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Missouri Summons - Time To Answer


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Hi all and thank you for this forum. I received a summons from Midland (I know, I know) and my court date is on 2/27. I had originally planned to just show up and try to make a deal but after doing my due diligence (but rather late in it) I've decided to not roll over. My question is what is my time frame to respond to this? I've read both the MO statute and the RCP but they both seem to contradict each other. Here's what the state says:

Petition required, form--affirmative defenses, counterclaims, cross-claims, filing--extension of filing, when.

517.031. 1. The plaintiff shall file a written petition containing the facts upon which the claim is founded. A copy of any written instrument or account in support of the petition should be attached and filed. The pleadings of the petition shall be informal unless the court in its discretion requires formal pleadings.

2. Affirmative defenses, counterclaims and cross claims shall be filed in writing not later than the return date and time of the summons unless leave to file the same at a later date is granted by the court. No other responsive pleading need be filed. If no responsive pleading is filed, the statements made in the petition, affirmative defenses, counterclaims or cross claims shall be considered denied except as provided in section 517.132.

3. For good cause shown, the court may extend the time for filing any pleading.

(L. 1985 S.B. 5, et al., A.L. 1988 H.B. 1660)

Here's what the RCP says:

55.25. Time of Pleading

(a) Answer - When Filed. A defendant shall file an answer within thirty days after the service of the summons and petition, except where service by mail is had, in which event a defendant shall file an answer within thirty days after the acknowledgment of receipt of summons and petition or return registered or certified mail receipt is filed in the case or within forty-five days after the first publication of notice if neither personal service nor service by mail is had.

(B) Answer to Cross-Claim and Reply to Counterclaim and Other Replies - When Filed. If a cross-claim is filed against a party, the party shall file answer thereto within thirty days after the same is filed. A reply shall be filed within thirty days after the filing of the pleading to which it is directed. If a reply is ordered by the court, it shall be filed within twenty days after the entry of the order unless the order otherwise directs.

© Effect of Filing Motions on Time to Plead. The filing of any motion provided for in Rule 55.27 alters the time fixed for filing any required responsive pleadings as follows, unless a different time is fixed by order of the court: If the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be filed within ten days after notice of the court's action; if the court grants a motion for a more definite statement the responsive pleading shall be filed within ten days after the filing of the more definite statement. In either case the time for filing of the responsive pleading shall be no less than remains of the time which would have been allowed under this Rule if the motion had not been made.

(d) Amendments Affecting Parties in Default. When Rule 43.01(a) requires the service of new or amended pleadings upon a party in default, the party in default shall appear and defend within the same time as is required after the original service of process of like character.

(Adopted Jan. 19, 1973, eff. Sept. 1, 1973. Amended May 6, 1976, eff. Jan. 1, 1977; June 14, 1988, eff. Jan. 1, 1989; June 1, 1993, eff. Jan. 1, 1994; Sept. 28, 1993, eff. Jan. 1, 1994.)

This is really confusing to me. On another post, the sticky by brjmhome6, he said in Missouri that the answer is when you show up.

Can someone help me?

Thank you.

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(a) Answer - When Filed. A defendant shall file an answer within thirty days after the service of the summons and petition

This says it all. Post the complaint here before you answer, change names and amounts somewhat. The other guy may have been in small claims, that's usually where you just appear. What court are you in, small or superior? Makes all the difference.

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It's in Judicial Circuit Court Greene County Missouri. The amount is around $6,000. The front page (yellow):

You are summoned to appear before this court on the date, time and location above to answer the attached petition. If you fail to do so, judgement by default will be taken against you for the relief demanded in the petition. You may be permitted to file certain responsive pleadings, pursuant to Chapter 517 RSMo. Should you have any questions regarding responsive pleadings in this case, you should consult an attorney.

Here is the petiton:

IN THE CIRCUIT COURT OF GREENE COUNTY

ASSOCIATE JUDGE DIVISION

STATE OF MISSOURI

MIDLAND FUNDING LLC.

Plaintiff

Vs

XXXXXXXXXXXXXXXX

Defendant

PETITION

COUNT 1 – SUIT ON ACCOUNT

Comes now, Plaintiff, MIDLAND FUNDING LLC , and for its cause of action against Defendant(s), states as follows:

1. All times pertinent therein, Plaintiff was at all times relevant herein a A LIMITED LIABILITY COMPANY, duly organized and existing under law.

2. Plaintiff is the holder of a valid assignment of an account which originated with CHASE BANK USA NA.

3. Defendant(s) is/are resident(s) of GREENE COUNTY, Missouri

4. CHASE BANK USA NA and Defendant(s) entered into a contract, whereby CHASE BANK USA NA extended credit pursuant to the terms and condition of a credit agreement (hereinafter referred to as “Agreement”) and Defendants(s), in exchange for the use of the credit extended, agreed to pay CHASE BANK USA NA for all amounts due resulting from the authorized use pursuant to the Agreement.

5. CHASE BANK USA NA fully abided by the terms and conditions as set forth in said Agreement.

6. Defendant(s) has/have not made all payments to CHASE BANK USA NA pursuant to the Agreement.

7. CHASE BANK USA NA sent monthly statements to the Defendant(s).

8. Defendant(s) breached the Agreement by failing to pay the amount owed.

9. As a direct and proximate result of the defendant’s breach of the Agreement, CHASE BANK USA NA has sustained damages in the sum of $6,000.

10. CHASE BANK USA NA has fully performed, pursuant to the terms of the Agreement or its performance has been excused due to Defendant’s breach.

11. CHASE BANK USA NA, and subsequently, Plaintiff, have made demand for payment of the outstanding sum of $6,000, but Defendant(s) has/have failed and refused to pay. Plaintiff seeks interest from May 24,2011, which is the date of demand or subsequent to the date when demand for payment was made.

WHEREFORE, Plaintiff, MIDLAND FUNDING LLC prays for judgment in Count 1 against Defendant(s), in a sum of $6,000 plus interest and for all costs expended herein and for any other and further relief this Court deems just and proper.

COUNT II – MONEY HAD AND RECEIVED

COMES NOW, Plaintiff, and for its alternative cause of action against Defendant(s), states as follows:

1. Plaintiff restates and re-alleges each and every paragraph of Count I as if fully set forth herein.

2. Defendant(s) received and used (or authorized the use of) the credit knowing that CHASE BANK USA NA expected to be repaid for all monies advanced, together with interest thereon. With each use of the credit CHASE BANK USA NA paid money on the defendant’s behalf to the merchant with whom the credit was used. Defendant(s) accepted said funds for the purchase of goods, wares, merchandise or services and has/have been unjustly enriched by failing to repay such sums.

3. Plaintiff is the assignee of the Issuer’s right to be repaid by Defendant(s) for such money had and received, and it is entitled to recover from Defendant(s) the sum of $6,000, that being the balance due through May 24, 2011.

WHEREFORE, Plaintiff, MIDLAND FUNDING LLC prays for judgment in Count II against the Defendant(s) in the sum of $6,000, together with interest as provided by law from May 24, 2011, all costs expended herein and for any other and further relief this Court deems just and proper.

COUNT III – ACCOUNT STATED

COMES NOW, Plaintiff, and for its alternative cause of action against Defendant(s), states as follows:

1. Plaintiff restates and re-alleges each and every paragraph of Counts I and II as if fully set forth herein.

2. Defendant(s) and CHASE BANK USA NA had previous financial transactions related to the Agreement issued to Defendant(s) by CHASE BANK USA NA, at Defendant’s insistence and request.

3. Pursuant to said transactions, CHASE BANK USA NA sent Defendant(s) statements of accounts, to which Defendant(s) did not object.

4. Pursuant to the terms and conditions sent to Defendant(s) in the Agreement, and governing its use, the Defendant(s) made an unconditional promise to pay the amount due with the use of said card.

5. The balance agreed to by parties is $6,000.

6. The Defendant(s) has/have failed to keep his/her promise to pay said balance, despite demand for same having been made.

7. Plaintiff is the assignee of CHASE BANK USA NA to be repaid by Defendant(s) on the account, and it is entitled to recover from Defendant(s) the sum of $6,000, that being the balance due through May 24,2011.

WHEREFORE, Plaintiff, MIDLAND FUNDING LLC prays for judgment in Count III against the Defendant(s) in a sum of $6,000, together with interest as provided by law from May 24, 2011, all costs expended herein and for any other and further relief this Court deems just and proper.

There is also an affidavit from a legal spe******t who says she has access to pertinent records and what looks to be a bill of sale from MCM.

Thank you.

Edited by Simpleaim
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It looks like you have to appear, no written response. This appears to be a type of small claims court, less formal. Just be prepared to argue that they have proven absolutely nothing so far and that you would like to conduct discovery. Their affidavits are garbage, it is some Midland employee swearing that Midland's records are accurate. That has nothing to do with Chase's records, to which they have no access or knowledge.

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This is probably an informal hearing where the judge will decide what has to happen next. He'll ask a few questions and then give you some time to do whatever needs to be done. Just push the fact that Midland has provided no evidence of ownership of the account, therefore they lack standing to sue. Their affidavit is nothing more than their own employees swearing that Midland's unproven claim is true.

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Thank you so much legaleagle! Should I bring anything with me? Cite any court opinions? Particulary the recent MO Supreme Court decision in CACH vs Askew?

Thank you for your help!

You want to blast them at trial with that where they have no oppurtunity to make a fake affidavit.

I used that case in my appeal in California to show at page 8 how they cannot act" as a conduit for the flow of records"

but if this is small claims then you need to gather intel on the judge observe how it goes in other cases next week. this will let you determine whether the court is for or against debtors. Also it will help you gage the preps you need to make.

You need more intel.

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  • 2 weeks later...

Ok so I showed up at court on this and told the attorney I would be contesting this. She asked me if I had an attorney and I told her I would be going pro se. She also asked me if I wanted to go to discovery and I said yes. She set a a continuance date and said I didn't even have to see the judge. I hesitated and inquired whether this was legal and whether the judge would set a default judgement. She assured me no and actually marked out the summons she had on me. The bailiff even stated this was kosher. Now since I didn't file an answer, Missouri just requires an appearance, should I now file my answer and interrogatories and request for documents? My next date is 3/26.

Thanks,

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These cases are made with documents. Forget rogs, there really isn't any use for them unless you have some really weird strategy. Same for admissions, they'll never admit to anything that will make them lose their case. Concentrate on making them prove ownership. Those bills of sale never have an account number or name as a rule, just generic stuff anybody could print out. The affidavit is worthless, Midland employees have no access to Chase's records. Swearing that your own documents are true and correct won't fly.

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Thank you legaleagle. So I should just request documents/media that shows my account numbers, names on the date they were produced in relation to the debt pool sale? I read a deposition somewhere regarding this and coupled with the fact that the Mo SC has said business records must be in the course of regular business at or near the time of events?

Thank you,

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