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Need your help! Filing answer/motion within 24 hours


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First, thanks to everyone for all their help here in the forum. Here's the case in a nutshell:

 

I worked as an executive for a Florida credit union for 11 years. They eliminated my position just over two years ago, and I've been out of work since. I have a Visa card with them that I acquired from them years ago not long after I was hired. I used the card during the past two years. Now I've accumulated over $8k on that card. They filed suit against me, through an attorney, at the end of February. I was served on March 9th and I've written an answer, and I plan on filing the answer and CoS by Friday the 29th to meet the 20-day limit on answers.

 

I'm filing BK within the next 15-20 days or so and this card/suit will be on the list. My BK attorney is NOT representing me in the lawsuit by the OC for the CC, so I am representing myself PRO SE. I want to file an answer so they don't get a judgment before the automatic stay kicks in when the BK is filed.

 

Here's the actual complaint, redacted:

 

 

feb0aa72-redacted_complaint.jpg

 

In my answer I will be denying 2, 3, and 4.

 

HOWEVER...

 

According to Florida Rules of Civil Procedure the lawsuit is required to state a Cause of Action, which appears to be missing here.

 

FRCP Rule 1.140:

 

( b ) How Presented. Every defense in law or fact to a claim for relief in a pleading shall be asserted in the responsive pleading, if one is required, but the following defenses may be made by motion at the option of the pleader: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a cause of action, and (7) failure to join indispensable parties. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. The grounds on which any of the enumerated defenses are based and the substantial matters of law intended to be argued shall be stated specifically and with particularity in the responsive pleading or motion. Any ground not stated shall be deemed to be waived except any ground showing that the court lacks jurisdiction of the subject matter may be made at any time. No defense or objection is waived by being joined with other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert any defense in law or fact to that claim for a relief at the trial, except that the objection of failure to state a legal defense in an answer or reply shall be asserted by motion to strike the defense within 20 days after service of the answer or reply.

 

 

FURTHEMORE, later in the rule:

 

The defenses of failure to state a cause of action or a legal defense or to join an indispensable party may be raised by motion for judgment on the pleadings or at the trial on the merits in addition to being raised in either a motion under subdivision ( b ) or in the answer or reply. The defense of lack of jurisdiction of the subject matter may be raised at any time.

 

Link to FRCP: Linky

 

SO...

 

It appears that as part of my answer I should file a motion to dismiss based on failure to state a CoA. Is that correct? If YES, then do I put that under an "Affirmative Defense" section? I have no affirmative defenses on my answer as of now. If so, how do I word it?

 

Should I file the motion separately?

 

Examples will be greatly appreciated!

 

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Allegation #4 ...........looks like 'Account Stated' to me.

 

I have no idea what you mean by that.

FYI: Neither of the exhibits has an account number on them. Not a single one.

 

And you care about this why if you're filing BK in the next 15 to 20 days, that makes no sense to do anything with this suit other than use is for extra toilet paper if you're filing BK before they could even enforce a judgement. 

 

I care because:

 

A ) I don't want them to walk away with a judgment without at least trying to slow them down;

B ) 15-20 days for BK filing is only an estimate, what if it gets delayed for some reason?

C ) I have no idea how quickly they can win and enforce judgment;

D ) They pissed me off.

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Allegation #4 ...........looks like 'Account Stated' to me.

 

Ok, I went and read up on "Account Stated" and now understand it. Are you saying that they don't have to explicitly state in the suit that they are using the theory of "account stated" to sue under the theory of AS? Because what you see above is the entirety of the suit except for the exhibits.

 

Also please note:

 

A ) The statement of account in Exhibit A has NO account number on it;

B ) All of the boxes in the alleged CC application are blank, except for my name and what appears to be a signature similar to my own

        (all fields except NAME on the application are blank, address, phone, employer, co-applicant, income, etc)

C ) Neither my name or account number appears on the alleged terms document attached as Exhibit B.

 

Can I move to dismiss in my answer for any of those reasons?

 

The debt exceeds my ability to pay. My wife, who is the only person with income (SS disability) in our household is not named in the suit. I own 50% of two cars, and I don't want either of them repossessed and disposed of to pay toward this debt. We own no real estate property (our house was sold on short sale on Dec 28).

 

I just don't want to make this easy for them. I would like to have the case dismissed over a technical mistake on the part of the attorney, or on a lack of evidence if possible, simply because I don't want to make this easy or cheap for them.

 

I'm also not opposed to telling the credit union's collections dept (headed up by one of my former co-workers with whom I had a great working relationship) about my judgment-proof status, my BK, everything. I already told the attorney when the suit was filed. I figure if I do let them know, they might drop the suit or if I get it dismissed, not bother to re-file if they know they won't get anything now. Of course I could have income in the future, but the BK will block them collecting anyhow.

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Ok, I went and read up on "Account Stated" and now understand it. Are you saying that they don't have to explicitly state in the suit that they are using the theory of "account stated" to sue under the theory of AS? Because what you see above is the entirety of the suit except for the exhibits.

 

These are allegations; the bare bones minimum to establish their case.  They don't necessarily have to say "We are suing you under the account stated theory of law".

 

Also please note:

 

A ) The statement of account in Exhibit A has NO account number on it;

B ) All of the boxes in the alleged CC application are blank, except for my name and what appears to be a signature similar to my own

        (all fields except NAME on the application are blank, address, phone, employer, co-applicant, income, etc)

C ) Neither my name or account number appears on the alleged terms document attached as Exhibit B.

 

Can I move to dismiss in my answer for any of those reasons?

 

Highly doubtful at this time; early dismissals are usually based on procedural issues (SOL, venue, incorrect defendant .......etc.).

 

The debt exceeds my ability to pay. My wife, who is the only person with income (SS disability) in our household is not named in the suit. I own 50% of two cars, and I don't want either of them repossessed and disposed of to pay toward this debt. We own no real estate property (our house was sold on short sale on Dec 28).

 

I just don't want to make this easy for them. I would like to have the case dismissed over a technical mistake on the part of the attorney, or on a lack of evidence if possible, simply because I don't want to make this easy or cheap for them.

 

I'm also not opposed to telling the credit union's collections dept (headed up by one of my former co-workers with whom I had a great working relationship) about my judgment-proof status, my BK, everything. I already told the attorney when the suit was filed. I figure if I do let them know, they might drop the suit or if I get it dismissed, not bother to re-file if they know they won't get anything now. Of course I could have income in the future, but the BK will block them collecting anyhow.

 

They really don't care about your financial problems ...... they just want their money.

I don't know what your state's exemptions are but you do sound like you're pretty judgment proof .........fight on!

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