to declare it) Defendant demands strict proof thereof.

7) There is presently due and owing the sum of $xxxxxxx

DENIED:

Insufficient information, No proof that consideration was given or received. Responding Party objects to this statement on the grounds that it requires the defendant to speculate on undocumented information and documents not submitted with the complaint. Plaintiff has attached no proof demonstrating to Court that defendant owes any amount (other than to declare it)

Defendant requires copies of alleged statements from 0 balance to the present sum declared as owing by Plaintiff and proof of mailing, receipt, acceptance, and payment. Defendant demands strict proof thereof.

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Right or wrong this is what I ended up with on an amended pleading ALSO there was a term that I became aware of last year from a pleading I saw that basically said that the plaintiff was barred from submitting information/documents that were referenced in the complaint but not provided at the time it was submitted, my computer crashed around that time and I did not recover 100% of my mail where the attachment was.

I'd be interested in knowing that.

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What I would do is amend your answer. You don't object in your answer. Also, in my opinion way, way too wordy. I know some states you can't just deny and have to put something. However, if you can do a general denial, that is what I would do.

I hate the lack of information because it makes it appear you just need more information they have and then you are ready to admit to the debt.

1. Admitted, I agree with.

2. That one is a problem. You have pretty much said they just need to show you they are talking about the same account you had. Denied would have been the way to go, but can't worry about that now.

3. Needs no response. Who cares what their information and belief is. I have information and believe I'm President of the United States. You really care to debate that with me? It's just a self serving statement.

This is also where you don't object. You make fine arguments, but premature. What you are asking for is your right to ask for and they have to provide. However, you ask for this in discovery, not in the answer to your lawsuit. They are going to get away with not providing this to you if you don't ask right.

4. All you need is a "denied" once again you don't object and once again your on the right path but you are arguing in the wrong spot. This is just an answer, you don't object. You answered this like it was a request made in discovery.

5. Again, just a statement made by them. Does not really require much of a response. This one you actually could argue lack of info so you deny.

6. lay off the objection. Just say denied.

7. who cares what the sum due and owing is, they did not say there is a sum due and owing by you in the amount of. However, you could just deny. No objection, they are making a claim, just deny and flip the burden to them to prove their case.

Defendant requires copies of alleged statements from 0 balance to the present sum declared as owing by Plaintiff and proof of mailing, receipt, acceptance, and payment. Defendant demands strict proof thereof.

This is for discovery ^^^ and you are going to need to split the requests up. This is a request for production of documents.

You're on the right path in your thinking. You just need to get familiar with the rules of procedure and make your requests by those rules and your arguments at the right time.

I know it's hard but you have to wait months to actually start making arguments. You win and lose cases in discovery. You get their evidence or lack of it and then start finding wholes in that evidence. Once you do that you start chipping away at their evidence. You paint them in a corner with faulty evidence or lack of it, then when it's time for court they have nothing left or just have garbage.

Your way jumping the gun and they are not going to respond to your requests, even though legit requests, until you ask for them by the rules of procedures.

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and the debt was incurred to the benefit of the marital community of Defendant.

You admitted to this? You just put your spouse on the hook for wage garnishment. Make them PROVE it was for the "marital community." For all they know, you bought crack with the cash advance and your spouse doesn't know about it. Same for answer to 5 and 6. Deny 8, you have no way to establish this, it's for them to prove. Clean up the denials, don't argue your case in the answer.

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THANK YOU for posting!

I am grateful for the responses.

I have not yet submitted my answer, as I still have a few days. I do at ALL COSTS want to make sure that none of my answers indicate an admission to anything.

I totally agree that they need to prove everything alleged.

I do still wonder about the "settlement letter" that they sent after the summons/complaint was served.

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I do at ALL COSTS want to make sure that none of my answers indicate an admission to anything.

Well change them, because some of them do and the others that don't, you're providing way too much information.

I do still wonder about the "settlement letter" that they sent after the summons/complaint was served.

You'll probably get about 10 more. 95% of cases settle out of court. No big deal, they are just offering to settle.

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about the married thing deny on lack of information and belief.

deny the attorneys fees

deny jurisdiction also who knows who they are suing it could be someone with a similar name and there may be an arbitration clause so denial would be proper

and the rest where you object but do not deny then that may get deemed admitted.

addmission=bad denial=good

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Seadragon,

Arizona's Civil Answer sheet has the following lines after the plaintiff/defendant and case information lines:

1. The following named Defendant(s) answer(s) the complaint as follows:

2. I (check box) admit (check box) deny that this court has jurisdiction over this matter. (if denied, state reason why.)

3. I admit the following portion of plaintiff's complaint:

4. The plaintiff is not entitled to judgment because:

5. I am asking the court to deny plaintiffs claim. I am also asking reimbursement of mty court costs.

6. I state under penalty of perjury that the forgoing is true and correct.

Date and signature along with certificate of mailing information.

I will use this form to answer with the answers below written in the blanks provided under the repsective questions above:

1. My name and my spouse's name.

2. admit

3. I, (we), admit to NONE of any and all the portions in the plaintiff's complaint.

4. No signed contract and no statement of computed charges, usage, and payments provided.

Do I need anything else in any of those?

Now, I esentially want to settle this out of court for pennies on the dollar. i believe that this will be the easiest way for me.

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Now, I esentially want to settle this out of court for pennies on the dollar. i believe that this will be the easiest way for me.

Remember this is a marathon and not a race, as soon as you get anxious or they perceive you to be anxious they will keep the hammer down.

The system at times moves painfully slow, psychologically prepare yourself.

just keep filing answers and learning the first one that blinks loses.

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Seadragon,

Arizona's Civil Answer sheet has the following lines after the plaintiff/defendant and case information lines:

1. The following named Defendant(s) answer(s) the complaint as follows:

2. I (check box) admit (check box) deny that this court has jurisdiction over this matter. (if denied, state reason why.)

3. I admit the following portion of plaintiff's complaint:

4. The plaintiff is not entitled to judgment because:

5. I am asking the court to deny plaintiffs claim. I am also asking reimbursement of mty court costs.

6. I state under penalty of perjury that the forgoing is true and correct.

Date and signature along with certificate of mailing information.

I will use this form to answer with the answers below written in the blanks provided under the repsective questions above:

1. My name and my spouse's name.

2. admit

3. I, (we), admit to NONE of any and all the portions in the plaintiff's complaint.

4. No signed contract and no statement of computed charges, usage, and payments provided.

Do I need anything else in any of those?

Now, I esentially want to settle this out of court for pennies on the dollar. i believe that this will be the easiest way for me.

1. your name only they haven't brought your wifes name into it.

2. Deny The plaintiff's have not shown standing in the matter, Nor attached any prima facie evidence of indebtedness, additionally the potential right of contractual arbitration is generally known due to postings on the FTC website and Defendant hereby elects arbitration with JAMS.

3. NONE

4. Because plaintiff's they have not shown prima facie evidence of indebtedness, proof of the legal capacity to sue, validity of the alleged account, or that bringing action in this forum is allowed by alleged contract.

5.

6.

Something along those lines

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Attorney fees would only be in the cardholder agreement. Sometimes it is a matter of state law. You can't fight and settle at the same time. If you want to fight and have a valid defense, we can help. Otherwise, make a deal with the creditor. They will not settle for less than 75-85% of the claimed balance, guaranteed. Just the fact that you asked them indicates to them that you caved. There are several contradictions in your answer. 4-8 contradict 2.

Plaintiff alleges that Defendant and the marital community of Defendant is liable for the debt alleged herein. (general allegation 4)

Admit upon information and belief.

You just lost your case if you sent this answer. You admitted to everything they wanted.

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Thanks again for the replies.

To clarify a couple of things:

The summons/complaint is against my wife, I am listed as "J Doe".

I have not yet responded to the summons.

I will be having the wife solely answer the summons/complaint.

I will have her DENY everything.

In regards to the settling, as previously stated, the law firm filed the suit on Dec 29th. Served on Jan 28th. We then received a letter from this lawfirm, dated Dec 27th stating that we could settle for "as low as 30%" and that we must respond before Feb 27th.

So, while I understand that fighting and settling probably can't be done at the same time, seems odd that the law firm offered to do so after filing suit.

Seems to me that gives us an advantage, on the other hand, it seems that we have no choice but to file an answer so that we don't get a default judgment against us.

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