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Critique of Answer to Summons & Complaint... Please Help


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Hola,

 

My first post and I apologize in advance if this is in the wrong forum. 

I received a summons and complaint on Tuesday the fourteenth of May.  I have researched the boards and forum, but honestly there is sooooo much information, I’m totally confused.  So if anyone out there can look over the summons and complaint and my drafted answer below, and give me any ideas, tips and or comments I would be grateful.  I'm just overwhelmed by this whole legal process....

 

Here is some background:

1. Who is suing you? American Express Bank, FSB through an attorney in Tucson.

2. For how much? $9,352.60

3. Who is the original creditor? American Express

4. How do you know you are being sued? Summons and Complaint

5. How were you served? Delivered to my relatives house in person while visiting.  I just use this address as my US Address.  Never have lived in Arizona, obtained the credit card while living in Washington state and 15 years ago moved to the west coast of Mexico.  I now reside in Mexico and have for the past 15 years.

6. What was your correspondence (if any) with the people suing you before you think you were being sued? Little contact by phone, had signed up for one of AMEX's debt payment plans directly with AMEX.  Followed it but when the time limit for the no interest and lower payments ended, the payments were just too much and I told them so.  They would not lower the interest rate or the payments so I had no choice but to stop paying and I told them so.  Last contact with American Express: 5/5/2012, Last payment 1/9/2012, last charge 3/2/2011

Also, have never spoken with any of the debt collection agencies they hired except I did try to call the attorney who sent me the summons after I received it, to see if I could settle.  The girl I spoke to said she was not authorized to deal with people out of the country and would have one of the lawyers contact me.  To date, no contact. 

7. Where do you live? Mexico

8. When is the last time you paid on this account? January 9, 2012

9. What is the status of your case (if anything has been opened)? Don’t know what this means.

10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No

11. Did you request debt validation before the suit was filed? No

12. Does your summons require a response in writing?  Yes. Within 20 days.  20th
day is June 3rd
.  However, I have to DHL answer back to Arizona by Tuesday May 28th, so time is short.

13. What evidence did they send with the summons?  I received three forms from the process server -- 1)Summons Civil, 2) Complaint (contract), and a 3) Notice to Litigants: Requirements to appeal a decision of the justice of the peace.

No evidence was attached.

14. What is the SOL on the debt? I don’t know


Sent to my name and John Doe

 

Plaintiff, through undersigned counsel, alleges as follows:

1.  Defendant (s) (is are) husband and wife and) (a) resident of Maricopa – North Valley County, Arizona.  Acts of individual defendants occurred on behalf of their respective marital communities.  If this debt is a pre-marital debt, the non-debtor spouse is joined only as a necessary party pursuant to the law affecting community property.

2.  This court has subject matter and personal jurisdiction.

3.  All pertinent acts and omissions giving rise to this lawsuit occurred in Maricopa – North Valley County, Arizona.

4.  All conditions precedent to Plaintiff’s right of recovery have occurred.

5.  by accepting and using an offered credit, defendant entered into a credit card agreement with American Express bank FSB under account number ending in XXXX and agreed to the applicable terms and conditions of that credit card (the Debt)

6.  Defendant is in default under the terms of the debt.  The present amount owed under the terms of the debt, after all setoffs, is $9,362.50

7. Despite demand to do so, defendant have failed to pay the amount owed.

8.  The acts and omissions of defendant consititute a breach of contract.  Plaintiff has been damaged thereby.

WHEREFORE, Plaintive prays as follows:

1.  For judgment against Defendant in the sum of the balance of $9.352.60

2.  For costs incurred herein: and

3.  For such other and further relief as the court deems just and proper.

After much research I came up with the following Answer.  However, several points just don’t seem right.   So any critique is appreciated:

MY ANSWER:

In response to the plaintiff’s complaint the defendant responds as follows:

1.  In response to paragraph one of Plaintiff’s complaint,  Defendants  admit they are husband and wife but deny all remaining allegations.

2.  In response to paragraph two of Plaintiff’s complaint, Defendant are without sufficient knowledge to either admit or deny the allegations contained therein and therefore deny them.

3.  In response to paragraph three of Plaintiff’s complaint, Defendants deny the allegations contained therein.

4.  In response to paragraph four of Plaintiff’s complaint, Defendants are without sufficient knowledge to either admit or deny the allegations contained therein and therefore deny them.

5.  In response to paragraph five of Plaintiff’s complaint, Defendants admit in part. I did have an account with American Express and deny in part.  I have been presented with no evidence that the account I had with American Express is the same account as the debt alleged in this complaint.

6.  In response to paragraph six of Plaintiff’s complaint, Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein and on that basis generally and specifically denies the allegation contained therein and leaves the Plaintiff to provide proof.  Defendant demands strict proof thereof.

7.  In response to paragraph seven of Plaintiff’s complaint, this request calls for admission of a matter Defendant has denied and thus it is improper.

8.  In response to paragraph eight of Plaintiff’s complaint, Defendant denies the allegations contained therein.

DEFENSES:

1.  Plaintiff has failed to state the basis of the lawsuit:  They did not cite an actual state law which was violated.

2.  Defendant reserves the right to plead affirmative defenses that may become applicable and/or available at a later time.

3.  Defendant reserves the right to submit counterclaims that may become applicable and/or available at a later time.

STATEMENT FOR INFORMATIONAL PURPOSES:

I do not live in Arizona and never have.  The address in AZ is the address of a relative.  At present I reside in the state of Nayarit in the country of Mexico and have for the past 15 years.  I have no assets in the United States.  I have tried to speak with the attorney for the Plaintiff’s about this summons and complaint and to date have not received a reply.

WHEREFORE, Defendant XXXXX, respectfully submits that the Court should dismiss or deny the Plaintiff’s complaint.  The Defendant prays for Dismissal of the complaint by the Plaintiff and reimbursement of my court costs.

Further the Defendant sayeth not.

Dated this 27 of May, 2013

By the Defendant acting pro se

 

That’s it.  I’m not sure what to expect, but at this moment I cannot pay the amount they are asking.  I’m really judgement proof having no assets in the US other than one old car registered in my name in Arizona.  The car is here in Mexico and a 1997 with over 140,000 miles on it, so don’t think they would be foolish enough to come here and take it, but you never know.  It’s probably worth $3,500 dollars.

What I would like to do is to delay the judgement or maybe if my defense is good enough get this dismissed. 

Thanks for any help anyone can give me,

 

 

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5.  In response to paragraph five of Plaintiff’s complaint, Defendants admit in part. I did have an account with American Express and deny in part.  I have been presented with no evidence that the account I had with American Express is the same account as the debt alleged in this complaint.

 

 

I would not admit, that will get you a MSJ.  I would say Defendants are without sufficient knowledge to either admit or deny the allegations contained therein and therefore deny them.

 

Also I'm not sure about asking for the dismissal, you are answering the complaint, it is not a motion to dismiss.  Check the az rules of civil procedure, you may be required to enter a motion to dismiss in lieu of an answer for improper venue.  (although I don't know what venue would be proper for out of country, don't know how that works)  If you answer, and don't motion, the court may allow the case to continue.

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@KWay

 

1.  Plaintiff has failed to state the basis of the lawsuit:  They did not cite an actual state law which was violated.

 

I'm not sure about the rest of your questions, but the above won't work.  The cause of action is breach of contract.  They did state the basis of the lawsuit.

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Thank you. All good ideas. I've changed my answer accordingly.

The one I'm most concerned about is answer #7. In response to paragraph seven of Plaintiff's complaint, this request calls for admission of a matter defendant has denied and thus is improper.

Do you think that one will work? I really don't want to admit to anything. It's my understanding that I can change my mind later and admit to something, but if I admit it now, it's in the record and can't be changed. Is this correct thinking?

Thanks again for all the help. Much appreciated.

KWay

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Great. I will leave it in. One more question. Since the Summons was sent to me and John Doe as my husband, should I say defendant or defendants? Then when it comes to signing the answer, should he sign? Or is it better to just use my name and leave his out? The credit card was obtained by me before we were married. He had a card and used it, but I am the responsible party.

What do you think?

KWay

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If you include him now and you win, they can't come back and sue him separately.  It would depend if you live in a community property state.  Especially if he had a card with his name on it.  Here in Colorado, it is not a community property state UNLESS it is for medical bills, then they can sue spouse. All other type of accounts, they have to sue the one who took out the account, unless spouse co-signed.   I would look it up. 

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oh and yes I know you live out of the country, but AZ law would apply since that is where the suit is.  I would still look into filing a motion to dismiss based on improper venue.  Someone with more knowledge should weigh in though, I don't know how that would work if it is an out of country type debt.

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Thanks. I will look into that. I checked and both Washington where I got the card and Arizona where I'm being sued are Community Property states. So maybe I will include him now. Should I change the name from John Doe to his real name and just have him sign it too? They probably already know who he is, so it might be better.

I'm researching the improper venue. I'm not exactly sure how that works, but I'm on it.

Thank you for all your help. You have been very kind to give me your advice and I really appreciate it.

KWay

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@KWay

 

I'm not sure  the response to #7 works because at the time they wrote the complaint, they had no idea that you denied the allegation.  So to say that the allegation is inappropriate doesn't really make sense.

 

You really need to speak to an attorney.  Just because the case was filed in AZ doesn't mean it should have been filed in AZ.  You opened the account in WA but haven't lived in the US for 15 years.  The AZ address is merely to receive mail.  I don't know that it would make AZ the proper venue to file suit.

 

Like I said, you need to talk to an attorney.  Since you have relatives in AZ, see if one of them will contact the AZ Bar Association and ask for the Lawyer Referral Service.  In my state, if I get the name of a consumer attorney from that service, that attorney will give me a consultation at a reduced fee.  Some attorneys will provide that consultation over the phone.   That way, you could get some definite answers pertaining to your particular situation.

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Thank you for your insight. However, I need to send my answer tomorrow by DHL for it to reach the courts in time. So I really don't have time to contact a lawyer. Memorial Day is not a holiday down here. So, if I may be so bold as to ask.... how would you answer the seventh question without incriminating yourself?

Also, I have added two Affirmative Defenses as suggested by Shellieh98 and I feel really good about them. Here is what I added:

DEFENSES:

9. First Affirmative Defense (Improper Venue / Forum Non Conveniens). Venue is improper or unduly inconvenient.

10. Second Affirmative Defense (Lack of Personal Jurisdiction). This Court lacks personal jurisdiction over Defendants.

11. Defendants reserve the right to plead affirmative defenses that may become applicable and/or available at a later time.

12. Defendants reserve the right to submit counterclaims that may become applicable and/or available at a later time.

STATEMENT FOR INFORMATIONAL PURPOSES:

We do not live in Arizona and never have. The address in Glendale, AZ is the address of a relative. At present we reside one thousand miles from the Arizona border in the middle of Mexico in the State of Nayarit and have for the past 15 years. We have no assets in the United States. We have tried to speak with the Plaintiff’s attorney about this summons and complaint and to date have not received a reply.

WHEREFORE, Defendants XXXXXXX and XXXXXXX, prays as follows:

1. For the Court to deny the Plaintiff’s complaint.

2. For reimbursement of our court costs

3. For such other and further relief as the Court deems just and proper.

I went ahead and changed John Doe to my husband's name so if it does get dismissed or denied he will be included.

Thanks again for all your assistance. You are helping to turn a frightening seemingly impossible situation into one where I feel empowered to help myself. Nice....

KWay

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Thank you both for your help. I had to mail it today for it to have any chance of making it on time. It's in the hands of the courts now. I'll report back when I have more information. Wish me luck.

Happy Memorial Day....

KWay

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