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PLZ HELP! Need help with Judgement ON THE Pleadings


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a member suggested this motion.( which is briliiant) i believe,  but it it is one i don't know how to begin. In short....i showed up in court. magistrate gave me 14 days to respond to complaint (which had no documentation attached) i filed a motion for more definite statement against jdb ASSET ACCEPTANCE. and still they have nothing, zero with my name, not even 1 credit card statement. no proof.....Please help....in ohio...yet they denied my motion....i just need a outline....if anyone can help for motion for judgement on the pleadings. even the magistrate said to their lawyer...you have to come up with something with "at least a credit card statement" still nothing.  

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a member suggested this motion.( which is briliiant) i believe,  but it it is one i don't know how to begin. In short....i showed up in court. magistrate gave me 14 days to respond to complaint (which had no documentation attached) i filed a motion for more definite statement against jdb ASSET ACCEPTANCE. and still they have nothing, zero with my name, not even 1 credit card statement. no proof.....Please help....in ohio...yet they denied my motion....i just need a outline....if anyone can help for motion for judgement on the pleadings. even the magistrate said to their lawyer...you have to come up with something with "at least a credit card statement" still nothing.  

 

Motion for judgment on the pleadings is just what it suggests . . . pleadings - in the plural. Complaint and Answer.

 

You must first file your answer, then you can file motion if you want to.

 

If you don't think the complaint stated a cause of action, the proper response would have been to file a motion to dismiss (for failure to state a claim). I would not suggest doing so now, however. (Your local rules may prohibit successive filings of "Rule 12" motions.) You need to answer the complaint, then move on from there.

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Does Ohio have dismissal in lieu of answer in the civil procedure code? If not you need to answer and then you can file a Motion for Judgement with Respect to the Pleadings or what ever is the appropriate language for your state. Of course that doesn't preclude Asset from curing their defects. 

 

As far as the motion it self, it's essentially the same as a Motion for Summary Judgement but no evidence is taken into account. The best summation I've seen is; "Motions with Respect to Pleadings may only reference deficiencies contained in the "four corners" of the complaint"

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ok so i guess that would be my next question. will the judge force me to answer even though the magistrate even said to the lawyer "i wouldn't have ruled on this you don't even have a credit card statement, be prepared to produce one." in the pre- trial i quoted brown vs. columbus manufactiring and the magistrate said to the lawyer to have a running total with a provable sum. they i forgot to include proof of service, even though i had it . on the motion for summary judgment and the judge basically warned me against such fo pa's in the future. i am law dumb. and  i have gottten this far by the help of this site. i clearly jsut have no idea how to proceed.thank you all for you contributions. i guess one thing we all have in common is beating the big bad JDB!!!

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Does Ohio have dismissal in lieu of answer in the civil procedure code? If not you need to answer and then you can file a Motion for Judgement with Respect to the Pleadings or what ever is the appropriate language for your state. Of course that doesn't preclude Asset from curing their defects. 

 

As far as the motion it self, it's essentially the same as a Motion for Summary Judgement but no evidence is taken into account. The best summation I've seen is; "Motions with Respect to Pleadings may only reference deficiencies contained in the "four corners" of the complaint

yes. i think i should go for motion to dismiss. or summary judgment, what's the worst that could happen? famous last words i suppose.

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yes, i will and judge didn't deny. asset did.

I. Introduction

The Plaintiff states in Paragraph (2) "The Defendant entered in to an agreement for Credit Card with Bank, account number XXXXXXXXXXXX-" Defendant is without knowledge about the truth and therefore denies allegations contained in Paragraph (2) Plaintiff has failed to provied the Defendant with any kind of account numbers or documentation for alleged debt.

The Plaintiff states they are now the owner of the alleged account, purchasing the same, and entitled to all rights as owner therof." Paragraph(3) Plaintiff has failed to provide the Defendant with any kind of account numbers or documentation for alleged debt. Defendand denies the allegations contained in Paragraph(3) as there is not, nor has there ever been any agreement, written, oral, or implied with the Plaintiff and Defendant.

The Plaintiff in paragraph (4) of its complaint states that the alleged account is in default and remains unpaid. There is no copy of the Credit Card Agreement attached to the Plaintiff's Complaint as required by O.R.Civ.P.10(D) or a running account statement, starting at zero and showing all credits and debits during the life of the alleged account. There is nothing attached to the complaint.

The Plaintiff states in paragraph(5) The amount owing on this account is $3,063.11 plus accrued interest. There is not a running account total also required by O.R.Civ.P.10(D)

II. O.R.Civ.P.10(D) Requires a Plantiff pleading a Cause of Action pursuant to a Written Instrument to attach a complete copy of the Written Instrument.

O.R.Civ.P.10(D) provides:

(D) Copy must be attached when any claim of defense is founded on an account or other written insturment, a copy therof must be attached to the pleading. If not attached, the reason for the omission must be stated in the pleading.

The proper procedure for curing an insufficient attachement to a pleading would be for a more definite statement under O.R.Civ.P.12(E) see: Point Rental Co. v. Posani (1976), 52 Ohio App.2d 183,186, 368 N.E. Schwatz v. Bank one (1992), 84 Ohio App. 3d 806,809 619 N.E.2d 10;Lorain Music Co. v. Eidit (Nov.21,2000) Crawford App. No.3-2000-17, unreported, at 4-5 and Young v. Neuimeier (Nov.5,2002) Van Wert App. No.15-02-04,2002-Ohio-6009@6-7.

Even if the Plantiff were to cure the deficiency, it still has not attached an account that comports to the requirements of the Ohio Rules of Civil Procedure or a complete signed copy of that written instruement, identifying Kiera L. Cain as the debtor to its complaint.

If the Plaintiff's complaint is to comply with O.R.Civ.P.10(D), it must attach a complete copy of the account to the complaint.

In the case of Brown v. Columbus Stamping & Manufacturing Co.(1962)9 Ohio App. 2d 123, 30 Ohio Op. 2d 143, 223 N.E.2d 373, the Franklin County Court of Appeals described what a proper account is in the following terms:

An account must show the name of the party charged, it begins with a balance, preferbly zero or with a sum recited that can qualify as an account stated, but at least the balance should be a probable sum. Following the balance, the item, or items, dated and identifiable by number or otherwise, representing charges, or debits and credits should appear. Summarization is necassary showing a running or developing balance or arrangement which permits the calculation of the balance claimed to be due. Id. at 125, 38 Ohio, Op.2d at 145,223 N.E. 2md at 35.

There is no account attached to the complaint at all never mind that it does not comport with the requirements set forth in Brown v. Columbus Stamping & Manufacturing Co.

There is no credit card contract assigned attached to the Plaintiffs Complaint. There is not even a "NOTICE OF ADDITIONAL OBLIGATION INFORMATION", generated by the Plaintiff or Plaintiffs legal council. One would think that since Asset Acceptance has failed to attach the credit card contract, that in light of the report and recommendations of the Federal Trade Commision (FTC), in its report titled "Repairing a broken system; Protecting Consumers in Debt Collection Litigation & Arbitration," it would have been following best practice to do so.

The fact that their is nothing attached to the complaint, and it does not comport in anyway with the requirements of O.R. Civ.P. 10(D) nor does it satisfy the statute of fraud. The Plaintiff does not present any attachedment with the Defendants signature on it.

The Defendant for the reasons stated above has brought this motion for a more definative statement per O.R.Civ.P.12(E)

The Defendant respectfully moves this Honorable Court to order the Plaintiff to amend his Complaint to comply with O.R.Civ.P.10(D) and produce an account statement that comports to the law and a complete copy of the credit card contract, identifying her as the debtor and with her signature within (14) days of this order, or dismiss Complaint without predjudice.

Copy: complete moron, attorney for the plaintiff OH . The magnificent court of my city of residence

Respectully Submitted,

__________________________

Helpless Pro Se

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I basicly copied Elite's motion with a few changes the part that im confused with is assets assanign response.

Now comes Plaintiff, xxxx and hereby responds to defendants motion for MDS and asks the is Court to deny Defendant's motion for reasons set forth below.

I. Facts

Complaint is this matter was filed to recover a balance which arose from Defendant's alleged use of a xxxxxx credit card account. Service was perfected and defendant has filed a Motion for MDS pusuant to OHio Civil Rule 12(E)

II. Defendants motion for MDS is imporpper.

Civil rule 12 (E) states:

If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, he may move for a DS before interposing a responsive pleading.

defendant has posed such a motion to the court. However, there is nothing in Plaintiff's Complaint that is so vague as to prevent XXXX from answering. To the contrary, it is clear from reading the complaint that plaintiff alleges defendent applied for a xxxx c.c. and xxxx failed to pay the balance due, that the debt was asssigned to Plaintiff for collections and that therefore defendant owes a sum of money to plaintiff. none of the foregoing allegations are so unclear that defendant could not possilby respond. Therefore xxx Motion for MDS is denied.

III.

Defendant argues Plaintiff's complaint must inclued a comp of the contract and a running balance of his account.( I'm a her and they us "her and him" interchangably throughout) The Complaint included Defendant's name (true) and account number. (14 digits) attached to the complaint is and affidavid of the account and copies of statements in the Defendant's name. (not true)

In the case of blah blah blah the 11th district court of appeals found that the document attached to the pleading was adequate to put defendant on notice and to allow defendant to file a proper responsive pleading. The court focuses on the fact that the plaintiff established a "provable sum" Similarly, the 4th appellate district has stated that a pleading stae in an acion on an account, the beginning balance must be a provable sum, not a proven sum.

Defendant has notice of the claim herein and anple opportunity to form an answer. For the forgoing reasons. Plaintiff respectfully request that this honorable court deny defendants motion for DS.

Respectuflly submitted,

blah blah blah

attorney's for plaintiff

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