Dovetail630 Posted March 26, 2012 Report Share Posted March 26, 2012 (edited) New here, and this may already have been addressed somewhere else, but unfortunately I don't have time to weed through all the old threads looking for the answer. Served a Summons & Complaint in Oregon. 30 days is up on 3/29/12. My research indicated I could file a Motion to Dismiss IN LIEU of an Answer - so I did. Went to file it today, and the court clear in Clackamas County told me that it would NOT stop a default judgement unless I ALSO file an Answer before the 30 day deadline.Is this true? If so, then what is the use in having the option to file a Motion to Dismiss in lieu of an Answer? Obviously if I have to file an Answer, I have to do it FAST to meet the deadling. I know, I know, this is last minute, but I spent 3 weeks trying to get hold of the law firm for the Plaintiff because I was an idiot thinking I would work something out with them. Its like they intentionlly waited to call me back until the last minute so now I'm in this rush situation to respond to the Complaint.I want to fight this, and DON"T want a default judgement. I went ahead and filed the Motion to Dismiss and paid the fee today. Do I still need to do an Answer by Thursday like the clerk says?DT Edited March 26, 2012 by Dovetail630 Link to comment Share on other sites More sharing options...
admin Posted March 26, 2012 Report Share Posted March 26, 2012 What do your rules of civil procedure say? It couldn't hurt to file an answer as well, they are pretty simple to write. Link to comment Share on other sites More sharing options...
Dovetail630 Posted March 26, 2012 Author Report Share Posted March 26, 2012 I couldn't find anything in the Rules that addressed this specifically. I will try and re-read them, but from what I recall it talked about filing the motion to dismiss, but didn't say anything about whether it did or did not satisfy the required response to "appear". Link to comment Share on other sites More sharing options...
admin Posted March 26, 2012 Report Share Posted March 26, 2012 Then I would file an answer just to make sure you are covered. It really shouldn't take you that long. Link to comment Share on other sites More sharing options...
Coltfan1972 Posted March 26, 2012 Report Share Posted March 26, 2012 Its like they intentionlly waited to call me back until the last minuteYou think? Can't believe you even got a clerk to give you leagal advice. That hardly ever happens. As Admin stated, what do your rules of procedure say. Just Google Oregon rules of civil procedure and check with the local court for any local court rules. But why would you not file an answer based on the information you have been told, at this time. See if you can do a general denial, which you probably can. Then just deny the allegations. On a side note, what was your motion to dismiss based on. Link to comment Share on other sites More sharing options...
Dovetail630 Posted March 26, 2012 Author Report Share Posted March 26, 2012 (edited) I don't think it will take long to put together an answer. The problem is getting it served on the Plaintiff's attorney - with proof of service - AND filed with the court in time. The Plaintiff's attorney is out in BFE - 60 miles from where I live. I already made that trip today to deliver the Motion to Dismiss, then drove another 30 miles to the court, spent 1.5 hours there (because I got there when they were all at lunch). If I overnight the Answer to th Plaintiff's attorney tomorrow, will that serve as proof? I know the Motion to Dismiss was a longshot, but I thought it was worth a try especially if it satisfied the requirement to "appear" within 30 days. I figured if the motion is denied, it would have bought be the additional time to prepare an answer and start prepping my case. To Coltfan1972 - I based the motion to dismiss on ORCP Rule 21 A(5) insufficiency of summons.....and Rule 21 A (8) failure to state ultimate facts sufficient to constitute a claim. The Complaint was extremely vague with no reference to account numbers or dates, and of course they did not attach any copies of the so called "agreements" or "contracts". I actually had 2 different credit cards with the "original creditor" at one point in time, and the Complaint doesn't state which one they are claiming I defaulted on. Edited March 26, 2012 by Dovetail630 Link to comment Share on other sites More sharing options...
Coltfan1972 Posted March 26, 2012 Report Share Posted March 26, 2012 Your rules will specifify, but you can usually file with the court and then 5 days for mailing are allowed. In AR we can also electronic (email) file something like you are needing done. I know of no state where the other side has to be personally served with anything other than the original complaint. Link to comment Share on other sites More sharing options...
Dovetail630 Posted March 26, 2012 Author Report Share Posted March 26, 2012 I will check Oregon rules again on serving the Answer. I know I read somewhere that it had to be served to the Plaintiff or their Attorney BEFORE the 30 day deadline. You could use registered mail, but you had to make sure that they actually received it before the 30 days. I'm not sure if I read that in the rules or somewhere else. Link to comment Share on other sites More sharing options...
Seadragon Posted March 27, 2012 Report Share Posted March 27, 2012 Look up the ORCP statute for pleading and the acceptable resonses in an answer when I get home I will help.You need to go to off topic and post some things ten times then PM me the complaint. and if you want to save some time we have oregon answers somewhere here type oregon answer in the search bar.Don't freak out and take a chill pill you are like a scared rabitt right now. JDB's love to do that to you. Link to comment Share on other sites More sharing options...
Dovetail630 Posted March 27, 2012 Author Report Share Posted March 27, 2012 Thanks, Seadragon. Would be nice to find an Oregon Answer somewhere that I can use as a template. I can't pm you a copy of my complaint until tomorrow as I don't have access to a scanner tonight. I'm not worried about getting the answer filed with the court on time - I can easily do that by Wednesday. Getting a copy of the answer to the Plaintiff is a bigger problem if it has to be done by Wednesday as well. I'm also a little stressed about what to list for defenses. Have been researching, and some are obvious ones I can use and prove later, others are more vague, but should I list any potential defense anyway since if I don't, I can't use it later? You are right - they know just how to make you panic. But now that I've been on this forum and other places and realize I'm not alone in this, I feel better. Link to comment Share on other sites More sharing options...
Dovetail630 Posted March 27, 2012 Author Report Share Posted March 27, 2012 Good news! I re-read the Oregon Trial Rules and discovered I can FAX the Answer to the JBD's attorney. That saves me a lot of time and worry. Just need to finish typing up the Answer and get it off tomorrow.What are the best, most provable defenses to list in the Answer?DT Link to comment Share on other sites More sharing options...
BV80 Posted March 27, 2012 Report Share Posted March 27, 2012 Is the Plaintiff a JDB or OC? Link to comment Share on other sites More sharing options...
Dovetail630 Posted March 27, 2012 Author Report Share Posted March 27, 2012 The Plaintiff is a JDB - Portfolio Recovery Associates, LLC Link to comment Share on other sites More sharing options...
legaleagle Posted March 27, 2012 Report Share Posted March 27, 2012 Best shot is lack of standing, but if you assert that or any other defense you'll have to prove them. Better to let them try to establish standing, usually they can't do it. No defenses, in my opinion. Link to comment Share on other sites More sharing options...
Dovetail630 Posted March 27, 2012 Author Report Share Posted March 27, 2012 By denying the allegations in the Complaint, isnt that automatically saying there is a lack of standing, and then the burden of proof is on them? Link to comment Share on other sites More sharing options...
legaleagle Posted March 27, 2012 Report Share Posted March 27, 2012 Indirectly, yes, especially if they stated in the complaint that they are the legitemate owner of the account, which they usually do. Link to comment Share on other sites More sharing options...
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