Jump to content

answer a complaint


wewe
 Share

Recommended Posts

I recently received a summons for an old credit card debt, and I'm in the process of answering it.  I do not have to appear in court, only answer at this point. Here is my complaint:

1.    My name and address

2.    The defendant opened an account agreeing to make monthly payments for purchases charged to the account

3.    Defendant did make purchases and charged same to the account, but the defendant failed to make the monthly payments due on the account.

4.    Plaintiff has completed performance and rendered an account stated in the of .......

5.    The plaintiff has declared the defendant to be in default and demands payment of the balance due on the account.  Defendant has/have refused said demand.

 

Wherefore, the plaintiff prays for judgment against the defendant in the amount of .....

 

Here is my answer I have drafted.  After all of the legal stuff at the top this is my answer:

 

1.   The defendant affirms.

2.   The defendant denies. No agreement has been submitted into the record to evidence the allegation and leaves Plaintiff to provide proof. The plaintiff's complaint indicates the existence of an assignment and sale agreement that was not attached to the complaint and defendant requests copies of all assignment and sale agreements pertaining to the alleged account.  The Plaintiff is making an unsupported statement that a contract or agreement exists without providing an account agreement or details regarding the alleged account.  Defendant demands strict proof thereof. The Plaintiff has failed to establish proof of ownership of the alleged account and has not proven a standing to sue.

3.   No agreement has been submitted into the record to evidence the allegation.  The exhibit provided is based on hearsay.

4.   Defendant has insufficient information to admit or deny, and therefore must respectfully deny. Defendant demands strict proof thereof.

5.   Defendant has insufficient information to admit or deny, and therefore must respectfully deny.   

    Defendant demands strict proof thereof.

 

My affirmative defenses:

1.  The plaintiff has not proven the alleged debt is valid or the amount of the alleged debt is accurate.  The plaintiff must prove that the alleged principal, interest, collection costs and alleged attorneys fees are all correct, agreed to in the alleged contract and lawfully charged.  Defendant also insists that the plaintiff provide the alleged contract and a complete accounting roving the amount of the alleged debt.

2.  The court would unjustly enrich the plaintiff by granting the relief sought herein.  Plaintiffs alleged damages are limited to real and actual damages only.

 

Wherefore the defendant asks the court for judgment:  a. dismissing the complaint herein with prejudice.  

 

Does this look like a reasonable answer to the complaint?  They attached an affidavit but nothing else.  Also in the affidavit it does state that my account number was 1234123412341234 prior to the charge off, and subsequently it has changed and is currently 1235123512351235, for the debt she owes.  Does this mean anything?

 

Thank you so much for your help.

Link to comment
Share on other sites

No, I have not submitted it yet.  The only documents attached were an affidavit and a notary signature form.  No statements, terms or anything else.  What do I need to do to conform to court rules.  In my original I do have all of the court info up at the top, along with the law firm, and my name and the date, and then I answer the complaint below all of that.

Link to comment
Share on other sites

No, I have not submitted it yet.  The only documents attached were an affidavit and a notary signature form.  No statements, terms or anything else.  What do I need to do to conform to court rules.  In my original I do have all of the court info up at the top, along with the law firm, and my name and the date, and then I answer the complaint below all of that.

 

 

 

Michigan Rules of civil procedure state that in a responsive pleading you may either admit, deny or state that you lack knowledge or information sufficient to form a belief as to the truth of the allegation, which has the effect of a denial. If you deny, then you have to state the reasons for your denial.

 

#'s 1 & 2 of your answer, as it stands, comply with the rules.

#3 doesn't comply; neither does it even admit or deny.

 

#s 4 & 5 (lack of knowledge) has the effect of a denial and the rules state that if you deny ....... you must state the reason for your denial.

 

BTW ....  your affirmative defenses are yours to prove ....... can you?

Link to comment
Share on other sites

What exactly does this mean...Plaintiff has completed performance and rendered an account stated in the of .......and how do I answer this?

 

Also, here is my latest revision, just wondering if looks ok to send.

 

 

  1. The defendant affirms.
  2. The defendant denies. No agreement has been submitted into the record to evidence the allegation and leaves Plaintiff to provide proof. The plaintiff's complaint indicates the existence of an assignment and sale agreement that was not attached to the complaint and defendant requests copies of all assignment and sale agreements pertaining to the alleged account.  The Plaintiff is making an unsupported statement that a contract or agreement exists without providing an account agreement or details regarding the alleged account.  Defendant demands strict proof thereof. The Plaintiff has failed to establish proof of ownership of the alleged account and has not proven a standing to sue. 
  3. The Defendant denies.  Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegation.The exhibit provided is based on hearsay.  Defendant demands strict proof thereof.
  4. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegation. Defendant demands strict proof thereof.

5. Defendant has insufficient information to admit or deny, and therefore must respectfully deny.   

    Defendant demands strict proof thereof.

 

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

 

WHEREFORE, the defendant asks the Court for judgment:

a. dismissing the complaint herein with prejudice.

Link to comment
Share on other sites

Much better on your 2nd version

 

When was the complaint filed, when was the summons issued? Check the court stamp on the summons to show when it was recevied and look at the date on the summons was issued...two different dates.

 

Last, When was the affidavit dated?

 

To be on the safe side, create a counter-affidavit to offset the allegations in the complaint.

Link to comment
Share on other sites

What does that mean that it wasn't dated within 10 days of the complaint being filed.  Do you mean the affidavit that I received wasn't dated within 10 days of their filing the complaint, and does that make it void?

 

 

Issues Affidavit

Affidavit must be issued 10 days prior to filing or it is not timely

MCL 600.2145

An Untimely affidavit is insufficient as a matter of law (move to strike)

An "affidavit . . . made more than ten days before the complaint was filed" does not void the collection lawsuit; untimeliness merely "prohibits a court from assigning prima facie evidentiary weight to such an untimely affidavit." Capital One Bank v. Ringelberg, 2005 WL 2319125, *1 (Mich.App.2005).

An exception exists, however, with respect to "documents referenced by the pleadings themselves that are central to the plaintiffs claim." Brown v. Scott, 329 F.Supp.2d 905, 909 (E.D.Mich.2004) (citing Greenberg v. Life Ins. Co. of Va., 177 F.3d 507, 514 (6th Cir.1999)). The only documents referenced in the complaint on file are the state-court summons and complaint and the account affidavit. Those documents do nothing to advance the validation and ownership claims

I think timing is important as to when to move to strike an untimely affidavit as some of the cases I read indicated that the affidavit was sometimes left in play although its weight was affected.

 

Link to comment
Share on other sites

I know this is confusing, but here is the (Michigan Compiled Law) MCL 600.2145:

 

600.2145 Open account or account stated; proof, counterclaim.

 

Sec. 2145.

In all actions brought in any of the courts of this state, to recover the amount due on an open account or upon an account stated, if the plaintiff or someone in his behalf makes an affidavit of the amount due, as near as he can estimate the same, over and above all legal counterclaims and annexes thereto a copy of said account, and cause a copy of said affidavit and account to be served upon the defendant, with a copy of the complaint filed in the cause or with the process by which such action is commenced, such affidavit shall be deemed prima facie evidence of such indebtedness, unless the defendant with his answer, by himself or agent, makes an affidavit and serves a copy thereof on the plaintiff or his attorney, denying the same. If the defendant in any action gives notice, with his answer of a counterclaim founded upon an open account, or upon an account stated, and annexes to such answer and notice a copy of such account, and an affidavit made by himself or by someone in his behalf, showing the amount or balance claimed by the defendant upon such account, and that such amount or balance is justly owing and due to the defendant, or that he is justly entitled to have such account, or said balance thereof, set off against the claim made by said plaintiff, and serves a copy of such account and affidavit, with a copy of such answer and notice, upon the plaintiff or his attorney, such affidavit shall be deemed prima facie evidence of such counterclaim, and of the plaintiff's liability thereon, unless the plaintiff, or someone in his behalf, within 10 days after such service in causes in the circuit court, and before trial in other cases, makes an affidavit denying such account or some part thereof, and the plaintiff's indebtedness or liability thereon and serves a copy thereof upon the defendant or his attorney, and in case of a denial of part of such counterclaim, the defendant's affidavit shall be deemed to be prima facie evidence of such part of the counterclaim as is not denied by the plaintiff's affidavit. Any affidavit in this section mentioned shall be deemed sufficient if the same is made within 10 days next preceding the issuing of the writ or filing of the complaint or answer.

Link to comment
Share on other sites

In your Answer at paragraph 2, you wrote, "The plaintiff's complaint indicates the existence of an assignment and sale agreement" 

But, you stated the Complaint alleged:

"2.    The defendant opened an account agreeing to make monthly payments for purchases charged to the account"

 

Did the Complaint plead an assignment and list the original creditor or assignor's predecessor in interest? 

Link to comment
Share on other sites

2.The defendant denies. No agreement has been submitted into the record to evidence the allegation and leaves Plaintiff to provide proof. The plaintiff's complaint indicates the existence of an assignment and sale agreement that was not attached to the complaint and defendant requests copies of all assignment and sale agreements pertaining to the alleged account.  The Plaintiff is making an unsupported statement that a contract or agreement exists without providing an account agreement or details regarding the alleged account.  Defendant demands strict proof thereof. The Plaintiff has failed to establish proof of ownership of the alleged account and has not proven a standing to sue.
 

 

This is way too wordy, too argumentative, and compounded. Standing to sue is a special defense and does not belong in the answer unless you list it as such, which is a bad idea because it is speculation at this point.  Here's a better version.

 

 

2.The defendant denies. No agreement has been appended in support of  the allegations in the Complaint. The plaintiff's complaint indicates the existence of an assignment, which was not appended to the complaint per the rules of civil procedure 

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.