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Negative Averment


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Here is a MO RCP:

55.13. Averments as to Capacity or Authority of Parties to Sue or be Sued

It shall be sufficient to aver the ultimate fact of the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of a corporation or of an organized association of persons that is made a party. When a person desires to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued or the authority of a party to sue or be sued in a representative capacity, the person shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader's knowledge. When a party so raises such issue, the burden of proof thereon shall be placed upon the opposite party.

I understand the part proving the abiblity to sue but does this mean I have challenge that in a negative averment? And If I raise the issue is it their burden to prove? I'm not even sure if I know how to ask this in a negative averment.

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MIDWESTERN HEALTH MANAGEMENT v. Walker, 208 SW 3d 295 - Mo: Court of Appeals, Western Dist. 2006

"Midwestern, however, confuses the issue of capacity to sue, which is waived unless timely asserted, with standing to sue. Capacity to sue refers to a party's right to avail itself access to the courts because it is without any general disability. Gardner v. Blahnik, 832 S.W.2d 919, 923 (Mo.App. W.D.1992), overruled on other grounds by KMS, Inc. v. Wilson, 857 S.W.2d 525, 529 (Mo.App. W.D.1993). Standing to sue, on the other hand, exists when a party has an interest in the subject matter of the suit that gives it a right to recovery, if validated. Id. The issue of standing cannot be waived. Id."

MIDWESTERN HEALTH MANAGEMENT v. Walker - Google Scholar

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I hope I don't sound like a dope but what does this exactly mean? The JDB may have a capacity but not standing? Is that what this rules refers to?

Thank you,

I believe the rule refers to capacity to sue. Standing means they have sustained an injury and have a right to sue for that injury. The injury they're claiming is a loss of money that was owed.

When a JDB purchases an account, they have obtained the same rights as the creditor. That's why they can charge interest and fees AND sue for the balance. If they can't prove they purchased your specific account from the OC, then they haven't proven they own the account. If they can't prove they own the account, then they haven't proven they've sustained an injury. Therefore, they have no standing to sue.

Read the case law I provided. It may help you understand a little better.

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I hope I don't sound like a dope but what does this exactly mean? The JDB may have a capacity but not standing? Is that what this rules refers to?

Thank you,

I believe the rule refers to capacity to sue. Standing means they have sustained an injury and have a right to sue for that injury. The injury they're claiming is a loss of money that was owed.

When a JDB purchases an account, they have obtained the same rights as the creditor. That's why they can charge interest and fees AND sue for the balance. If they can't prove they purchased your specific account from the OC, then they haven't proven they own the account. If they can't prove they own the account, then they haven't proven they've sustained an injury. Therefore, they have no standing to sue.

That being said, if you want to claim lack of standing as an affirmative defense, you can. It just puts the burden of proof on you to show they don't have standing. But, actually, that's not hard to do in a JDB case. It's very rare that a JDB has the documentation necessary to prove they own an account.

Read the case law I provided. It may help you understand a little better.

In addition, here's another case from the MO Supreme Court:

"Reviewing the record without consideration of Exhibit 7, this Court finds that CACH failed to demonstrate that it had standing to pursue the collection of the money allegedly owed on Askew's credit card account."

Askew v. Cach - Google Scholar

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BV80 - Thank you for your help. I did read the entire opinion and it is becoming clear to me. I think I understand now that I don't need to assert the standing to sue since I'm not challenging their capaicity since standing is the really the only way to win. I just didn't want to miss out on on any legal aspects and lose my rights to challenge.

Thank you,

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It can all be very confusing. That's why I like to look up case law. It can help one to understand the rules a little better.

If the JDB doesn't dismiss, you'll bring up the issue of standing at some point...if they file for summary judgment, for instance. You'd need to bring it up to have it on the record just in case they were to get a judgment against you, and you decide to appeal. The issue of standing cannot be brought up for the first time in an appeal. It must be brought up before that time.

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