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Answers to Complaint in PA


kvh
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I recently received a complaint from a debt buyer and I want to do this on my own. I attached the complaint and my answers and I wanted to make sure you guys think it looks good or if there is anything I should change. This is the first time I have done this and I have already learned a bunch from reading the forums. TIA.

Ken

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Edited by kvh
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Are you sure that you answer like that or would you file preliminary objections?

It seems that for some members in Pennsylvania (maybe depending on their court?) that if they don't answer with the answer/defenses, but file preliminary objections that they get to find things wrong with the plaintiff's case, one by one.

They might first object to something and then the Judge gives them so many days to correct it. That is strike one.

Then the defendant files another preliminary objection to which the plaintiff is again allowed so many days. That is strike two.

If you do this three times, the plaintiff's case is out "with" prejudice!

You can read more here - http://www.creditinfocenter.com/forums/there-lawyer-house/297260-account-stated-pa.html#post1024111

**But, make sure this would apply to your court's rules.

I know in your state they need to attach the actual assignment, chain of custody and contracts to the original summons. Did they do all of that?

Also, I had posted some links in this thread http://www.creditinfocenter.com/forums/arbitration/312627-pa-cap-one.html

Check them all out as I think some of what is in there would apply to your case.

Also, Cavalry is known to sue without having proper documentation. They'll usually supply an affidavit from an employee of theirs which is hearsay if you attack it properly. They often won't have a complete chain of custody (bill or bills of sale) from the OC to Cavalry. Do you know if Cavalry bought it straight from the OC or was it from another JDB who had bought it from Cavalry? Each one has to have a bill of sale.

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They hint at an agreement in paragraph 3, but did not attach one. They also do not state a specific cause of action such as account stated or breach of contract.

Rule 1019. Contents of Pleadings. General and Specific Averments.

(a) The material facts on which a cause of action or defense is based shall be stated in a concise and summary form.

(B) Averments of fraud or mistake shall be averred with particularity. Malice, intent, knowledge, and other conditions of mind may be averred generally.

© In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of such performance or occurrence shall be made specifically and with particularity.

(d) In pleading an official document or official act, it is sufficient to identify it by reference and aver that the document was issued or the act done in compliance with law.

(e) In pleading a judgment, order or decision of a domestic or foreign court, judicial or administrative tribunal, or board, commission or officer, it is sufficient to aver the judgment, order or decision without setting forth matter showing jurisdiction to render it.

(f) Averments of time, place and items of special damage shall be specifically stated.

(g) Any part of a pleading may be incorporated by reference in another part of the same pleading or in another pleading in the same action. A party may incorporate by reference any matter of record in any State or Federal court of record whose records are within the county in which the action is pending, or any matter which is recorded or transcribed verbatim in the office of the prothonotary, clerk of any court of record, recorder of deeds or register of wills of such county.

(h) When any claim or defense is based upon an agreement, the pleading shall state specifically if the agreement is oral or written.

Official Note:

If the agreement is in writing, it must be attached to the pleading. See subdivisioni (i) of this rule.

(i) When any claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof, but if the writing or copy is not accessible to the pleader, it is sufficient so to state, together with the reason, and to set forth the substance of the writing.

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Rule 1028. Preliminary Objections. (a)

Preliminary objections may be filed by any party to any pleading and are limited to the following grounds:

(1) lack of jurisdiction over the subject matter of the action or the person of the defendant, improper venue or improper form or service of a writ of summons or a complaint:

Official Note

Of the three grounds available to challenge venue, only improper venue may be raised by preliminary objection as provided by Rule 1006(e). Forum non conveniens and inability to hold a fair and impartial trial are raised by petition as provided by Rule 1006(d)(1) and (2).

See Rule of Appellate Procedure 311(B) for interlocutory appeals as of right from orders sustaining jurisdiction and venue.

(2) failure of a pleading to conform to law or rule of court or inclusion of scandalous or impertinent matter;

(3) insufficient specificity in a pleading;

(4) legal insufficiency of a pleading (demurrer);

Official Note

The defense of the bar of a statute of frauds or statute of limitations can be asserted only in a responsive pleading as new matter under Rule 1030.

(5) lack of capacity to sue, nonjoinder of a necessary party or misjoinder of a cause of action;

(6) pendency of a prior action or agreement for alternative dispute resolution;

Official Note

An agreement to arbitrate may be asserted by preliminary objection or by petition to compel arbitration pursuant to the Uniform Arbitration Act, 42 Pa.C.S. § 7304, or the common law, 42 Pa.C.S. § 7342(a).

(7) failure to exercise or exhaust a statutory remedy, and

(8) full, complete and adequate non-statutory remedy at law.

(B) All preliminary objections shall be raised at one time. They shall state specifically the grounds relied upon and may be inconsistent. Two or more preliminary objections may be raised in one pleading.

©(1) A party may file an amended pleading as of course within twenty days after service of a copy of preliminary objections. If a party has filed an amended pleading as of course, the preliminary objections to the original pleading shall be deemed moot.

(2) The court shall determine promptly all preliminary objections. If an issue of fact is raised, the court shall consider evidence by depositions or otherwise.

Official Note

Preliminary objections raising an issue under subdivision (a)(1), (5), (6), (7) or (8) cannot be determined from facts of record. In such a case, the preliminary objections must be endorsed with a notice to plead or no response will be required under Rule 1029(d).

However, preliminary objections raising an issue under subdivision (a)(2), (3) or (4) may be determined from facts of record so that further evidence is not required.

Rule 239.5 requires every court to promulgate Local Rule 1028© describing the local court procedure governing preliminary objections. Local Rule 1028© shall be published on the web site of the Administrative Office of Pennsylvania Courts (www.aopc.org).

(d) If the preliminary objections are overruled, the objecting party shall have the right to plead over within twenty days after notice of the order or within such other time as the court shall fix.

(e) If the filing of an amendment, an amended pleading or a new pleading is allowed or required, it shall be filed within twenty days after notice of the order or within such other time as the court shall fix.

(f) Objections to any amended pleading shall be made by filing new preliminary objections.

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