Please critique my Answer - Target

[Cat123]

Hello.... Sending in my Answer tomorrow and would appreciate any and all comments. I removed everything about Arbitration as although I have no cardmember agreement, you all do not believe there is one in Target's agreement. Also, I am still looking for an old agreement which show's that the Plaintiff is not the one with whom the agreement is with. NOTES: Previous to this firm (atty's), I rec'd a notice from another firm which never responded to anything at all. Also, I did request DV and rec'd only 1 stmt and nothing more. However, when I rec'd the stmt, 3 months later, the note attached did not include the phrase, "You must respond within 30 days if you dispute...", as did the first notice, which I did respond to.

Here goes: First, the Complaint:

Count I - Open Account

1. This is an action for damages which exceed............

2. The Defendant made purchases of vaious and diverse consumer good and/or effected cash advances thru the use of his credit account ending in.......

3. Defendant has failed to pay the balance due on the accunt.

4. Defendant owes the Plaintiff................

A. Wherefore, Plaintiff demands judgment against the Def for damages of........and any further relief.......

Count II - Account Stated

5. Plaintiff repeats and realleges the allegations of Para 1 and 2 as if fully set forth herein.

6. Before the institution of the action Plaintiff and Defendant did not object to the statement.

7. Plaintiff rendered a statement of account to Defendant and Defendant did not object to the statement.

8. Defendant ows the Plaintiff.............

A. Wherefore... same as above.

My Answer:

AS TO COUNT I:

1. Defendant is without knowledge as to the allegation alleged in

Paragraph 1, therefore, it is DENIED.

2. Defendant is without knowledge as to the allegation alleged in

Paragraph 2, therefore it is DENIED.

3. Defendant is without knowledge as to the allegation alleged in

Paragraph 3, therefore it is DENIED.

4. Defendant is without knowledge as to the allegation alleged in

Paragraph 4, therefore, it is DENIED.

AS TO COUNT II:

5. Defendant is without knowledge as to the allegation alleged in

Paragraph 5 , therefore, it is DENIED.

6. Defendant is without knowledge as to the allegation alleged in

Paragraph 6, therefore, it is DENIED.

7. Defendant is without knowledge as to the allegation alleged in

Paragraph, therefore, it is DENIED.

8. Defendant is without knowledge as to the allegation alleged in

Paragraph 8, therefore, it is DENIED.

The Defendant now brings forth the following Defenses:

DEFENSES

1. Plaintiff has not proved there is a signed contract between Plaintiff

and Defendant.

2. Plaintiff has not proven the Defendant used, or authorized use of the

alleged account.

3. Plaintiff has not proven the debt is valid or the amount of the debt is

accurate.

4. Plaintiff has not proven the principle, interest, delinquency fees, and

costs are lawfully charged or valid.

5. Plaintiff has not proven there is a signed contract between Plaintiff

and Defendant.

6. Plaintiff failed to provide account statements and purchase receipts to

prove the amount of the debt.

7. Plaintiff failed to prove that Defendant received copies of invoices or

statements.

8. Plaintiff failed to prove that invoices or statements were sent to

Defendant.

9. Defendant claims debt is time-barred. Absolutely no accounting of the

debt was provided making it impossible to tell when alleged default on debt

occurred.

10. Plaintiff failed to prove that demand for payment of alleged debt was

made.

11. Defendant answering the Complaint herein, alleges that all allegations

and counts brought forth therein fails to state a claim for which relief can be

granted.

Defendant reserves the right to amend and/or add additional Answers, Defenses, and/or Counterclaims at a later date.

CERTIFICATE OF SERVICE

A copy of the filing has been mailed to attorney

WHEREFORE, Defendant prays that the court take nothing of Plaintiff’s Complaint by virtue and dismiss the complaint.

Thanks so much

[racecar]

Account Stated

In order to sue for Open Account, the party must allege: (1) there was a sales agreement, (2) the amount claimed is either an agreed price or reasonable value, and (3) items were actually furnished. In addition, under Florida case law, to satisfy (3) the claimant must attach an ‘itemized’ copy of the account. See H & H Design Builders, Inc. v. Travelers’ Indem, 639 So. 2d 697, 700 (Fal. 5th DCA 1994). It is this required attachment that is rarely complied with by the credit card company, which is why moving to dismiss a complaint containing a claim for Open Account will often be successful.

Edited August 20, 2012 by racecar

[BrunoTheJDBkiller]

I would eliminate those defenses, most of them are not recognized defenses, you are arguing the case. You can't claim the statute of limitations expired, then say you don't have information establishing the date of default. Target is South dakota law, 6 year SOL.

[Cat123]

Oh. So, I need to remove everything and move for dismissal as per racecar. Wow. Sooo much to learn.

Thank you!

[Cat123]

OK..... reading, reading, reading and learning.

I've removed all those defenses (gotta quit that arguing... Thanks, Bruno!) and added a MTD based on racecar's most wonderful post. I will file the MTD along with my Answer.

I've read and re-read the Civil Procedures... still confusing, but I don't see anything really special that I need to do for a MTD just state the reasons and send with my Answers.

[kutuzov]

Read rule 1130, of the procedual code, just move to dismiss, you don't even need to answer for now. Do a motion to dismiss based on that and what for account states as bruno says. To prove account stated you need those 3 elements, I don't think you signed any paper that you agreed on that money owed, so no account stated is possible. They didn't sue for breach of contract, so if they cannot come up with that later, and no contract, no signature of an application ... I think you can win it easier than with Discover!

[Cat123]

Get outta here.

You know, I'm really excited about learning just so that maybe I can give one little bit of info to help to someone out there and make them feel as good as I do right now.

MTD is on its way.