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HELP Please! Filing Answer..


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I need help filing my answer. I'd like for it to be very clear and to the point, and I want to be sure each count is answered correctly, (so I don't end up screwing myself over). ANY help would be appreciated. Here is the complaint:

The Plaintiff, ***, complains against Defendant and says:

1. Plaintiff is the owner of this account, originally opened as a *** account, which is the subject matter of this action.

2. The Defendant(s) is/are indebted to Plaintiff on account stated, by virtue of charges incurred by the Defendant on a credit card, or line of credit, owned by Plaintiff.

3. The Defendant(s) has/have failed to pay said sum upon demand.

4. The Defendant(s) is/are indebted to Plaintiff in the amount of $****.

5. The Defendant(s) received a monetary benefit, which was in fact, appreciated by the Defendant(s).

6. The Defendant(s) accepted the benefits.

7. That by virtue of the circumstances surrounding the request for funds made, the Defendant(s) knowingly requested the funds in issue and/or knowingly and voluntarily accepted the benefits bestowed.

8. It would be inequitable for this Court to allow the Defendant(s) to retain the benefits of the funds or to be unjustly enriched at the expense of the Plaintiff or allow the Defendant(s) to retain the value of the funds in issue without re-paying the Plaintiff the value of same.

I certify that confidential personal identifiers have been redacted from documents now submitted to the court, and will be redacted from all documents submitted in the future in accordance with Rule 1:38-7(B).

Wherefore, Plaintiff prays that Defendant(s) be cited to appear and to answer this Complaint, and that Judgement be rendered in favor of the Plaintiff, *** and against the Defendant(s), in the amount of $**** and any other relief as this Court deems reasonable and just.

Also, please let me know any other thoughts/suggestions you may have. Should I also send the Plaintiff Interrogatories when I file my answer? How does that work? What do you think would be the best step-by-step approach in this? Thanks!!

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We need some more information. I assume this is a JDB who has purchased the account? What evidence or documents did they include with the summons and complaint?

Sorry. Yes, a JDB purchased an old charged off account. They didn't attach any evidence or documents at all with the complaint. The only thing they listed was the amount I allegedly owe. There are no account numbers on it either. I believe the last payment on the account was in 06 or 07 before it went into collections.

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Here's my suggestions:

Defendant responds to all of Plaintiff's allegations (1-8) by stating that Defendant has insufficient information to admit or deny and, therefore, must deny. Since no account number or documentation was included with the Complaint, no information or evidence has been provided to support the allegations.

Did they provide the name of the OC?

Check out this attorney's site. He's from NJ and defends debtors from JDBs. He has valuable information. Also, carefully read your court's Rules of Civil Procedure regarding answering the complaint and the discovery process.

Philip D. Stern & Associates, LLC

Index of /files

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06 or 07? You have to have an accurate date, which established the statute of limitations. Who is the OC? This also establishes the SOL. There is a form for answering complaints in NJ. See the link. Also, is this superior or special civil? Different sets of rules for each.

http://www.judiciary.state.nj.us/prose/10554_ans_cmplt.pdf

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Sorry for the delay in posting. My husband was involved in a head-on collision (he's ok), and the car was totaled. *Sigh* It's been a rough few days.

Anyway, back to the JDB bs. Thanks for your responses. My thoughts were the same as BV80, but I wanted to hear it from someone else as confirmation.

Legaleagle - It says "Superior Court of NJ Law Division- **County, Special Civil Part, on the complaint. I checked my CR and the last payment made was in 07' and the OC was Bank of America. I plan to deny everything, but I need help with the lingo when answering the complaint. So if BV's response is sufficient, I will just answer with that. Otherwise, I need help answering each one of those counts. I just don't want to say anything I shouldn't. I'm trying to mail this out tomorrow, (CMRR of course), before time runs out.

Also, do any of you know if I can send discovery along with my answer? Or do I have to send it after, and would it need to be filed with the court? How do I go about doing that? I'd rather go after them for proof, then have them send me ROGS when they haven't validated the ownership or proof that I owe the debt. Thanks again!

Edited by secretagent007
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I got no experience in this but with no prrof that you owe them money you just got to deny everything as said, and pick the affirmative defenses that apply including SOL if it's the case. Also BoA contract is under Delaware laws, and it might be that you can use that in NJ, got no clue, but I do know I can use it in Florida, and SOL in Delaware is 3 years.

If they got no proof, is gonna be dismiss, you just go deny everything and ask for proofs. On top of that you can claim SOL.

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FIA Card Services, or BofA, is in Delaware with a 3 year SOL. I think THEY are SOL with this one, if you get my drift. Forget about Yakov Smirnoff above, he's right, he doesn't have a clue. America! What a country. You are in Special Civil, which has a few restrictions concerning discovery, as you can only ask five questions. I wouldn't bother, I would file a straight motion to dismiss based on the expired SOL. See your rules here:

New Jersey Special Civil Part Court Rules

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FIA Card Services, or BofA, is in Delaware with a 3 year SOL. I think THEY are SOL with this one, if you get my drift. Forget about Yakov Smirnoff above, he's right, he doesn't have a clue. America! What a country. You are in Special Civil, which has a few restrictions concerning discovery, as you can only ask five questions. I wouldn't bother, I would file a straight motion to dismiss based on the expired SOL. See your rules here:

Great info, thanks!

Legaleagle - I was thinking I could do that, but can I file a Motion to Dismiss in lieu of filing an Answer to the Complaint? If so, is there a form I can fill out or will I need to format the Motion on my own? I've never done this before, so I will need you to give me an example of the actual Motion to Dismiss. Sorry, I'm such a newbie..but I really appreciate your help!

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Also, I wasn't aware that because BofA's location is in DE, I could use DE's 3 year SOL as opposed to NJ's 6 year SOL. Or is that only if the JDB can't produce the original contract? I'm a little confused about that. And if I do list the SOL as an Affirmative Defense, would I need to produce documents to prove that? If so, wouldn't I be admitting I owe the debt? I'm obviously trying to avoid that route. Deny, deny, deny, sounds more like music to my ears! lol

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You could just downlaod the BoA credit card holder agreement, and put it as an exhibit, and state that is an adhesion contract and as such is true for all card holders.

Also, in your writing always mention the contract as alleged contract, you don't want to admit you got one.

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All credit cards have a cardholder agreement. They specify a choice of law, which will be DE in this case. If they try to impose NJ SOL, fight it. They insisted on DE law, you agreed, now they want to back away for their own purposes. Okay, let's see if they want to back away from DE Chaper 23 interest law, which lets them charge anything they want. Bet they'd love that one. Here's the package, most of NJ procedure is forms.

http://www.judiciary.state.nj.us/prose/10915.pdf

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All credit cards have a cardholder agreement. They specify a choice of law, which will be DE in this case. If they try to impose NJ SOL, fight it. They insisted on DE law, you agreed, now they want to back away for their own purposes. Okay, let's see if they want to back away from DE Chaper 23 interest law, which lets them charge anything they want. Bet they'd love that one. Here's the package, most of NJ procedure is forms.

If I fight it using SOL as my defense, wouldn't that be admitting I owe the debt? I thought it was better to flat out deny everything. Sorry if my questions are sounding repetitive. I just don't want to end up screwing myself over.

Also, on the Motion to Dismiss form, there are two options to check off: Motion to Strike the Answer for Failure to Answer Interrogatories and Motion to Dismiss Complaint for Failure to Answer Interrogatories. Obviously, Interrogatories weren't sent on either behalf as of yet, so that wouldn't apply. Should I still be using this form?

Any suggestions/examples of what I should say in the Motion to Dismiss or Answer, would be very much appreciated. I'm stuck on this and I have about another week left before the deadline. Thanks everyone, (especially you legaleagle)!

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Just file a motion to dismiss based on being barred from SOL, let them prove it's not barred from SOL why would you prove it?

Statute of Limitations on Debts

In Capital One Bank v. Creed, 220 S.W.3d 874 (S.D. Mo.2000), the company alleged the parties entered into a contract, whereby the company would extend credit to the customer. The company alleged that the customer breached the terms of her contract by failing to pay the amounts for which credit was extended.

The customer denied the allegations and asserted the affirmative defense that the action was barred by the statute of limitations. The appellate court ruled that the action was barred by the five year statute of limitations under Mo. Rev. Stat. § 516.120 (2000).

The customer made a partial payment on December 2, 1999, and the company's petition was not filed until January 3, 2005.

The ten year statute of limitations under Mo. Rev. Stat. § 516.110 was not applicable because the company did not produce a written promise by the customer to pay money.

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http://www.judiciary.state.nj.us/prose/10915.pdf

You should have three forms A B C to mail to both the plaintiff and courts, the pdf explains how to fill it out.

DO NOT DELAY IN GETTING THIS OUT OTHERWISE THE SOL IS MOOT !

You must mail the paperwork to all other parties in the case by certified mail, return receipt requested, and regular mail. You will receive a green receipt card, which can serve as

proof that you mailed the motion to the other

party.

Don't worry about an ORAL argument right now.

ON FORM B...!

In the blank spaces, give the reasons why you think your motion should be granted.

example:

Account has exceeded the time from statute of limitations which is X years.

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You should have three forms A B C to mail to both the plaintiff and courts, the pdf explains how to fill it out.

DO NOT DELAY IN GETTING THIS OUT OTHERWISE THE SOL IS MOOT !

You must mail the paperwork to all other parties in the case by certified mail, return receipt requested, and regular mail. You will receive a green receipt card, which can serve as

proof that you mailed the motion to the other

party.

Don't worry about an ORAL argument right now.

ON FORM B...!

In the blank spaces, give the reasons why you think your motion should be granted.

example:

Account has exceeded the time from statute of limitations which is X years.

Thank you so much! I will cite the case you posted here. So, I don't need to attach any document showing it's past the SOL, (example: credit report showing last payment made and/or cardholder agreement stating DE as chosen state law)? I came across another thread regarding Motion to Dismiss, and someone suggested the poster provide exhibits of both. I have both, but I would hate to drag that into the picture. If I could keep it as simple as possible, that would be great.

Also, would my motion to dismiss act as my answer to the complaint? I have about 3 days left to get this out, so I need to know. Please advise, and thanks so much for all of your help!

Edited by secretagent007
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If at any point you admit that you owe the debt then they do not have to do anything more on there side.

If you deny all claims they have to prove there case.

When I filed against my papers I never did an answer except

Defendant denies all claims.

Defendant denies being indebted to plaintiff.

etc..

If you provide last payment you would be providing proof that you owe the said debt SOL or NOT.

If you say SOL & deny claims they will have to fight it and make there case.

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If at any point you admit that you owe the debt then they do not have to do anything more on there side.

If you deny all claims they have to prove there case.

When I filed against my papers I never did an answer except

Defendant denies all claims.

Defendant denies being indebted to plaintiff.

etc..

If you provide last payment you would be providing proof that you owe the said debt SOL or NOT.

If you say SOL & deny claims they will have to fight it and make there case.

Gotcha. I'm filling out all 3 forms now and I wrote in the space provided for "other":

"Defendant denies all claims.

Defendant denies being indebted to plaintiff.

Defendant asserts that the alleged account is time-barred by the three year statute of limitations under Delaware CHAPTER 81 Title 8106. See also Capital One Bank v. Creed, 220 S.W.3d 847 (S.D. Mo.2000)."

Is this enough?

Edited by secretagent007
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Stating case law and everything...look at you mr fancy pancy.

Looks good I love the "alleged" !

Haha, I am such a newbie! Glad you give it the approval :)

I'm going to leave it at that and mail out all copies. I just want to get this thing out already. Hopefully, I get the response I'm looking for. I just want this to be done.

Was your case dismissed?

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Haha, I am such a newbie! Glad you give it the approval :)

I'm going to leave it at that and mail out all copies. I just want to get this thing out already. Hopefully, I get the response I'm looking for. I just want this to be done.

Was your case dismissed?

No but I pissed off the lawyer and he settled from 9K to 800 bucks. They had proof and it had no SOL.

You can still though make there life suck proof or no proof.

Mine was a 4-5 month process it sucks but be patient and ride it through you can really win if your patient and slow down.

They want you to be stressed.

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