Seadragon

Tell me again why I cannot put caselaw in my answer?

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In another thread a member stated we cannot put caselaw in an answer to the complaint. I say we can it is our free speech and it is relevant authority so why not. I am eager to see if this citing of caselaw in the answer kills their case, and makes an answer an offensive weapon.

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Caselaw is used for supporting legal arguments in motions,but using case law in your answer to plaintiffs complaint would not kill your case.What caselaw do you need to site to deny the allegations in a complaint against you.        

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In another thread a member stated we cannot put caselaw in an answer to the complaint. I say we can it is our free speech and it is relevant authority so why not. I am eager to see if this citing of caselaw in the answer kills their case, and makes an answer an offensive weapon.

 

If that's what you want to do, you most certainly can. You just don't have to, and doing so doesn't necessarily make  your answer any "better".

 

On the other hand, remember that affirmative defenses are held to the same  pleading standard as a complaint; you'll want to add enough detail there to remove them from the realm of mere "formulaic recitations."

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I do it when and where it is applicable. Like standing,,,,,,But generally you would put case law in you affidavit in support. But there is no rule that says you cannot use case law in your answer.

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Thank you Seadragon for posting this thread.

 

I have actually been trying to find this specifically in preparation for a possible suit from an OC

that will have an affirmative defense of SOL.

 

I was told, by several "real" attorneys on AVVO that I would just file my answer as usual

and wait for the plaintiff's reply.

 

(I had wanted to file an affy and brief with the answer to support the SOL but was told

that would be totally improper. I just would have to wait.

 

At least if I can work case law into the defense portion of my answer, I will be far

happier.

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Unless you're positive the case law would scare a plaintiff away, perhaps citing it would actually give them an idea about how you're going to argue your defense.  I don't know that I'd want to give them a heads up.

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If you are sure the SOL is expired, file a motion to dismiss in lieu of an answer. After all, why should you answer a complaint that has no legal basis. Also attach a counterclaim for an FDCPA violation, suing on a time barred debt. No speculation though, you need solid proof. If you are denied for any reason, have an answer ready to file.

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I would also recommend saving the case law for motions.

Think of the answer as an opening statement. It is not your case in it's entirety, it is the skeleton you are going to build your case on. Stating your case law now is like a boxer projecting his punches, they will see it coming and prepare for it.

It your answer is so strong as to stop the case dead, file a motion to dismiss, or if their complaint is so back, file a motion to strike their pleading, then use the case law in your motion in lieu of an answer.

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The answer in lieu is a dispositive motion. If it is denied, then you answer. If it is granted, no answer is required because there is no longer a case. The legal basis you refer to is procedural. (SOL) Anything non-procedural is argumentative and must be decided on the merits in court.

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There is no real reason I am aware of why you CAN'T put case law in your answer.  But it is rarely if ever done in practice. One reason is that it is limiting and you want to be as broad as possible.  For example, if you say that the case is barred by the SOL and cite the Resurgance case, plaintiff might argue that you are limited to an SOL argument that involves "borrowing" the SOL from another state.  If you later discovered that the case was barred by California's SOL, you might need to amend your answer to clarify.  But if you just allege that the case is barred by the SOL, you are not so limited.

 

It is very difficult to file a demurrer or motion to striked based upon the SOL (in California) as Bruno suggests.  THat is because plaintiffs usually allege that you defaulted less than 4 years ago.  So you can't file a demurrer which accepts all of the allegations in the complaint as true.  You have to do discovery, establish the true date of default, and then challenge the allegation in the complaint.  THis is usually done with a summary judgment motion.

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I was told, by several "real" attorneys on AVVO that I would just file my answer as usual

and wait for the plaintiff's reply.

 

 

At least if I can work case law into the defense portion of my answer, I will be far

happier.

Just on this page alone you have received a responce to your question from three of our REAL attorneys! Weigh their input and make your decision.

 

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Sea,

 

As you know since you've seen them, I put case law in my initial pleadings.   I do this for several reasons.   First, I want the other side to know that filing this lawsuit or defending this lawsuit is just a formality and if we are to this stage they have already lost, espically if I'm suing them.  I'm not going to lose so I want them well aware of the fact.   It's like Phil Jackson drawing up a play with 2 seconds left and the Bulls down by one.   Everybody in the world knew Jordan was going to get the ball and take the last shot, but so what, still could not stop it.  So I want to do the same thing by saying here is my argument, here is your argument before I even see it and here is my game plan that you can't do a damn thing about, then take the shot, hit the shot and win. 

 

I'm pro-se so I can get away with it because "I don't know any better"  Plus you simply can't unring the bell.  Yes the judge might not consider it or even look at it but if you are dead on accurate if noting else it shows the other side you know what you're doing.   Where you can really hurt yourself is if you cite the wrong cases or law or put in an argument that the court did not hold was true, then you've really screwed up.  

 

So if you know what you're doing, and you want to send an early message that you just lost, I don't see any harm.  The worst is it will play no roll and nobody will pay any attention to it.   Not a bad worst case scenerio.   

 

For example, in my current suit, I knew the other side would argue bona fide error.  So in my initial complaint I already anticipated what their answer would be and filled my complaint with 8 Cir and U.S. Supreme Court precedent killing their arguement before they even made it.   Sure enough they argued bona fide error and when I had my deposition I was able to say, I knew you were a loser before you even made that arguement and here is the U.S. Supreme Court telling you so, the attorney response was "well you just know it all then right"  I said, yes, that's why I sued you to show you I was right.  

 

Now if you are not wanting to do that or want to string them along or heaven forbid don't have a strong case then I can see where it would not be smart to argue something and maybe, like CALAWYER said, tie you to a positon.   I guess it's just strategy, but if I have a strong case (which I'm going to have before I sue or defend) then I have no problem sending an early high and tight 99 MPH fastball right under the chin to knock the batter back off home plate and let them know they just got fight on their hands and the next pitch is coming at 101 MPH and in the same spot so get ready to hit the dirt.   :trainwreck:

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Debtzapper,

 

Nice find.  I think those are some very good examples.   Those complaints basically say here is just a tad bit of case law in case you don't think we have a case.   I think those are good examples of a good mix of stating a claim and not going overboard on throwing around precedent like it's already motion for summary judgement time.  

 

Obviously those cases would support the allegations even if not included so it's not like cite it or lose it, but I think it's a good mix. 

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It is more common to cite cases in a complaint than in an answer, especially in Federal Court.  The complaint must state a cause of action and to do so, you apply law to fact. 

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It is more common to cite cases in a complaint than in an answer, especially in Federal Court.  The complaint must state a cause of action and to do so, you apply law to fact. 

So it's almost like saying don't file a motion to dismiss, killing two birds with one stone?  Here is enough precedent to make my prima facie case so let's just skip over the MTD and start discovery. 

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I see how this would narrow the issues early on but if a case is dispositive such as using the imported SoL argument, Isn't it better to use caselaw on alleged facts early on. It is a sticky wicket and was the reason I wanted to have this discussion in a new thread because if the addition of caselaw can help in any way I would necessarily like to use it.

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In your case, it might be the thing to do because it could cause them to go ahead and dismiss the case.  I thought you were referring to including case law in denying an allegation or for a standing to sue defense.

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If you are sure the SOL is expired, file a motion to dismiss in lieu of an answer. After all, why should you answer a complaint that has no legal basis. Also attach a counterclaim for an FDCPA violation, suing on a time barred debt. No speculation though, you need solid proof. If you are denied for any reason, have an answer ready to file.

It would be denied. The OC reaged the claim of last payment date by a good 7 months

back in 2009 and refused to correct it although it has been disputed ever since.

 

Might do a preliminary objection (PA) and then see.

 

If it would not extend the 4 year SOL into 6 year contract if I initiated Arb I would do that

but not going that route.

 

I made last payment myself August 2008. A management company made last payment

in Feb. 2009. They were closed down in March of 2009.

 

Summer 2009 credit reports say date of last payment was 3-09, That in itself is wrong. They show the payment history and based on that it was Feb. 09.

Fall of 2009 credit reports say date of last payment is 10-09.

 

So will not be a slam dunk by any means.

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I see how this would narrow the issues early on but if a case is dispositive such as using the imported SoL argument, Isn't it better to use caselaw on alleged facts early on. It is a sticky wicket and was the reason I wanted to have this discussion in a new thread because if the addition of caselaw can help in any way I would necessarily like to use it.

 

 

If the defect appears on the face of the complaint, a demurrer is appropriate.  THat could happen, for example, if the complaint says that you defaulted on 4/1/09 and the complaint was filed in late March 2013.  If the JDB did not see the Resurgence issue, you could say that the proper SOL is 3 years and the complaint (on its face) shows that it was filed more than 3 years from default.

 

But if the complaint says you defaulted "less than 4 years ago",  it would be hard to convince a court that this allegation means more than 3 years ago.  You would probably need to submit evidence such as account statements to show the actual date of default.

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Guest usctrojanalum

I haven't read the thread really, but the answer is because it does not matter. An answer is really just a formality and in the grand scheme of things not really that important. No judge is going to read an answer and say oh that case law is brilliant and relevant I'm dismissing this case based on original pleadings alone.  90% of judges will never ever read the summons and complaint in any given case. so long as the answer or complaint are not defective on their face, cases are never won or lost on initial pleadings alone.

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I would use case law sparingly and with a specific purpose in mind. Opposing will read your initial pleadings well over 90% of the time. The content is important to an opposing party that doesn't live and breath templates. Even more so for those without unlimited shareholder funds to play in court.

 

In light of possibly creating a favorable settlement or dismissal a cite can be a good thing to share if perceived as a serious threat (to their case) or a solid defense. Also, it may have potential to preempt a dismissal attack.

 

If opposing is insane and will not stop until an adverse court order then it may be that the only reason to use a cite in an initial pleading could be to help prevent the court from dismissing, such as in a federal complaint. IMHO

 

Your initial pleadings should be concise and say no more than they need to say all while being sure to say everything they must say. Easier said than done in a world where courts are still sorting when and where heightened pleading standards do and don't apply.

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