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Update: Please help with RFA (Please help with another "/\/\id. F." lawsuit)


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We have a complaint we need to answer and not knowing what to do but know in our hearts we need to protect ourselves.

 

We sure are open to all suggestions and help.  We really don't know whether to just put admit or deny or perhaps we have to give an explanation to each.  Find included the complaint and Thanks to all who have helped.  Thank you Flyerfan as well!

 

Thanks to all.

 

 

 

Can we say admit or deny or do we have to answer each one?  The format of their summons is something different to us and many examples.  So Confusing

 

Thank you

 

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Here are the questions asked and we answered.

 

1. Who is the named plaintiff in the suit?

"/\/\dlnd Fndng"

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)


3. How much are you being sued for?

$1K

4. Who is the original creditor? (if not the Plaintiff)

Citibank USA

5. How do you know you are being sued? (You were served, right?)

Served

6. How were you served? (Mail, In person, Notice on door)

In Person

7. Was the service legal as required by your state?

Don't know, never signed anything.

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

None

9. What state and county do you live in?

 "Land of the Famous Potatoes: :)

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

Does not say

11. What is the SOL on the debt? To find out:

Statute of Limitations on Debts

4 years

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

No

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

No

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

less than a week now

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

They said "Affidavit of Plaintiff attached as Exhibit A" but we didn't receive any in our copy

 

Thanks to everyone.
 

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To be perfectly honest - I don't remember.  If anytime before or during 2009 if I had made payments.  The other one is for some other bank that I as well have no recollection.  None of these however have stated I asked for them to be cancelled which I did in 2009 when the military somehow had some cards on file and the information was stolen.  Ever since then I have used 0 credit cards.  But the 2 are actually the same verbage within the summons and from the same midland funding and the same law firm the same everything but 2 different supposed accounts.  As, like I stated though, the few cards that I had were basically kept up at that time and I did cancel each of them which neither of them show I had done so I am reluctant to believe these are mine but if they are they have not shown me that they are just saying they are.

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Read these two threads and then defeat them by arguing they can't prove standing.  For less than 1K they should drop this is record time with minimal work on your part.  

 

http://www.creditinfocenter.com/forums/there-lawyer-house/313112-all-inclusive-ive-been-sued-contacted-midland-whats-next-help-me.html

 

http://www.creditinfocenter.com/forums/there-lawyer-house/312714-standing-when-dealing-jdb.html

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Read these two threads and then defeat them by arguing they can't prove standing.  For less than 1K they should drop this is record time with minimal work on your part.  

 

http://www.creditinfocenter.com/forums/there-lawyer-house/313112-all-inclusive-ive-been-sued-contacted-midland-whats-next-help-me.html

 

http://www.creditinfocenter.com/forums/there-lawyer-house/312714-standing-when-dealing-jdb.html

 

Thank you so much Coltfan1972.  I appreciate this so much. 

 

One last question, From the first post - Since we are still lacking our answer to the summons due in a few days, Just for clarification do we just say admit or deny and when we deny-deny without any explanation?  Thank you again and although I am sure you all hear this a million times-please allow us to be the millionth and one to tell you your help is very much appreciated.  THANK YOU!

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Read these two threads and then defeat them by arguing they can't prove standing.  For less than 1K they should drop this is record time with minimal work on your part.  

 

http://www.creditinfocenter.com/forums/there-lawyer-house/313112-all-inclusive-ive-been-sued-contacted-midland-whats-next-help-me.html

 

http://www.creditinfocenter.com/forums/there-lawyer-house/312714-standing-when-dealing-jdb.html

 

....and I'm living proof!  Fellow statesman, Coltfan1972 helped me with, not one, but TWO simutaneous suits from Midland; 10k and 1k respectively.  Listen to what he and other forum veterans opine.  If you do, you WILL win if you just take it step-by-step.  And remember this, in a worst-case-scenario, even if you DID owe money, it is CERTAINLY NOT TO MIDLAND!  They paid about 2 cents on the dollar, hope you will not answer the complaint, and get a summary judgement against you.  It is SO easy to NOT let that happen.

 

Good luck!

 

-J

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Read these two threads and then defeat them by arguing they can't prove standing.  For less than 1K they should drop this is record time with minimal work on your part.  

 

http://www.creditinfocenter.com/forums/there-lawyer-house/313112-all-inclusive-ive-been-sued-contacted-midland-whats-next-help-me.html

 

http://www.creditinfocenter.com/forums/there-lawyer-house/312714-standing-when-dealing-jdb.html

 

Thank you again for aiding us, I hope you won't mind but I would like to paste our answers to the questions here and then ask you to preview and help us with where and how to put the standing.  For some reason we cannot find standing where all we searched for Idaho.  Thank you for your continued support and please forgive us in our desire to do these things right.  There are areas that have three ? (???) that we do not know how to answer or if we must answer.

 

PARTIES. JURISDICTION AND VENUE

1. Plaintiff, at all times relevant, is the owner of the debt sued upon herein and is

authorized to do business in the State of Idaho by the Idaho Secretary of State.

 

DENY.  Defendant is without knowledge or sufficient information and, therefore, denies.

2. is an individual who upon information and belief

resides in the County of_State of Idaho.

 

Admit

3.Venue in this Court is proper pursuant to Idaho Code § 5-404.

 

DENY.  Defendant is without knowledge or sufficient information and, therefore, denies.

 

II.

CHRONOLOGY OF EVENTS

4. This action involves a breach of contract with Citibank Usa, N.a related to an

account ending in XXXX.

 

DENY.  Defendant is without knowledge or sufficient information and, therefore, denies.

5. Upon information and belief, the Defendant became indebted to Citibank Usa, N.a

for a debt incurred by the Defendant in the assigned amount of~(See Affidavit of

Plaintiff attached hereto as Exhibit "A").

 

DENY.  Defendant is without knowledge or sufficient information and, therefore, denies.

6. Upon information and belief, Plaintiff purchased the outstanding balance owed to

Citibank Usa, N.a on XX/XX/2XXX.

 

DENY.  Defendant is without knowledge or sufficient information and, therefore, denies.

7. Defendant has refused or otherwise failed to pay the current balance of~.

 

DENY.  Defendant is without knowledge or sufficient information and, therefore, denies.

8. Costs as of the date of filing the complaint: $96.00.

 

???

 

III.

FIRST CAUSE OF ACTION

BREACH OF CONTRACT

9. Plaintiff realleges paragraphs 1-8 and hereby incorporates them by reference and

further states:

 

 

10. The account was offered to Defendant and Defendant accepted by using the

account thus becoming bound by the terms and conditions of the contract but has refused or

otherwise failed to make the required payments and has now breached the contract.

 

DENY.  Defendant is without knowledge or sufficient information and, therefore, denies.

 

IV.

SECOND CAUSE OF ACTION

OUANTUM MERUIT

11. Plaintiff realleges paragraphs 1-10 and hereby incorporates them by reference and

further states:

 

 

12. Defendant requested services and/or merchandise by use of the account which

was then paid by Citibank Usa, N.a.

 

DENY.  Defendant is without knowledge or sufficient information and, therefore, denies.

13. Defendant knew, or should have known, that Citibank Usa, N.a expected

compensation back for the services and/or merchandise obtained by use of the account.

 

DENY.  Defendant is without knowledge or sufficient information and, therefore, denies.

14. It would be unjust to allow Defendant to retain the benefits received through the

use of the account without paying for those benefits.

 

DENY.  Defendant is without knowledge or sufficient information and, therefore, denies.

V.

THIRD CAUSE OF ACTION

PROMISSORY ESTOPPEL

15. Plaintiff realleges paragraphs 1-14 and hereby incorporates them by reference and

further states:

 

 

16. Defendant promised to comply with the terms and conditions ofthe account at the

time Defendant used the account or at the time Defendant signed for the account.

 

DENY.  Defendant is without knowledge or sufficient information and, therefore, denies.

17. Citibank Usa, N.a relied upon that promise that it would receive payments back

for the funds in which it spent on Defendant's behalf.

 

DENY.  Defendant is without knowledge or sufficient information and, therefore, denies.

18. Defendant failed to make the required payments to which Defendant promised to

do, and the reliance upon that promise was reasonable.

 

DENY.  Defendant is without knowledge or sufficient information and, therefore, denies.

 

VI.

FOURTH CAUSE OF ACTION

ACCOUNT STATED

19. Plaintiffrealleges paragraphs 1-18 and hereby incorporates them by reference and

further states:

 

 

20. An account was stated by and between Plaintiff and Defendant, wherein it was

ascertained and agreed that said Defendants owed the subject debt to Plaintiff and/or the assignor

of the subject debt Citibank Usa, N.a

 

DENY.  Defendant is without knowledge or sufficient information and, therefore, denies.

21. Defendant failed to make the required payments to which Defendant promised to

do.

 

DENY.  Defendant is without knowledge or sufficient information and, therefore, denies.

VII.

INTEREST

22. Pursuant to Idaho state law, Plaintiff is entitled to prejudgment interest against the

Defendant.

 

 

23. Pursuant to Idaho Code § 28-22-104, Plaintiff is entitled to post judgment interest

at a rate of 5.250%.

 

 

I

~.----------

VIII.

ATTORNEYS' FEES

24, Plaintiff is entitled to reasonable attorneys' fees against the Defendant under the

terms ofldaho Code § 12-120, Defendant(s) owes Plaintiff for costs and for fair and reasonable

attorneys' fees in the amount of $430,50 should this matter proceed by default, or if this matter is

contested, a reasonable amount according to proof.

 

 

 

and then the prayer...  Do we answer anything here?  What would be a good prayer for us?

 

IX,

PRAYER

WHEREFORE, Plaintiff prays for judgment against Defendant as follows:

a) The outstanding principal amount in the amount of ~lessany payment made

against that principal amount;

B) All costs incurred in bringing this action pursuant to Rule 54(d)(I) of the Idaho Rules of

Civil Procedure;

c) Reasonable attorney fees in the amount of $430.50 should this matter proceed by default,

or, if this matter is contested, a reasonable amount according to proof;

d) For prejudgment interest commencing on 01/15/2010 and accruing at the maximum legal

rate, until judgment is rendered against Defendant;

e) For post judgment interest, at the maximum legal rate, from the date ofjudgment until the

date the judgment is fully paid and satisfied;

f) Reasonable costs incurred by Plaintiff to collect the money judgment; and

g) Any further relief as the co urt deems just and equitable.

 

And, as stated earlier, where would we put anything about "standing" and how to phrase.

 

Sorry to ask so much from you all but I really want you to know we definitely appreciate it.

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You can admit to 3, the venue. That just means the court has jurisdiction, which they do. The ones where you put ??? do not really require a response by you. Send these to the lawyer along with a copy of the answer. Discovery copies don't go to the court. Don't change these, they are made for this creditor.

 

 

Requests for Production of Documents

 

1. The original signed application establishing the account

2. Charge slips bearing defendant's signature which establish use of the account

3. The original written agreement in which defendant allegedly assented to the terms of the account

4. A complete history of the account from day one, establishing the legitemacy of the balance sought

5. Any document setting forth the choice of law provision

6. Any document plaintiff intends to introduce at trial which establishes the exact day the subject account went into default

7. Any document  produced by plaintiff in the normal course of business which states and defines the exact statutes the choice of law provision seeks to enforce

8. Any recording, or transcript of any recording, of telephone calls in which defendant disputed the alleged amount owed

9. Any cancelled checks or copies of cancelled checks, or other verified payments on the account plaintiff intends to introduce as evidence at trial

10. Proof of mailing of monthly statements

11. Any documents evidencing that defendant retained monthly statements for an unreasonable amount of time

12. Any document produced by plaintiff in the normal course of business defining "unreasonable amount of time."

13. Documents establishing the chain of custody of the alleged debt, starting with the original creditor, each one to show in clear detail the manner in which the debt was allegedly transferred to subsequent assignees. These documents should show the account number and name of the account holder.

14. The forward flow document governing this transaction.

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Some additional suggestions to your questions on answering the complaint. 

 

 

8. Costs as of the date of filing the complaint: $96.00.
 
???
 
Denied. Defendant is without knowledge or information on how Plaintiff 
spends his money on unnecessary expenses and/or frivilous actions.
 
III.
FIRST CAUSE OF ACTION
BREACH OF CONTRACT
9. Plaintiff realleges paragraphs 1-8 and hereby incorporates them by reference and
further states:
 
???
 
Response: Denied.  Defendant has never had any account with, agreed to any contract, or applied for any credit or financial services with Plaintiff.  
 
IV.
SECOND CAUSE OF ACTION
OUANTUM MERUIT
11. Plaintiff realleges paragraphs 1-10 and hereby incorporates them by reference and
further states:
 
???
 
ANS: Deny No established or implied valid contract or Agreement exist between Plaintiff and Defendant. Plaintiff's quantum meruit claims, in the alternative to perceived values, are not grounded or relevant for services not entitled, and are not valid. No alleged remedies for breach flow from any alleged contract and Plaintiff cannot recover in quantum meruit for matters covered by contract which he has not proved title. Plaintiff's claims for alleged breech are not mutually exclusive and render claims for quantum meruit not relevant and denied. 
 
(Citing Prestige Homes Real Estate Co. v. Hanson, 151 Or App 756, 762, 951 P2d 193 (1997).
 
V.
THIRD CAUSE OF ACTION
PROMISSORY ESTOPPEL
15. Plaintiff realleges paragraphs 1-14 and hereby incorporates them by reference and
further states:
 
???
ANS: Deny Defendant has made no promise by words or conduct to the Plaintiff. There has never been any promise of any kind by defendant to plaintiff that would result in any change of position reqards defendants lack of contract with Plaintiff,  Defendant has agreed to no promise of any kind that would result in any inequity or change of position reqards plaintiffs lack of standing or existance of contract and therefore must DENY.
 
 
FOURTH CAUSE OF ACTION
ACCOUNT STATED
19. Plaintiffre alleges paragraphs 1-18 and hereby incorporates them by reference and
further states:
 
???
 
ANS: Deny No previous transactions, relationships, contracts or agreements have ever existed between parties, express or implied, Defendant has never applied for credit or open account with Plaintiff nor has any promise been made, express or implied, regarding payments of any amounts allegedly due. 
 
VII.
INTEREST
22. Pursuant to Idaho state law, Plaintiff is entitled to prejudgment interest against the
Defendant.
 
ANS: Deny ANS: Deny No agreement exists between Defendant and Plaintiff that would violate terms of 
 
aforementioned provisions of Idaho laws or statutes. Plaintiff's lack of standing and/or proof of title 
 
precludes any claims to the allegations contained in Paragraph 22 thus denied.
 
ATTORNEYS' FEES
24, Plaintiff is entitled to reasonable attorneys' fees against the Defendant under the
terms of ldaho Code § 12-120, Defendant(s) owes Plaintiff for costs and for fair and reasonable
attorneys' fees in the amount of $430,50 should this matter proceed by default, or if this matter is
contested, a reasonable amount according to proof.
 
???
 
 
ANS: Deny Plaintiff admits to purchasing the defaulted time barred debt allegedly owed by 
the Defendant, causing Plaintiff's injury to its own self, therefore Plaintiff is barred from seeking 
any fees or relief for allegations alleged in Paragraph 24. Plaintiff provided no proof of debt, 
copy of evidence, bill of particulars, or affidavits of witnesses Plaintiff intends to call with 
summons. No credit card accounts ever opened or existed between Plaintiff and Defendant. 
 
Improper notice of existence of contract may be a false filing of affidavit and Plaintiff, [Midland Funding LLC] , may be liable for statutory damages. (Supreme Count CV-10-5132 Eva Lauber & other Plaintiffs v. Midland Funding, LLC)
 
 
II. AFFIRMATIVE DEFENSES
 
Further the defendant asserts the following defenses and states:
 
 
As and for a First Defense
Plaintiff has not presented proof or has failed to state ultimate facts sufficient to constitute a claim either because it is not legally cognizable or because sufficient facts have not been alleged to make out a cognizable claim as per Fed. R. Civ. P. 12(B)(1)  lack of subject matter jurisdiction or Rule 12(B)(6) failure to state a claim upon which  relief can be granted.
.
 
As and for a Second Defense
Plaintiff has deficiency in their proof of standing excluding any right to sue, and further precluding subject matter jurisdiction the Oregon Circuit Court of Washington County in which the suit is filed. 
 
As and for a Third Defense
Plaintiff has failed to provide proof of any credit card agreement or evidence that it was offered, delivered, or that it's enforceable in order to prevail on any breach of contract or account stated. Plaintiff is deficient in proof of valid contract between parties of this immediate action. 
 
As and for a Fourth Defense
No evidence or record appears in the complaint supporting facts, other than related assumptions, or that the Plaintiff is an Assignee of and Assignee of the purported agreement, or that any transfer of title or rights to the Original Creditors Claims or ability to take action, are evident and remain unsubstantiated.
 
As and for a Fifth Defense
Plaintiff is deficient in proof that they are the real party of interest. Rule 26A of the Oregon Rules of Civil Procedure requires that every action be prosecuted in the name of the real party in interest and that, relevant substantive law creating the right being sued upon, the suit has been commenced by the party holding the substantive right to relief.  
 
As and for a Sixth Defense
False or misleading representations of a law suit for a "Stale Debt" (or threatening to file) by Professional Bureau of Collections of Maryland, inc, to initiate time-barred suit on a debt it knew should or should have known was barred by the statute of limitations, constituting a false representation regarding the character or legal status of the debt and a false representation or deceptive means to collect a debt allege violations of 15 U.S.C. §1692(e)(2)(A)
 
 
 
III. Defendant's Prayer for Relief
 
The Defendant has been injured by Plaintiff's actions:
 
 
WHEREFORE, Defendant prays that the Court allow Plaintiff to take nothing by virtue of its 
 
Complaint and requests motion to dismiss plaintiffs claims for relief pursuant to ORCP 21A(8) 
 
be granted as follows: 
 
 
1. Deny Plaintiff's request for relief on this [time barred] complaint in the sum of $10,000.00, which includes principal and interest, plus usurious interest at the rate of [9.0% per annum] from requested judgment date until Paid.
 
2. Deny Plaintiff's requests for Plaintiffs costs, disbursements and attorney's
fees incurred herein, with interest thereon from the date of judgment until paid;
 
3. Deny Plaintiff authorization for Plaintiff, its agents, attorneys and
assigns to contact third persons and entities for the purpose of collecting
its proposed judgment if entered in this Court and to reveal the existence of
Defendant's debt to such third persons and entities;
 
4. For judgment against Plaintiff for actual and statutory damages under
FDCPA.
 
5. Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.
 
6. It is further requested that [council for plaintiff] will kindly prepare an appropriate form of general judgment of dismissal with prejudice.
 
 
6. Such other remedies or sanctions the Court deems appropriate.
 
 
 
Dated this 29rd day of Jan, 2013 [todays date]
 
 
/s/___________ 
Defendants Signature Block
 
 
 
 
 
 
 
 
 
 
 
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Some additional suggestions to your questions on answering the complaint. 

 

 

8. Costs as of the date of filing the complaint: $96.00.
 
???
 
Denied. Defendant is without knowledge or information on how Plaintiff 
spends his money on unnecessary expenses and/or frivilous actions.
 
III.
FIRST CAUSE OF ACTION
BREACH OF CONTRACT
9. Plaintiff realleges paragraphs 1-8 and hereby incorporates them by reference and
further states:
 
???
 
Response: Denied.  Defendant has never had any account with, agreed to any contract, or applied for any credit or financial services with Plaintiff.  
 
IV.
SECOND CAUSE OF ACTION
OUANTUM MERUIT
11. Plaintiff realleges paragraphs 1-10 and hereby incorporates them by reference and
further states:
 
???
 
ANS: Deny No established or implied valid contract or Agreement exist between Plaintiff and Defendant. Plaintiff's quantum meruit claims, in the alternative to perceived values, are not grounded or relevant for services not entitled, and are not valid. No alleged remedies for breach flow from any alleged contract and Plaintiff cannot recover in quantum meruit for matters covered by contract which he has not proved title. Plaintiff's claims for alleged breech are not mutually exclusive and render claims for quantum meruit not relevant and denied. 
 
(Citing Prestige Homes Real Estate Co. v. Hanson, 151 Or App 756, 762, 951 P2d 193 (1997).
 
V.
THIRD CAUSE OF ACTION
PROMISSORY ESTOPPEL
15. Plaintiff realleges paragraphs 1-14 and hereby incorporates them by reference and
further states:
 
???
ANS: Deny Defendant has made no promise by words or conduct to the Plaintiff. There has never been any promise of any kind by defendant to plaintiff that would result in any change of position reqards defendants lack of contract with Plaintiff,  Defendant has agreed to no promise of any kind that would result in any inequity or change of position reqards plaintiffs lack of standing or existance of contract and therefore must DENY.
 
 
FOURTH CAUSE OF ACTION
ACCOUNT STATED
19. Plaintiffre alleges paragraphs 1-18 and hereby incorporates them by reference and
further states:
 
???
 
ANS: Deny No previous transactions, relationships, contracts or agreements have ever existed between parties, express or implied, Defendant has never applied for credit or open account with Plaintiff nor has any promise been made, express or implied, regarding payments of any amounts allegedly due. 
 
These are legalese paragraphs, they contain no allegations, therefore no response is needed by the defendant.
 
 
VII.
INTEREST
22. Pursuant to Idaho state law, Plaintiff is entitled to prejudgment interest against the
Defendant.
 
ANS: Deny ANS: Deny No agreement exists between Defendant and Plaintiff that would violate terms of 
 
aforementioned provisions of Idaho laws or statutes. Plaintiff's lack of standing and/or proof of title 
 
precludes any claims to the allegations contained in Paragraph 22 thus denied.
You do not deny this, it is up to the court to award attorney's fees.
 
 
ATTORNEYS' FEES
24, Plaintiff is entitled to reasonable attorneys' fees against the Defendant under the
terms of ldaho Code § 12-120, Defendant(s) owes Plaintiff for costs and for fair and reasonable
attorneys' fees in the amount of $430,50 should this matter proceed by default, or if this matter is
contested, a reasonable amount according to proof.
 
???
 
 
ANS: Deny Plaintiff admits to purchasing the defaulted time barred debt allegedly owed by 
the Defendant, causing Plaintiff's injury to its own self, therefore Plaintiff is barred from seeking 
any fees or relief for allegations alleged in Paragraph 24. Plaintiff provided no proof of debt, 
copy of evidence, bill of particulars, or affidavits of witnesses Plaintiff intends to call with 
summons. No credit card accounts ever opened or existed between Plaintiff and Defendant. 
Same thing
 
Improper notice of existence of contract may be a false filing of affidavit and Plaintiff, [Midland Funding LLC] , may be liable for statutory damages. (Supreme Count CV-10-5132 Eva Lauber & other Plaintiffs v. Midland Funding, LLC)
Case law is improper in an answer
 
 
II. AFFIRMATIVE DEFENSES
 
Further the defendant asserts the following defenses and states:
 
 
As and for a First Defense
Plaintiff has not presented proof or has failed to state ultimate facts sufficient to constitute a claim either because it is not legally cognizable or because sufficient facts have not been alleged to make out a cognizable claim as per Fed. R. Civ. P. 12( B)(1)  lack of subject matter jurisdiction or Rule 12( B)(6) failure to state a claim upon which  relief can be granted.
Plaintiff has presented a valid cause of action. Facts are not required in the complaint. federal rules do not apply in state court.
.
 
As and for a Second Defense
Plaintiff has deficiency in their proof of standing excluding any right to sue, and further precluding subject matter jurisdiction the Oregon Circuit Court of Washington County in which the suit is filed. 
Lack of standing is premature. How do you know they don't have the documents at this point? They'll challenge this and you'll have no answer.
 
As and for a Third Defense
Plaintiff has failed to provide proof of any credit card agreement or evidence that it was offered, delivered, or that it's enforceable in order to prevail on any breach of contract or account stated. Plaintiff is deficient in proof of valid contract between parties of this immediate action. 
Discovery issue, not a valid defense
 
As and for a Fourth Defense
No evidence or record appears in the complaint supporting facts, other than related assumptions, or that the Plaintiff is an Assignee of and Assignee of the purported agreement, or that any transfer of title or rights to the Original Creditors Claims or ability to take action, are evident and remain unsubstantiated.
Again, a discovery issue followed by the proper motion. This ain't it. LOL
 
As and for a Fifth Defense
Plaintiff is deficient in proof that they are the real party of interest. Rule 26A of the Oregon Rules of Civil Procedure requires that every action be prosecuted in the name of the real party in interest and that, relevant substantive law creating the right being sued upon, the suit has been commenced by the party holding the substantive right to relief.  
They are the real party in interest until you prove otherwise. Another standing issue.
 
As and for a Sixth Defense
False or misleading representations of a law suit for a "Stale Debt" (or threatening to file) by Professional Bureau of Collections of Maryland, inc, to initiate time-barred suit on a debt it knew should or should have known was barred by the statute of limitations, constituting a false representation regarding the character or legal status of the debt and a false representation or deceptive means to collect a debt allege violations of 15 U.S.C. §1692(e)(2)(A)
Improper, not a defense. This is the basis for a counterclaim under the FDCPA.
 
 
 
III. Defendant's Prayer for Relief
 
The Defendant has been injured by Plaintiff's actions:
 
 
WHEREFORE, Defendant prays that the Court allow Plaintiff to take nothing by virtue of its 
 
Complaint and requests motion to dismiss plaintiffs claims for relief pursuant to ORCP 21A(8) 
 
be granted as follows: 
 
 
1. Deny Plaintiff's request for relief on this [time barred] complaint in the sum of $10,000.00, which includes principal and interest, plus usurious interest at the rate of [9.0% per annum] from requested judgment date until Paid.
 
2. Deny Plaintiff's requests for Plaintiffs costs, disbursements and attorney's
fees incurred herein, with interest thereon from the date of judgment until paid;
 
3. Deny Plaintiff authorization for Plaintiff, its agents, attorneys and
assigns to contact third persons and entities for the purpose of collecting
its proposed judgment if entered in this Court and to reveal the existence of
Defendant's debt to such third persons and entities;
 
4. For judgment against Plaintiff for actual and statutory damages under
FDCPA.
 
5. Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.
 
6. It is further requested that [council for plaintiff] will kindly prepare an appropriate form of general judgment of dismissal with prejudice.
 
 
6. Such other remedies or sanctions the Court deems appropriate.
 
 
 
Dated this 29rd day of Jan, 2013 [todays date]
 
 
/s/___________ 
Defendants Signature Block
Prayers for relief are not arguable, it's just them telling the court what they want. Asking for a dismissal with prejudice is internet law, it never works.
 
 
 
 
 
 
 
 
 
 
 

 

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We thank each of you for your assistance, and we are ready to submit our first of the two tomorrow.  It's the first step so I am sure we will be bothering you all over and over again.

 

Thank you soo much for your time and great wealth of information.

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These are legalese paragraphs, they contain no allegations, therefore no response is needed by the defendant.
 
You do not deny this, it is up to the court to award attorney's fees.
 
Same thing
Case law is improper in an answer
Plaintiff has presented a valid cause of action. Facts are not required in the complaint. federal rules do not apply in state court.
Lack of standing is premature. How do you know they don't have the documents at this point? They'll challenge this and you'll have no answer.
Discovery issue, not a valid defense
Again, a discovery issue followed by the proper motion. This ain't it. LOL
They are the real party in interest until you prove otherwise. Another standing issue.
Improper, not a defense. This is the basis for a counterclaim under the FDCPA.
Prayers for relief are not arguable, it's just them telling the court what they want. Asking for a dismissal with prejudice is internet law, it never works.

 

In the OP's state they follow and incorporate the federal statutes so it is ok to style it as federal. I have never seen anything printed where you couldn't include caselaw in a pleading because you are allowed plead violations of statutes you could in the same vein plead violations of higher court rulings. Lets discuss that in another thread because this could become a new method to f the cases up of plaintiffs

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  • 1 month later...

Hello everyone,

 

Here's an update to my case --- so I'm back to ask for more help.

I sent my discovery to the plaintiff 30 days ago and they did not respond. Instead, they sent me their RFA and some photocopied documents:  bill of sale, affidavit from OC, etc. I attached their RFA, photocopied documents they sent along with it (**Not included in the attached file** is 1 page photocopy of an account statement with my name and address.), I also attached my answers to RFA -- which I need help on.  Please check my answers as I am not sure and please help me answer also those that are still unanswered.

 

This is pretty crazy here where they show my last payment: **Last payment date was in early 2007 and the last purchase date was in 2008.  Over a year between the two dates.  How is that possible to have a debt and they not cancel usage of a card without a payment for over a year?  In 2007 it is well beyond the five year SOL and the other makes it right on 5 years.  The dates were redacted so if they see this they will not know whom to pinpoint it to. 

 

 

Thank you all so much for your help.

 

HWarriors

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@Hwarriors

 

I'm not sure about your response to #1. 

 

Check out post #11 of the following thread.  It contains some admssion requests and good responses.  Some of the requests are similar to yours.  If it were me, I'd see if I could tailor the responses in that post to your admissions.

 

http://www.creditinfocenter.com/community/topic/319927-help-with-discovery-from-cavalry-spv-i-llc-41613/

 

Just a note:  The affidavit from Citibank doesn't reference you nor does it reference Home Depot.  Nothing in that affidavit proves Citibank sold a Home Depot card allegedly owed by you to Midland.  In fact, it doesn't prove Citibank sold any Home Depot credit cards at all.  Citibank issues their own cc cards and cc cards for many stores.

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@Hwarriors

 

I'm not sure about your response to #1. 

 

Check out post #11 of the following thread.  It contains some admssion requests and good responses.  Some of the requests are similar to yours.  If it were me, I'd see if I could tailor the responses in that post to your admissions.

 

http://www.creditinfocenter.com/community/topic/319927-help-with-discovery-from-cavalry-spv-i-llc-41613/

 

Just a note:  The affidavit from Citibank doesn't reference you nor does it reference Home Depot.  Nothing in that affidavit proves Citibank sold a Home Depot card allegedly owed by you to Midland.  In fact, it doesn't prove Citibank sold any Home Depot credit cards at all.  Citibank issues their own cc cards and cc cards for many stores.

@BV80

 

Thank you so much for your assistance!  The issue you brought to my attention about the affidavit is very helpful. Thank you!

Is my response in Number 9 correct and should I strike the affidavit, etc. or do anything before pre-trial while giving this answer?  I understand the answers we send to them the judge actually does not see until later or not at all so should I even mention this conflict?  Soon, I will be looking in the mirror in front of my family trying to get used to talking to the judge calmly :)

 

Thank you for the link.  Do you think  #3 answer from that link (DENIED) would be appropriate answer for our question #1? Or should it be "Cannot admit or deny. Request seeks admission relating to a vague and indefinite time period." I do apologize, I feel so silly.  Thank you for all your assistance and continued support.

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@Hwarriors

 

I think your response for #9 works.  I don't know about a flat out denial for #1 simply because they've provided a cc statement with your name it. 

 

Read your rules regarding motions.  It may be too early to try to strike anything.

 

They've told you when you made the last payment.  That puts this debt outside the SOL if ID is 5 years.   However, they included a date of last purchase.  As you stated, it's strange that a cc company would allow you to make a purchase on an account for which you had made no payments for a period of time. 

 

Is the OC reporting on your credit report?  If so, that entry should show the date the account was charged off.  If the charge off occurred before the date the JDB claims you made a purchase, there's no way you could have made a purchase.

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