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Jimmy E

Standard Admissions opinions?? Help.

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II. AFFIRMITIVE DEFENSES

1. Plaintiff’s Complaint is time-barred Pursuant to Statute of Limitations § 4-3-118.

2. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with Plaintiff.

3. Plaintiff has not proven the alleged debt is valid or the amount of the debt is accurate. Plaintiff must prove that the principal, interest, collection costs, and attorneys fees are all correct, agreed to in the Defendant’s alleged Defendant’s contract, and lawfully charged. Defendant also insists that Plaintiff produce a contract, account statements, and purchase receipts to prove amount of alleged debt.

4. Plaintiff’s damages are limited to real or actual damages only on alleged debt.

5. The court would unjustly enrich Plaintiff by granting the relief sought herein.

:trainwreck:

District court in Arkansas is fancy for small claims. You can appeal De Novo, so would not worry about that case. You get an appeal for any excuse, even if you fail to show up for trial.

What law firm is suing you and what judge has the case. If it is not in Little Rock and you think somebody might figure you out, and you care, you can PM the who the judge is.

I can't think of any that I know of that are going be very receptive to your answers to admissions that you don't know what certain means.

The affirmative defenses are just a disaster, but not as bad as most people's and you can overcome those. The part about they have not proved anything and they have to prove all this and that is dead on, but it's not even in the same time zone as an affirmative defense.

You used on defense that is legit, statute of limitations. What's up with this. That is a way to win this with one motion.

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I think you are just trying to be oppositional. If I'm wrong that is something that I freely admit to and I'm not afraid to ask questions. I've been on the board for three years and due to the strategy of using motion for more definite statement or in our state demand for bill of particulars, plaintiffs lose a lot of steam because they generally turn in something that is woefully deficient, and not within the proper timeframe.

Usually these complaints say nothing other than the Defendant owes somebody some money and list causes of action. These types of complaints are deficient and although they are standard, they are not legally sufficient which is why there exists a demurrer process in CA or something similar to rule 12e federal rules of civil procedure in almost all the states. Many states have something where you can do a motion to dismiss for insufficient pleadings but most judges prefer for a person to ask for a clarification or amended pleading so the case can be decided on its merits. Again that is why a motion for a more definite statement makes sense.

I don't know why you are opposed to this,especially if the Defendant files an answer to cover their bases.

BTW you were incorrect about using compound ADMIT and DENY statements with OBJECTIONS in ADMISSIONS and I posted the rule from AR RCP and other posters agreed with the concept from previous postings. You haven't argued with that now you've moved on to be oppositional about something else. I already posted the rule from AR RCP so what is your problem?

Rikkvis,

Good for you. It seemed to me that legaleagle was just being rude and oppositional too. Like just for the sake of it. Weird.

I have read what you have to say and it makes sense to me. Thank you.

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The difference in approach comes from the fact that I deal in California and speak to the unique quirkiness of our states RCP and Rules of Court. California has some devices that immediately can put plaintiff on the defensive and it turns out that many other states have similar vehicles that aren't used as often as they ought to be.

The Motion for a more definite statement, or Bill of Particulars (depending upon which state you're in) serves a vital purpose because off the bat they must give you an itemization of the account from zero balance and they have to show how they arrived at whatever balance they allege you owe. In most states, if the MDS is lacking in some areas or plaintiff did not submit one, terminating sanctions can result and or exclusion of evidence, provided the Defendant is astute enough to draft these motions etc.

The next reason why these MDS and BOPs are so important is that you can see the evidentiary stuff to see how tight their case is. Obviously if you did an MDS and they came back with a stack of papers that had your name and identifying information you would not win the lawsuit but you would be able to get a good settlement. In my estimation it makes sense to understand the nature of complaints against you.

The other issue that was brought up a few threads ago is in affirmative defenses. I cannot stress enough their importance, provided they are relevant. In particular the account stated defenses are useful!

Leagleeagle and Coltfan have a different approach to these suits. Time will tell whose methods are most effective, but in the meantime I don't want to get into pissing matches either:mrgreen:

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:trainwreck:

District court in Arkansas is fancy for small claims. You can appeal De Novo, so would not worry about that case. You get an appeal for any excuse, even if you fail to show up for trial.

What law firm is suing you and what judge has the case. If it is not in Little Rock and you think somebody might figure you out, and you care, you can PM the who the judge is.

I can't think of any that I know of that are going be very receptive to your answers to admissions that you don't know what certain means.

The affirmative defenses are just a disaster, but not as bad as most people's and you can overcome those. The part about they have not proved anything and they have to prove all this and that is dead on, but it's not even in the same time zone as an affirmative defense.

You used on defense that is legit, statute of limitations. What's up with this. That is a way to win this with one motion.

I only added the SOL to the Affirmative Defenses because I believed the Plaintiff had to prove to the court that it ISN'T time-barred as much as I would have to prove that it was. Stupid, I now know. Bottom line, neither case is time-barred.

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I would not claim privity. A credit card is based on use and acceptance. You accepted the card and used it. That's a contract. If the terms and conditions of the cardmember agreement allow the OC to sell the account, the new owner steps into the shoes of the OC. They have privity.

If the new owner can't prove ownership of the account, they haven't proven they have a right to sue. They don't have standing to sue. If they don't have standing, they haven't proven they've stepped into the shoes of the OC. Therefore, there's no privity.

All you have to do is show they haven't proven standing to sue. That, in itself, takes care of privity.

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I would not claim privity. A credit card is based on use and acceptance. You accepted the card and used it. That's a contract. If the terms and conditions of the cardmember agreement allow the OC to sell the account, the new owner steps into the shoes of the OC. They have privity.

If the new owner can't prove ownership of the account, they haven't proven they have a right to sue. They don't have standing to sue. If they don't have standing, they haven't proven they've stepped into the shoes of the OC. Therefore, there's no privity.

All you have to do is show they haven't proven standing to sue. That, in itself, takes care of privity.

BV80, thanks for the info. I found out the privity issue when I became a member of this site. Remember, I was (and still am but no so much) clueless, can't afford a lawyer, and just put some stuff together to answer the complaint. Since Coltfan is a resident of my state, he knows the rules better than I. Plus input from people like you is invaluable to me and I really appreciate all the help when I feel helpless.

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A motion for a more definite statement means the complaint is so poorly worded and vague that you can't understand what the plaintiff is alleging. It does not have any relation to a discovery issue, which is what you included in your post. (alleged accounting of the debt) It makes no sense to answer a complaint, then file a motion that says you can't understand what you just answered. .

No that is why the MDS should be filed first then if time is ticking an answer can be filed which is still consistent with the initial position

A motion for more definite statement includes how they arrived at the suit amount and language from the contracts that were allegedly breached etc such that the issues can be narrowed. MDS and BOPs are supposed to elucidate the pleadings. That means make the pleadings more intelligible. The issue of vagueness is contentious as I mentioned before, but at this point every single judge that I've come across always grants a BoP demand or motion to compel further BoP because although the pleading forms are standardized, they are not legally sufficient. A person can sue you and say you owe them money. But you have to understand the nature of their allegations and ask for an MDS. This is what the JUDGE told the oppositional rental attorney in our settlement conference last week.

So just stick with what you know and advise others on what you understand. Don't bother me becauseI am discussing issues that you don't quite understand.

BTW you were incorrect about using compound ADMIT and DENY statements with OBJECTIONS in ADMISSIONS

I disagree. The request we were discussing was very sinmple as I recall, it involved only one element. If it had two distinct separate elements, it would be objectionable anyway as to form. In this case, the objection was proper. Combining a denial with an objection makes no sense. The rules generally state admit, deny, or object. If the question is compounded, you can admit in part or deny in part, explaining each. If it is so compounded that you feel like you have to object to part of it etc., then object to the form and force them to separate it into two or three requests.

Which is what I said above. I think your reading comprehension needs work. You argued with me, then you contradict yourself above, then front like you're right. Nope your wrong and having a negative attitude about it makes your attacks worse.

Usually these complaints say nothing other than the Defendant owes somebody some money and list causes of action.

That is all a complaint is required to do.

Incorrect, that is why they have the motions to dismiss for failure to state a claim and demurrer devices. Just because people do pleadings like that all the time as a matter of course, does not make these pleadings legally sufficient. If your logic worked, anybody could sue anyone at any time and all they'd need to do is allege it in their complaint. That is unacceptable and most judges, when this is brought to their attention would not deem it a reasonable complaint.

motion for more definite statement or in our state demand for bill of particulars.

Again, your post is confusing. An MDS is procedural for the complaint. The BOP is a discovery tool.

INCORRECT!!! A Bill of particulars and a Motion for more Definite statement serve the same purpose; to ELUCIDATE the pleadings. Although some judges treat both procedures like discovery they serve a different purpose than traditional discovery, yet compliment it. Whatever they present in the MDS or BoP is what they are LIMITED to talk about at trial. So again these processes can benefit a defendant if they are saavy.

My problem is seeing people get bad advice, nothing more, nothing less. I've noticed a pattern in your posts that makes the little bell go off.....they ramble, mix up laws and procedure, misinterpret what other posters put up here, and generally tell people to do things that make no sense.

Incorrect. You don't know what you're talking about and have chosen to pick on me but you haven't been on the board as long. There are many posters who have benefitted from things I have said in particular on THESE ISSUES. So go piss up a rope and leave me the hell alone. Your arrogance is nasty.

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Legaleagle and rikkivs - you both need to chill and refrain from personal attacks. I value both of your information - try and be civil, I'd hate to see things get really nasty. Disagreements are fine, but they need to be respectful.

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BV80, thanks for the info. I found out the privity issue when I became a member of this site. Remember, I was (and still am but no so much) clueless, can't afford a lawyer, and just put some stuff together to answer the complaint. Since Coltfan is a resident of my state, he knows the rules better than I. Plus input from people like you is invaluable to me and I really appreciate all the help when I feel helpless.

I apologize. I realize now that you had already filed your answer. Sorry about that.

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Jimmy,

Check your email. The cavalry has arrived. Been swamped with a lawsuit of my own, but no way is Midland going to beat another Razorback on this board, unless it's by sheer giving up and just conceding the case. xxHellxx

Time to give them some responses, and then kindly return the favor with your own set of requests to them. And your going to want to know all about this "affidavit" and the person that signed it. I just have a funny feeling about it. ::BigGun::

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Thanks to all who have given me opinions on matters. A special thank you to Coltfan, a fellow Arkansan and 'pitbull.' Below are the Responses for REQUEST FOR ADMISSIONS that I MUST send off today.

For some reason, Request No. 2 bothers me. I would appreciate opinions on a better response as it came just from me and no one on the forum. Thanks in advance:

BTW, Plaintiff is 'Midland Funding LLC as Successor in Interest to HSBC BANK NEVADA, NA METRIS'

REQUEST NO. 1: Admit that you are a resident of 'X' County, Arkansas.

ADMIT

REQUEST NO. 2: Admit that you charged on the account, which is the subject of this lawsuit.

Defendant lacks sufficient knowledge of alleged account and can neither admit nor deny this request at this time.

REQUEST NO. 3: Admit that the principal amount past due on said account, which has not been paid, and has been owed for a long period of time is $XX.

ADMITTED in part, to the extent that Defendant does not have materials in her possession that would serve to establish the accuracy of any alleged principal amount Plaintiff seeks, one way or the other. Such documentation will be requested in discovery. Therefore, Defendant denies any implied admission that the alleged principal is accurate or owed.

REQUEST NO. 4: Admit that monthly statements/bills in regard to this account were sent to and received by you.

DENY

REQUEST NO. 5: Admit that you never notified Plaintiff in writing of any dispute in regard to this account.

ADMITTED in part. Defendant never notified Plaintiff of any dispute because Plaintiff is not the alleged original creditor. Therefore, Defendant would have no reason to do so.

REQUEST NO. 6: Admit that you never notified Plaintiff in writing of any complaints or requests to stop credit on this account.

ADMITTED in part. Defendant never notified Plaintiff of any complaints because Plaintiff is not the alleged original creditor. Therefore, Defendant would have no reason to do so.

REQUEST NO. 7: Admit that you do not have any documentation indicating the balance of this account to be less than $XX.

ADMITTED in part, to the extent that defendant does not have any documents in her possession that would serve to establish the accuracy of any alleged balance the Plaintiff seeks, one way or the other. Such documentation will be requested in discovery. Therefore, Defendant denies any implied admission that the alleged balance is accurate or owed.

Edited by jimmy1967

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I'm not the one using profanity and making personal attacks. I have never done that here. Anybody who can't take a little criticism without blowing up is going to have a very hard time in the field of law. We bang heads up here all the time, then we hash out the issue. The posters benefit from that. They do NOT benefit when they get advice that is clearly in error. I am not an expert on CA law, but I can read. The issue here that started this was connected to one simple request for admissions from a poster in Ohio, which was very poorly worded by the JDB. I framed an anwer that took advantage of that stupidity and was criticized by Mr. California for it, based upon a principle of law and a set of rules that did not even apply. I stand by that answer.

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Some California law for the group:

Filing the Complaint

425.10. (a) A complaint or cross-complaint shall contain both of

the following:

(1) A statement of the facts constituting the cause of action, in

ordinary and concise language.

(2) A demand for judgment for the relief to which the pleader

claims to be entitled. If the recovery of money or damages is

demanded, the amount demanded shall be stated.

Objecting to the Complaint

430.10. The party against whom a complaint or cross-complaint has

been filed may object, by demurrer or answer as provided in Section

430.30, to the pleading on any one or more of the following grounds:

(a) The court has no jurisdiction of the subject of the cause of

action alleged in the pleading.

(B) The person who filed the pleading does not have the legal

capacity to sue.

© There is another action pending between the same parties on

the same cause of action.

(d) There is a defect or misjoinder of parties.

(e) The pleading does not state facts sufficient to constitute a

cause of action.

(f) The pleading is uncertain. As used in this subdivision,

"uncertain" includes ambiguous and unintelligible.

(g) In an action founded upon a contract, it cannot be ascertained

from the pleading whether the contract is written, is oral, or is

implied by conduct.

(h) No certificate was filed as required by Section 411.35.

(i) No certificate was filed as required by Section 411.36.

This is exactly what was argued here. The complaint cannot be understood. In most states you havea MMDS format, CA uses an Objection format.

Bill of Particulars

454. It is not necessary for a party to set forth in a pleading the

items of an account therein alleged, but he must deliver to the

adverse party, within ten days after a demand thereof in writing, a

copy of the account, or be precluded from giving evidence thereof.

The court or judge thereof may order a further account when the one

delivered is too general, or is defective in any particular.

If the pleading is verified the account must be verified by the

affidavit of the party to the effect that he believes it to be true;

or if the facts are within the personal knowledge of the agent or

attorney for the party, or the party is not within the county where

the attorney has his office or from some cause unable to make the

affidavit, by the affidavit of the agent or attorney.

The BOP serves two purposes; one is for criminal cases, one is for civil. The criminal cases involve a more definite statement of the allegations, the civil involves an accounting, which is a discovery tool as I see it, although it is not classified under discovery. In every instance here on the forum, it is used against credit card comapnies who sue under breach of contract. It requires a full accounting of the subject account. CA appears to have no "motion for a more definite statement" at this level. Every one I found was at the higher levels, circuit and district courts.

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On post #36 of this thread, I have, with the collective help of a lot of good people on the forum posted responses to plaintiff's request for admissions.

I am concerned with and seek opinion on my answer to "REQUEST NO. 2." Specifically, I'm hoping it does not clash or contradict with the remaining answers. This particular request was not originally posed to the thread (my bad).

Any thoughts would be appreciated.

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On post #36 of this thread, I have, with the collective help of a lot of good people on the forum posted responses to plaintiff's request for admissions.

I am concerned with and seek opinion on my answer to "REQUEST NO. 2." Specifically, I'm hoping it does not clash or contradict with the remaining answers. This particular request was not originally posed to the thread (my bad).

Any thoughts would be appreciated.

Have they provided any account numbers yet?

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REQUEST NO. 2: Admit that you charged on the account, which is the subject of this lawsuit.

Straight denial. Let them prove otherwise, their burden, not yours to disprove.

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The reason I asked if they provided account numbers is because if you don't have an account number to go by, how do you know to what account they're referring?

Here's an response from Calawyer in response to another OP's admission request which stated "Admit you made payments on the account."

"Defendant objects to this RFA on the ground that the word "Account" is vague and ambiguous in the context of this litigation. Plaintiff's complaint is utterly devoid of any factual information regarding the alleged debt and plaintiff has not yet responded to defendant's discovery seeking such factual information. Based upon the foregoing, defendant responds as follows: DENIED."

A possible suggestion would be:

Defendant objects to this RFA on the ground that the word "Account" is vague and ambiguous in the context of this litigation. Plaintiff's Complaint does not include an account number for the alleged account. Based upon the foregoing, Defendant denies.

Or you could simply deny. :)

Edited by BV80

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I like deny but CALAWYER response is actually dead on if you want to elobrate. Based on what court your in and the atty for the other side, deny will work just fine.

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Nope, nothing. I have never submitted the original complaint received to the forum. If a new thread is in order, fine, I can cut/paste.....but, here it is:

MIDLAND FUNDING LLC AS SUCCESSOR IN INTEREST TO HSBC NEVADA, NA METRIS

1. Nature of Claim: Suit on an account

2. Nature and Amount of Relief Claimed: That the Defendant is liable to Plaintiff in the principal amount of $xx,xxx.00 as shown by the attached affidavit, which should accrue pre-judgment interest at the rate of 5.5% from the charge-off date, 07/31/2009, court costs, and attorneys fees, and upon Judgment, the principal balance should accrue post-judgment interest at the maximum rate allowed by law.

3. Factual Basis of Claim: Defendant received a credit account from Plaintiff's predecessor in interest, as detailed on the attached affidavit. The Defendant made various charges on the account, leaving an outstanding balance. Plaintiff obtained by assignment all rights, title and interest on the account, and it remains unpaid despite the demands of Plaintiff.

That's it. Attached was the affidavit from the legal "specalist" from Midland Credit Management (MCM) writing on behalf of Midland Funding LLC that he has all of the special powers to know all about the specific account.

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On a side note, is your wife going to really argue all this stuff, show up to court, and make these arguments? Not saying that to be rude, but you're the one doing all the leg work (like most men, :lol:).

You can't do this for her, talk for her, rep her, ect.... Just wondering if this is a case where there is a going to be a ton of good info given, only to end in the all to common, "thanks, but I just decided I wanted this to all go away so took their offer to pay 50%."

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Oh, contrar Coltfan..... it will be a bloody battle to the end! I promise you my wife will leave the defense in tears. This will NOT be settled for a FRACTION of one cent if for no other reason than to let these bottom-feeders know they can't just roll over people. BRING IT!!

xdeadhorsex

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Leagleeagle once again you're still saying incorrect stuff trying to quote CA law to me and just repeat what I've already said. BV80's quote below goes to the heart of the matter about vagueness. It makes absolutely no sense to try to answer a complaint without a BoP or motion for more definite statement if they dont even provide an account number on their suit. This is obvious and plain sense. As to the BOP you were in error about it being a discovery device, then when called upon it the only thing you did is cite CCP 454 which we all know about already. CCP 454 is not discovery it is an amplification of the pleadings. Instead of pointing the finger at me for alleged reading comprehension issues look at yourself. You once again are in error.

The reason I asked if they provided account numbers is because if you don't have an account number to go by, how do you know to what account they're referring?

Here's an response from Calawyer in response to another OP's admission request which stated "Admit you made payments on the account."

"Defendant objects to this RFA on the ground that the word "Account" is vague and ambiguous in the context of this litigation. Plaintiff's complaint is utterly devoid of any factual information regarding the alleged debt and plaintiff has not yet responded to defendant's discovery seeking such factual information. Based upon the foregoing, defendant responds as follows: DENIED."

A possible suggestion would be:

Defendant objects to this RFA on the ground that the word "Account" is vague and ambiguous in the context of this litigation. Plaintiff's Complaint does not include an account number for the alleged account. Based upon the foregoing, Defendant denies.

Or you could simply deny. :)

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Leagleeagle

There is a new invention called spellcheck. Maybe you should try it.

Instead of pointing the finger at me for alleged reading comprehension issues look at yourself.

Try again. Every post on this site using 454 is a discovery device. The alternate method of a more definite statement is for criminal cases. What part of the statute don't you understand? I posted case law, take it up with the court. As for the finger, guess which one you get. Learn how to read, maybe then you can take me on. YOU mentioned reading comprehension, not me.

or motion for more definite statement

You show me any language in any California statute that provides for a more definite statement, a term you insist on using, which does not apply in your state. The correct procedure is objection. Right or wrong?

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Thanks again for everyone's advice. It is comforting to know that the posters on this board are passionate about helping the 'Pro Se' against the sharks. Special thanks to fellow Razorback, Coltfan who has taken time to help me via PM. I will share the saga as it unfolds, providing a blow-by-blow of everything that is going to be happening.

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