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Does complaint fail to state cause?


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I received a summons and complaint, with Midland Funding as the plaintiff. Am I right in reading the complaint that the plaintiff has failed to properly state a cause of action? Below is the complaint. I'm in Wash. state.

Comes now the plaintiff for cause of action against defendants and complains and alleges as follows:

I

Plaintiff is a legal entity having paid all licenses and fees if required by law and is authorized to bring this action.

II

The defendant is believed to be a married individual and as such incurred the below-referenced separate and community obligation. Defendant resides in XXX County, State.

III

That at all times material, defendant has been the obligor of a certain credit account bearing number (only has last four of an account number) which as been assigned to plaintiff.

IV

By the use of said credit account, defendant became indebted on said account for goods, services, and monies loaned in the stated amount, the unpaid balance XXXXX which is fully due and owing to plaintiff, together with such greater sum as may be proved at the time of trial, together with interest thereon at the highest legal rate.

V.

Plaintiff may be entitled to attorney’s fees either by contract or statue. Plaintiff requests an award of attorney’s fees, as determined by the court.

We are debt collectors, this is an attempt to collect a debt and any information obtained will be used for that purpose.

WHEREFORE, plaintiff prays for judgment against defendant for the sum of XXXX, together with interest thereon at the highest legal rate, and any further sum which may be proven at the time of trial, and a reasonable sum as and for plaintiff’s attorney’s fees; that such judgment shall bear interest at the highest legal rate after entry; and that the plaintiff have and receive such other and further relief as in the premises shall appear just and equitable.

Thanks for any feedback.

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Anyone else believe that the complaint I typed up in the first post shows the lack of a stated cause of action? I already working on my answer and want to make sure I get that part right.

Also, there was nothing attached to the complaint. I simply received the summons and the complaint. They don't even name the original creditor.

Pickles

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I don't know much, but it dosen't state a lot what they filed. Check all the affirmative defenses on the sticky posts, and start figuring out what applies to you. Check if in your court rules is requiresd to file the apropiate papers, etc. Some of those defenses are very legly in terms, just google what you don't understand and read the definition, many of those are old english legal terms.

Also check your court rules, you might be able to file a motion to dismiss and don't even have to go to court.

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They state who they are (Scumbag Midland)

They state who you are.

They state they believe your married and incurred a certain debt.

They claim an account (provide the last fourt digits) and state it has been assigned to them.

They state you used the account, incurred charges, and now those charges are due and have not been paid.

They state those unpaid charges are due the Plaintiff.

Then they wrap it all up at the end with a request for a certain sum and then the court to determine reasonable atty fees and anything else the court determines.

Midland is fully of garbage and can rarely prove their claims but they have fully stated their claims. What are you basing your belief they don't state a cause of action.

I mean they did not specifically state you used the card for househould purchases and they made a demand for payment and you refused payment.

However, the big question is what would you gain if you got them on a techniciality like that. The judge will just give them 10 days or so to amend. I 100% so no fatal errors with their complaint.

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Midland is fully of garbage and can rarely prove their claims but they have fully stated their claims. What are you basing your belief they don't state a cause of action.

Thanks for answering. I thought they had to state specifically something like "breach of contract" or "account stated."

Not trying to base my answer on just that, but wanted to see if "failed to state a claim" was an option in my answer.

So, I guess I need to answer in terms of me not having a credit account with Midland, not having entered into any sort of contract or agreement with them, etc. I'll craft my answers and then post here to get a review. I appreciate your input.

Pickles

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No problem but they are alleging they were assigned the account, so arguing no contract with Midland is not going to work. They are admitting you had no contract with Midland.

They are aruging they have the account by valid assignment. That is what you attack and make them prove.

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and common counts. Wow this may be easier to defend.

I'm kind of leaning in that direction too. I was up in the air about whether to let this go through the courts and try to defeat them there, or throw out the arbitration card.

Other than attacking valid assignment, what other areas of defense do you think I should consider?

Pickles

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No problem but they are alleging they were assigned the account, so arguing no contract with Midland is not going to work. They are admitting you had no contract with Midland.

They are aruging they have the account by valid assignment. That is what you attack and make them prove.

Okay, I get it now. So, I'll go after their claim of assignment. Shouldn't there be more than that? You would think that if their claim is based on assignment, that would at least attach a bill of sale or some sort of affidavit (even a bogus one). They don't even state who is the OC they got the assignment from.

Pickles

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All these new complaints do this. They do not name a specific cause of action. This one doesn't either, although it flirts with the elements of account stated. I would ask for a more definite statement, maybe you can get them to do something stupid. The motion would have to be properly worded. Don't say you can't make heads or tails of it, that won't work. A complaint is supposed to put the defendant on notice as to what the plaintiff intends to prove. This one does that. What it does NOT do is name a specific cause of action connected to collections and / or contract actions. You want them to say what they are using, as each cause of action requires a specific defense. It is prejudicial to any defendant to have to engage in a guessing game.

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Blacks Law dictionary

Cause of Action: The fact or combination of facts that gives a person the right to seek judicial redress or relief against another. Also, the legal theory forming the basis of a lawsuit.

The cause of action is the very soul of the complaint, which is the Pleading that initiates a lawsuit. Without an adequately stated cause of action the plaintiff's case can be dismissed at the outset. It is not sufficient merely to state that certain events occurred that entitle the plaintiff to relief. All the elements of each cause of action must be detailed in the complaint. The claims must be supported by the facts, the law, and a conclusion that flows from the application of the law to those facts.

It is time for me to go bowling so if you need more on cause of action let me know. I have tons of law books from school and they all in some way talk about cause of action.

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Guest usctrojanalum

Not trying to base my answer on just that, but wanted to see if "failed to state a claim" was an option in my answer.

It's typically not an option in any answer. I have never once seen a case be dismissed on the grounds of failing to state a claim. Maybe if you get into the area of someone being a vexatious litigant you might see it, but those cases are rare.

Also, don't get too caught up on your answers and affirmative defenses. They honestly do not mean much in the whole scheme of things. These cases are never won or lost on the initial pleadings alone.

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Here is what will happen, it goes this way every time I have ever seen it in court.

You claim failure to state a claim and they will ask for a leave from court to amend their complaint and the judge will give them 30 days.

What you really need to base your case on is making them prove they own the debt first. If they can't prove ownership then they FAIL TO STATE A CLAIM.

There are several of us here that walk you through what it takes to disprove their ownership, actually the burden of proof is on them to prove they do own the debt.

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It is time for me to go bowling

I should get back into this. My uncle (Marine Iwo Jima survivor with an arm full of shrapnel) and I had a league team in the 80's, and we came in the top 3 for 4 years. I used to bowl 20 practice games a day, I had a pro shop owner who coached me, he had his PBA card. My practice average was 220. I just never had the time to maintain the 195 average in 2 leagues to get my card due to work and college scheduling. Have a trophy for a 298, had several "300" games in practice, although most of them were between two games. You know, the last seven strikes of one game and the first 5 of the next. Made the 7-10, 4-6-7-10, all of them. Lots of fun.

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  • 2 weeks later...

Can I get some input on my draft answer? I hope to send off no later than Monday. Here's the original complaint:

Comes now the plaintiff for cause of action against defendants and complains and alleges as follows:

I

Plaintiff is a legal entity having paid all licenses and fees if required by law and is authorized to bring this action.

II

The defendant is believed to be a married individual and as such incurred the below-referenced separate and community obligation. Defendant resides in XXX County, State.

III

That at all times material, defendant has been the obligor of a certain credit account bearing number (only has last four of an account number) which as been assigned to plaintiff.

IV

By the use of said credit account, defendant became indebted on said account for goods, services, and monies loaned in the stated amount, the unpaid balance XXXXX which is fully due and owing to plaintiff, together with such greater sum as may be proved at the time of trial, together with interest thereon at the highest legal rate.

V.

Plaintiff may be entitled to attorney’s fees either by contract or statue. Plaintiff requests an award of attorney’s fees, as determined by the court.

We are debt collectors, this is an attempt to collect a debt and any information obtained will be used for that purpose.

WHEREFORE, plaintiff prays for judgment against defendant for the sum of XXXX, together with interest thereon at the highest legal rate, and any further sum which may be proven at the time of trial, and a reasonable sum as and for plaintiff’s attorney’s fees; that such judgment shall bear interest at the highest legal rate after entry; and that the plaintiff have and receive such other and further relief as in the premises shall appear just and equitable.

Here is my draft answer:

I. By way of answer to paragraph I of Plaintiff’s Complaint, Defendant is without sufficient information to admit or deny, and therefore denies same.

II. By way of answer to paragraph II of Plaintiff’s Complaint, Defendant admits to being a married individual who resides in XXXX County, Washington, but denies the remainder of the allegations therein.

III. By way of answer to paragraph III of Plaintiff’s Complaint, Defendant is without sufficient information to admit or deny, and therefore denies same.

IV. By way of answer to paragraph IV of Plaintiff’s Complaint, Defendant is without sufficient information to admit or deny, and therefore denies same.

V. By way of answer to paragraph V of Plaintiff’s Complaint, Defendant is without sufficient information to admit or deny, and therefore denies same.

Affirmative DEFENSES

By way of further answer, Defendant alleges the following affirmative defenses:

1. Lack of Legal Standing. Plaintiff has not proven they are real party in interest. A purported assignee of a credit card account must show by competent evidence the existence of the account, the charges and payments under the account that resulted in the account balance claimed by the assignee, and a valid assignment. No proof of assignment was attached to the Complaint.

2. Unjust enrichment. Plaintiff has failed to provide payment and charge summary to verify the amount of damages requested or even the existence of alledge debt.

3. Lack of Privity. Plaintiff has not produced a copy of any proof of agreement establishing an obligation by the defendant to the Plaintiff.

4. Unclean Hands. Plaintiff has engaged in muliple debt collection law suits employing false affidadaits and unsupported claims.

Defendant intends to rely upon such other and further defenses as may become available during discovery, and hereby reserves her right to amend the Answer and assert such defenses

PRAYER FOR RELIEF

WHEREFORE, having fully answered Plaintiff’s Complaint and have plead affirmative defenses, Defendant prays for relief as follows:

1.That Plaintiff’s claims and causes of action be dimissed with prejuidice;

2. That the Court awards such other and further relief as it deems just and equitable in the premises.

I included the affirmative defenses because I read in the Washington court rules that you should include them and that by not doing so, you may waive them. THanks.

Pickles

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Unjust enrichment. A general equitable principle that a person should not profit at another's expense and therefore should make restitution for the reasonable value of any property, services, or other benefits that have been unfairly received and retained.

You will have to prove this. How have they been unjustly enriched at your expense? Where is the case law you will use?

Lack of Privity. A legally recognized relationship of interest of two parties, be it in a transaction, a piece of property, or a proceeding.

Not to hard to prove but how will you go about it and what case law do you have?

Unclean Hands. a legal doctrine which is a defense to a complaint, which states that a party who is asking for a judgment cannot have the help of the court if he/she has done anything unethical in relation to the subject of the lawsuit.

Very hard to prove and use in collections suits. How are their past law suits and actions affected the case you are involved in? Notice the bold type you have to prove that their actions are in direct relation to the subject of the suit. How will you do this?

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The problem with unjust enrichment is that it usually refers to money they already got from you. This is called an unjust benefit at your expense and retained unjustly by them. It doesn't refer to an "if they collect" scenario. They are legally entitled to collect if they can prove standing. The only way UE would come into play is if they added on a bunch of invalid costs or interest. They haven't been enriched at all, they never got a dime from you. Hopefully they never will.

Unclean hands as you word it will not fly, prior acts are inadmissible. You'd have to prove that they committed fraud or some other blatantly illegal act against you.

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I know I'm a newbie and I'm not sure what the rules of procedure are in Washington, but why are you wanting to volunteer information to them about what method you are going to use to kick their asses? I'd just remove the entire "Affirmative DEFENSES" section and let them figure out on their own (preferably not until the trial) exactly how you intend to defend yourself. Telling them now just gives them an advantage...

On top of that, most of your defenses will be hard to prove. Keep it simple & keep them guessing!

I actually have experience with Midland Funding. In my case, they dismissed as soon as I pushed back. :wink:

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2JDC is wholly incorrect. In most states if you don't put affirmative defenses on your answer you will lose the ability to assert them later.

I know I'm a newbie and I'm not sure what the rules of procedure are in Washington' date=' but why are you wanting to volunteer information to them about what method you are going to use to kick their asses? I'd just remove the entire "Affirmative DEFENSES" section and let them figure out on their own (preferably not until the trial) exactly how you intend to defend yourself. Telling them now just gives them an advantage...

On top of that, most of your defenses will be hard to prove. Keep it simple & keep them guessing!

I actually have experience with Midland Funding. In my case, they dismissed as soon as I pushed back. :wink:[/quote']

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2JDC is wholly incorrect. In most states if you don't put affirmative defenses on your answer you will lose the ability to assert them later.

This is true in Washington. The RCP states that you must include affirmative defenses, or you may waive them. So in the end, I included just two affirmative defenses and the usual statement about reserving the right to assert other defenses based on results of discovery (should we get to that point).

I mailed off my answer and certificate of service the other day, so we'll see what happens from here.

Pickles

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2JDC is wholly incorrect. In most states if you don't put affirmative defenses on your answer you will lose the ability to assert them later.

I have to disagree with this tactic. The only defenses that have a chance in a credit card case are lack of standing and the SOL. Anything else is a waste of time. Posters here routinely assert 20 defenses that are laughable. There is no sense in "preserving" junk that won't work and will just be thrown out by objection. It's all about strategy, 2JDC has a good grasp of this. Don't tip your hand. Surprise them in court. They think everybody is stupid.

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  • 11 months later...

Update - sort of

 

Just a short update.  It's been just about one year since I received this summons and provided my answer.  Not a peep since then.  They have not filed it with the courts, nor have they reached out to me (as far as I know).  Was wondering if the class action suit in Ohio, which was recently kicked back from the supreme court to district court, has anything to do with it?  Wondering if that nationwide class action suit involving robosigning has paused some of Midland's actions, ones where they've been challenged to prove standing.

 

Pickles

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Do complaints have to be filed in your state in order for a lawsuit to commence?  Or does the lawsuit begin when the defendant is served?

 

If a case begins when the defendant is served, a plaintiff only has a certain amount of time to file with the court after service of the complaint.  If a lawsuit begins with the filing, then, in your case, there's no lawsuit.

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Do complaints have to be filed in your state in order for a lawsuit to commence?  Or does the lawsuit begin when the defendant is served?

 

If a case begins when the defendant is served, a plaintiff only has a certain amount of time to file with the court after service of the complaint.  If a lawsuit begins with the filing, then, in your case, there's no lawsuit.

 

Except as provided in rule 4.1, a civil action is commenced by service of a copy of a summons together with a copy of a complaint, as provided in rule 4 or by filing a complaint. Upon written demand by any other party, the plaintiff instituting the action shall pay the filing fee and file the summons and complaint within 14 days after service of the demand or the service shall be void. An action shall not be  deemed commenced for the purpose of tolling any statute of limitations except as provided in RCW 4.16.170.                          

 

Pickles

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