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Sued by OC - MTD's denied and MSJ imminent


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I was sued by an OC in Cook County, Illinois. The case is in small claims court. The complaint:

1. The Defendant(s) utilized a charge account and/or line of credit issued by Plaintiff or its assignors whereby Defendant(s) could charge goods and service to their account and/or received cash advances.

2. The Defendant(s) subsequently defaulted by failing to pay for the indebtedness incurred resulting in the balance due Plaintiff of $____.

3. Due demand has been made on Defendant(s) to pay this amount and the Defendant(s) have failed to do so.

Wherefore, Plaintiff prays for judgement against Defendant(s) in the amount of $____ plus court costs.

The complaint had a cover sheet that listed the action as Breach of Contract. There was no contract attached to the complaint as is required for written contracts in Illinois. I used that as an affirmative defense in my answer

5. The Complaint fails to comply with Section 2-606 of the Code of Civil Procedure in that it fails to attach the contract, or, in the alternative, fails to include the affidavit required by that provision of law under certain circumstances (735 ILCS 5/2-606)

6. The failure to comply with Section 2-606 renders the Complaint insufficient as a matter of law.

Because this is small claims court, I need leave of court to file almost any motion. I asked for leave of court and the judge denied it. He stated that credit card agreements nowadays are oral agreements, not written ones, and hence 735 ILCS 5/2-606 does not apply since it only concerns written contracts. He pretty much said that I shouldn't even bother to try to have the case dismissed on those grounds because my arguments would go nowhere.

I was also denied leave to file a motion to compel arbitration because the OC's agreement doesn't allow arbitration for small claims court.

The judge set a status date for two months in the future. Before the judge set the case on status call, he asked me if what I wanted was to see statements or other proof of the amounts of the debt and I said that I did. I assumed that I would have time to file discovery requests, and that I could take time to make sure things are done right.

One week later, I found out online that the attorney filed a motion with the court and a hearing date has been scheduled. I haven't received a copy of the motion yet but it's obviously an MSJ. The hearing will be in a couple of weeks.

Is there any way to get the MSJ denied at this point? Could I reasonably argue that it should be denied because the OC's attorney is trying to force a SJ contrary to the judge's apparent intention to give us a couple months to work this out?

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I received the motion in the mail. It's not a MSJ, it's a motion to strike my affirmative defense. My affirmative defenses were:

4. Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fail to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.

5. The Complaint fails to comply with Section 2-606 of the Code of Civil Procedure in that it fails to attach the contract, or, in the alternative, fails to include the affidavit required by that provision of law under certain circumstances (735 ILCS 5/2-606)

6. The failure to comply with Section 2-606 renders the Complaint insufficient as a matter of law.

7. Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

The motion says that these are not affirmative defenses but instead alleged pleading defects, and that the alleged pleading defects were waived by my having filed an answer:

"The failure to attach a copy of a written contract as required by section 2-606 is a mere pleading deficiency." Cain v. Cross, 293 Ill. App. 3d 255, 258 (Dist. 1997). Also Darst v. Lang and Swift & Co. v. Dollahan.

It goes on to say that since a pleading defect is not an affirmative defense and I waived my the right to challenge the pleading's sufficiency by filing an answer, my defenses must be stricken.

Anyone have suggestions as to what would be the best course of action for me to take at this point?

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